The Center Holds!

1.

The Supreme Court’s ruling in Planned Parenthood of Southeastern Pennsylvania et al. v. Casey, the abortion decision handed down on June 29, was a great surprise, and astounded many observers. It may prove to be one of the most important Court decisions of this generation, not only because it reaffirmed and strengthened the reasoning behind the Court’s 1973 decision in Roe v. Wade that a woman has a constitutional right to an abortion until the fetus is viable, that is, can live outside the womb, but because three key justices also reaffirmed a more general view of the nature of the Constitution which they had been appointed to help destroy. Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter, all of whom were appointed by Ronald Reagan or George Bush, and two of whom had expressed substantial reservations about Roe v. Wade in the past, joined the two remaining liberal justices, Harry Blackmun and John Paul Stevens, in strongly reaffirming Roe. But the three Reagan-Bush nominees also voted to uphold certain regulations of abortion that pro-choice groups deplore, and that Blackmun and Stevens, in separate opinions, voted to strike down.

Though there are good reasons, which Blackmun and Stevens described, to disagree with parts of the decision of the three judges, it would be wrong to underestimate the importance for women of their clear endorsement of a basic right to free choice about abortion until viability.¹

They set out their views in a joint opinion that drew partial dissents from the Chief Justice, William Rehnquist, and Justice Antonin Scalia. Each of these dissents was joined by Justices Byron White and Clarence Thomas.² Scalia’s dissent, which was particularly bitter and heavy with sarcasm, emphasized what many observers have come to realize: that the three justices who signed the joint opinion, and who this term have rejected orthodox conservative positions not only about abortion but about freedom of religion and other issues as well,³ seem to have formed a surprising new force reasserting a traditional legal attitude toward constitutional interpretation, a force that has so far partially frustrated the right wing’s desire to make the Constitution less effective in protecting individual rights against majority will.

The Casey decision concerned the Abortion Control Act that Pennsylvania had adopted in 1982 to regulate abortion. Among other things, the act required doctors to give prescribed information to women contemplating abortion, forbade doctors from performing an abortion until at least twenty-four hours after the patient had received that information, required parental consent for a teenager’s abortion (though with a by-pass procedure allowing a judge to find a teen-ager mature enough to make her own decision), and required married women to inform their husbands before any abortion. Five abortion clinics and one doctor sued for a declaration that the statute was unconstitutional because it violated Roe v. Wade. The federal district court for the Eastern District of Philadelphia agreed that the statute was unconstitutional and struck down all the provisions of which the plaintiffs complained. But the Third Circuit Court of Appeals substantially reversed the district court: it agreed that the requirement to notify spouses was unconstitutional, but denied that any of the other provisions were unconstitutional, even on the assumption that Roe v. Wade remained good law. Both sides appealed to the Supreme Court, the clinics arguing once again that all the restrictions were unconstitutional, and Pennsylvania arguing that even the provision requiring that spouses be notified was not.

The Bush administration filed a separate brief urging the Court to take the opportunity to overrule Roe v. Wade outright, as the Reagan and Bush administrations had asked the Court to do in five previous cases. Many lawyers and commentators had expected the Court to overrule Roe soon, because they thought that at least two of four recent appointees—O’Connor, Kennedy, Souter, and Thomas—would join Rehnquist, White, and Scalia, all of whom had expressed opposition to the decision, to provide the five votes needed for overruling Roe. Most commentators, however, expected the Court not to take that step in Casey, which it could decide without reviewing Roe, and to wait until one of the statutes more directly challenging Roe came before it next year, after the election.⁴

O’Connor, Kennedy, and Souter confounded both these predictions. They sustained the Third Circuit’s decision upholding most of the Pennsylvania restrictions but striking down the requirement that married women inform their husbands.⁵ But they insisted both on reviewing Roe in the present case rather than waiting—they said that a “jurisprudence of doubt” is bad for liberty—and on reaffirming rather than condemning Roe’s central holding.⁶ It may exaggerate the future coherence of these three justices to describe them, as commentators in the press have, as now forming a new, moderate center for the Court. I suspect that they will divide again, as they have in the past, over specific constitutional issues, and that one or another will make decisions, as each has in the past, that will strike liberals as conservative rather than as moderate.

But the three justices do indeed seem united, as their joint opinion makes plain, in a crucial and fundamental conviction that separates all of them from the four conservative justices who voted to overrule Roe: O’Connor, Kennedy, and Souter emphatically believe that the principal individual rights protected by the Constitution should be understood, not as a list of discrete and limited rules hammered out in past political compromises, with only the force that the politicians who created them expected them to have, but rather as defining an overall national commitment to liberty and justice.

