Legal scholars denounce impact of Casey abortion ruling

By Michelle Bauman

Michael Stokes Paulsen, law professor at the University of St. Thomas in Minneapolis.

A panel of legal experts in the nation's capital outlined the destructive impact of Planned Parenthood v. Casey, the 1992 Supreme Court decision reaffirming the right to abortion as ruled in Roe v. Wade.

Michael Stokes Paulsen, law professor at the University of St. Thomas in Minneapolis, quoted his own law review article referring to the Casey ruling as “the worst constitutional decision of all time.”

Paulsen, who formerly served in the legal counsel office for the U.S. Department of Justice, explained that the Casey decision “misconstrues the Constitution” and produces results harmful to humanity. 

During a May 31 symposium at the National Press Club in D.C., he observed that that the majority of the Supreme Court justices acknowledged that Roe v. Wade – the 1973 decision legalizing abortion – was fundamentally wrong.

However, they adhered to the ruling anyway, out of a desire to preserve “public perceptions of the court’s own authority” and prestige. The fact that an incorrect decision was deliberately upheld out of vanity “accentuates the wrongness,” he argued.

Paulsen said that the court ruling generated further injustices, making it even more “atrocious.”

He noted that the justices in the case appealed to the doctrine of “stare decisis,” which holds that the court should abide by precedent and not disturb an already settled matter.

However, he said, this doctrine is not always followed, as the court regularly overrules and modifies previous judgments.

Rather, “stare decisis” is used to cover up decisions for which there is not a sound legal basis, he explained. For these reasons, he said, Casey’s affirmation of the errant Roe decision is a “judicial travesty and a deep human tragedy.”

Other panelists at Thursday's symposium discussed the effects of the historic decision twenty years after it was made.

Erika Bachiochi, former Bradley Fellow at the Institute for the Study of Religion and Politics at Boston College, refuted the idea that abortion is required under the U.S. Constitution’s equal protection clause.

In the Casey decision, the plurality opinion held that women’s ability to “participate equally in the economic and social life of the Nation” required abortion, she noted, adding that the idea of abortion as being necessary for equality has grown and taken hold in recent years.

However, this stance is based on a denial of the fact that men and women are designed differently with regard to reproduction, she said.

Men are reproductively autonomous because they are physically detached from the pregnancies that they help create, Bachiochi observed. However, women are obviously physically linked to their pregnancies, since their children grow inside of them.

In using the equality argument to defend abortion, its proponents are treating the biological reality of “detached male sexuality” as the standard for sexual equality, she explained.

This is an ironic approach, she said, noting that “seeking to mimic the autonomous, child-abandoning male through abortion would seem rather contrary to feminist ideals.”

Clarke Forsythe, senior counsel for Americans United for Life, observed that the Casey decision “dramatically changed the rationale for abortion rights.”

Rather than appealing to a “right to privacy,” the court said that Roe v. Wade could not be overturned due to the “reliance interests of women in abortion as a backup to failed contraception,” he said.

However, these ‘reliance interests’ have been undercut by facts that have become clearer in the past 20 years, he added.

Forsythe explained that “much of the public authority of Roe v. Wade is simply based on fear” that chaos would result if the case were to be overturned. In reality, however, the issue would simply return to the state legislative process, “where public opinion will be better aligned with public policy.”

In addition, he said, growing data indicate that abortion is not safer than childbirth, an argument that had previously been made. Multiple modern studies show that abortion poses significant risks to the health of the mother, both immediately and later in life.

Forsythe believes that the Roe decision will ultimately fall “from its own extreme scope.”

“I have no doubt whatsoever that Roe v. Wade will be overturned,” he said.