Stop the Tyrants Part II

Integrity Down the Drain

§G   Overruling Casey while Claiming to Uphold it

The majority, in deciding that Nebraska's partial-birth abortion ban is unconstitutional, claimed to merely be upholding the Supreme Court's precedent in the Casey ruling. But they have actually depended on Casey only as a disguise for their own hatred of Nebraska's ban. They have, in fact, (as should be obvious to you by now) for all practical purposes overruled the Casey joint opinion.

The majority's worry about the Nebraska law possibly banning the death-by-dismemberment abortion procedure, the dilation and evacuation (D&E), has nothing to do with any "undue burden" being placed on a woman's right to choose abortion over birth. As we will see in the next chapter, this concern is for the abortionists of America, and not for their patients.

In addition, while creating their new maternal health rule -- that any attempt at prohibiting an abortion method must contain a health exemption which is under the abortionist's control -- they completely ignored the actual jurisprudence of the very precedent they claimed to uphold. Justice Thomas confronted the majority's members with their deliberate ignorance:

The majority assiduously avoids addressing the actual standard articulated in Casey - Whether prohibiting partial birth abortion without a health exception poses a substantial obstacle to obtaining an abortion. And for good reason: Such an obstacle does not exist. There are two essential reasons why the Court cannot identify a substantial obstacle. First, the Court cannot identify any real, much less substantial, barrier, to any woman's ability to obtain on abortion. And second, the Court cannot demonstrate that any such obstacle would affect a sufficient number of women to justify invalidating the statute on its face. [Thomas dissent: Pages 36 & 37]

It is most odd to uphold a precedent by avoiding any mention of the legal standards created in that precedent. In truth, the majority's health exemption ruling in Stenberg has nothing to do with the Casey ruling at all. Once again I will let Justice Kennedy's dissent speak:

In deferring to the physician's judgment, the Court turns back to cases decided in the wake of Roe, cases which gave a physician's treatment decisions controlling weight. Before it was repudiated by Casey, the approach of deferring to physicians had reached its apex in [Akron v. Akron Center for Reproductive Health, Inc.], where the Court held an informed consent requirement was unconstitutional. ...The law was invalidated based on the physician's right to practice medicine in the way he or she saw fit. ...The Court's decision today echoes the Akron Court's deference to a physician's right to practice medicine in the way he sees fit.
The Court, of course, does not wish to cite Akron; yet the Court's holding is indistinguishable form the reasoning in Akron that Casey repudiated. No doubt exists that today's holding is based on a physician-first view which finds its primary support in that now-discredited case. [Kennedy dissent: Pages 13 - 14]

Justice Thomas also believes that the majority is resurrecting the expansively pro-abortion jurisprudence of the 1970's and early 1980's. He points out that the majority really admits as much by citing a case from that era to defend their holding in Stenberg:

The majority effectively concedes that Casey provides no support for its broad health exception rule by relying on pre-Casey authority, including a case [Thornburgh v. American College of Obstetricians and Gynecologists] that was specifically disapproved of in Casey for giving too little weight to the State's interest in fetal life. ... The majority's resort to this case proves my point that the holding today assumes that the standard set forth in the Casey joint opinion is no longer governing. [Thomas dissent: Page 34]

The members of the Stenberg majority have lied once again; this time so they can quietly return to the immoral and unethical abortion jurisprudence of the Burger Court.

See the Chapter 3 Table of Contents.

The Stop the Tyrants Project [page 17]: Chapter 3 (Section G)
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