They ended their joint opinion with a commanding restatement of that ideal. “Our Constitution is a covenant,” they said, “running from the first generation of Americans to us and then to future generations…. We accept our responsibility not to retreat from interpreting the full meaning of the covenant in light of all our precedents.” They said that the due process clause of the Fourteenth Amendment, which forbids states to curtail liberty except through due process of law, must therefore be understood as protecting all of the most fundamental personal liberties, whether or not these are specifically mentioned in some other clause of the Constitution.⁷ They conceded that applying that test requires judgment, and that reasonable judges could disagree about which liberties were among the most important. But it is a great merit of their joint opinion that they were able to considerably strengthen the case for Roe by adding a crucial argument on why freedom of choice about abortion is fundamental, an argument that Blackmun’s opinion in Roe had not emphasized, but which two decades of national reflection and debate about abortion have since brought to the foreground.

The three justices recognized that the fate of a fetus is rightly of very great personal concern to many Americans. But they said that decisions about abortion nevertheless deserved special constitutional protection because such decisions involve “the most intimate and personal choices a person may make in a lifetime.” “At the heart of liberty,” they said, “is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

The argument summarized in that language is complex.⁸ As Stevens made plain in his independent, supporting opinion, the argument presupposes that a fetus is not a person within the meaning of the Constitution, and also presupposes that states have no power to declare it a person within their territory so as to limit a woman’s rights under the national constitution. Obviously, if a state can designate a fetus as a person, and protect it the way it protects other people, then the fact that a woman’s decision about abortion draws on her metaphysical or religious views would provide no reason for denying a state power to stop her killing what it is entitled and obliged to protect.

But once we assume that a fetus is not a person from the perspective of the Constitution, and that states have no power to declare it one, then the fact that a decision about abortion implicates profound personal convictions does provide a strong reason why the state must leave that decision to individual conscience. Some people who are strongly pro-life do think that even an early fetus is already a person from the moral point of view. Other opponents of abortion, though they do not think that an early fetus is even morally a person, or that it has rights or interests of its own, nevertheless insist that it embodies important intrinsic value because it is already a form of human life, a stage in the development of a full person, and that abortion is therefore inconsistent with what the joint opinion called “reverence for the wonder of creation.”

People who take a different view of abortion, and believe that it is sometimes morally justified, do not necessarily deny that a fetus embodies an intrinsic value. They may rather think that on some occasions—the joint opinion mentions cases in which a child, if born, would lead a deprived life—the appropriate “reverence” for human creation argues for abortion rather than childbirth.

It would be wrong, the three justices declared, for a state to form official, collective convictions about essentially ethical and religious issues like these, and to impose those official convictions on individual women, forcing them to suffer great personal hardship for metaphysical beliefs, about the meaning or inherent value of life, that they do not share. Any decent society committed to liberty will leave such decisions, it said, to an individual woman’s “own conception of her spiritual imperatives.” “Beliefs about such matters,” it said, “could not define the attributes of personhood were they formed under the compulsion of the State.”

That argument is important not just because it provides an even more secure basis for Roe’s judgment that women have a right, in principle, to freedom of choice about abortion, but because it also provides a natural basis for the joint opinion’s other main ambition: to redefine and assess a state’s interest in regulating a woman’s decisions about abortion. Justice Blackmun’s opinion in Roe had conceded the existence of such a state interest, but had not satisfactorily defined it, and though several justices in later decisions had also referred to a presumed state interest in regulating abortion, the content of that interest had remained mysterious.

It would not be consistent with recognizing a woman’s right to freedom of choice about abortion, after all, to recognize as well that the state had a legitimate interest in protecting a fetus’s right to live in the same way it protects the interests of ordinary persons. If a state were entitled to protect the life of a fetus in that way, then women would of course not have a right to freedom of choice about abortion at all. But it is certainly consistent with the joint opinion’s explanation of why women do have such a right—that a decision about abortion implicates a woman’s most profound convictions about human existence and the cosmic meaning of life—to insist that a state has a legitimate interest in attempting to persuade its citizens to take decisions about abortion seriously, to understand that such issues do involve fundamental moral issues. So long, that is, as the state stops short of dictating to its citizens which decision they must ultimately make.

It is the second great merit of the joint opinion that it clearly defines the state’s interest in regulating abortion in just those terms. “What is at stake is the woman’s right to make the ultimate decision, not a right to be insulated from all others in doing so,” it said, and, therefore, “States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning.” The state may reasonably think, moreover, that a woman tempted to have an abortion should be at least aware of arguments against it that others in the community believe important and persuasive, so that “Even in the earliest stages of pregnancy, the State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy….”

But of course a state cannot be permitted to appeal to its interest in its citizens making informed and reflective decisions about abortion as a justification for forcing them ultimately to make the decision that the majority, as represented by the legislature, prefers. The joint opinion therefore adopted the test that O’Connor had endorsed in an earlier case: it said that a state regulation about abortion is unconstitutional, even if it does not purport to dictate an ultimate decision, if either its purpose or effect is to create an “undue burden” on a woman who chooses abortion by posing “substantial obstacles” to that choice.

The line between a regulation that imposes such an obstacle and one that only makes an abortion somewhat more expensive or inconvenient, which the joint opinion declared permissible, is plainly a difficult one to draw in practice. The joint opinion had no trouble agreeing with the Third Circuit that requiring a married woman to notify her husband before an abortion does unduly burden her decision. Even though the Pennsylvania statute provided an exception for women who reasonably feared a husband’s physical attack, the three justices agreed with the district court that many women have reason to fear psychological or economic intimidation as well.⁹

The group also held, however, that Pennsylvania’s mandatory twenty-four-hour delay, after a doctor had given the patient prescribed information, had not been shown, at least on the record before the Supreme Court, to impose an undue burden. Women’s groups were particularly angered by that decision. The clinics had pointed out, in their briefs and arguments, that the mandatory waiting period means that women who live at a considerable distance from an abortion clinic, as many do in rural areas, will have to make two possibly expensive trips rather than one. They may have to explain the two trips to those they may not wish to know about the abortion; and they may have to endure the gauntlet of pro-life protesters outside the clinic twice. The clinics said that this requirement might indeed deter some women from an abortion who would otherwise want one.

The joint opinion found this argument “troubling,” and its decision on the point was tentative in a way that many newspaper reports have not made sufficiently clear. It emphasized that the district court had not actually made a finding that the mandatory waiting period imposed “substantial obstacles,” and suggested that it might well respect such a finding in a later case. (Justice Blackmun, in his separate opinion, said he was encouraged by that remark and expected that district courts could be persuaded to make the appropriate finding in a future case.) The joint opinion’s remark about the district court finding was perhaps disingenuous, however—the district court had not used the phrase “substantial obstacles,” but its findings clearly implied that the waiting period might impose such obstacles.

In any case, the joint opinion might well have explored the question whether Pennsylvania could have achieved substantially the same success in its aim of inducing women to think seriously about arguments against abortion, in a way that imposed far less difficulty for women living far from abortion facilities. Could Pennsylvania not have provided, for example, that in the case of women living a stipulated distance from such facilities, the required information might be given by doctors over the telephone, at least twenty-four hours before an abortion? Doctors could make a tentative judgment about probable fetal age based on information provided over the telephone, and could confirm that judgment, and display any graphic material the state wished women contemplating abortion to see, on the day of the abortion itself, when a woman reflecting on the previous telephone conversation could still change her mind. Whether a state has the constitutional power to impose a particular kind of regulation, such as a particular form of mandatory waiting period, must surely depend on whether it might achieve substantially the same legitimate result with fewer regrettable side effects.

2.

The joint opinion also suggests (though perhaps only for the sake of the argument) that at least one of its members “may” have “reservations” about the soundness of Roe’s central holding—that a woman has a constitutionally protected right to choose abortion at any point before the fetus becomes viable. Since each justice who signed the opinion presumably supports the strong substantive arguments that the opinion makes for that holding, it is not clear what those reservations could be. But various parts of the joint opinion suggest the following, at least theoretical, possibility. Though all three justices are convinced that women have a constitutional right to an abortion, and that the state’s interest in regulating the exercise of that right is limited to attempting to persuade women to exercise it responsibly, at least one member of the group might believe that the best accommodation of that right and that partially conflicting state interest would permit states to prohibit abortion altogether at some point well along in pregnancy but earlier than viability, as many European statutes regulating abortion do.¹⁰

But whatever reservation one or more members of the three-justice group might have had about Roe’s central holding if he or she were free to think about the matter on a clean slate, the group was united in thinking that a sound respect for stare decisis—the legal tradition that a court ought not lightly to alter its own past decisions—barred any reconsideration of that holding now. “…[T]he reservations any of us may have in reaffirming the central holding of Roe are outweighed,” the joint opinion said, “by the explication of individual liberty we have given combined with the force of stare decisis.”

The opinion devotes an entire section to elaborating the force of the latter consideration. It argues, first, that a generation of women has come to rely on a right to an abortion until viability; it says that Roe “facilitated” the “ability of women to participate equally in the economic and social life of the Nation.” That seems an odd claim if it is understood as an argument about reliance on past decisions. The fact that the Roe rule has improved the equality of women is strong substantive reason for thinking it sound, not a reason why it should be protected even if it was, as an original matter, unsound. In any case, the strongest argument the joint opinion provides for respecting stare decisis is not an argument about the unfairness of reversal for those who had relied on past decisions, but rather that reversing Roe now, whatever the consequences for particular people, would be damaging to the integrity of the law and therefore to the legitimacy of the Supreme Court.

That is a crucial claim, because it underscores the group’s commitment to the view I described earlier: that the Constitution must be understood not as a list of discrete rules but as a character of principle to be interpreted and enforced as a coherent system. That view of the Constitution entails two central judicial responsibilities. First, judges must decide particular cases in the light of general principles they can responsibly assign to the text of the abstract clauses of the Constitution, and they must respect those principles even when the decisions the principles dictate are controversial or unpopular. As O’Connor, Kennedy, and Souter made plain, they were guided by that responsibility in applying the principle established in the Griswold case, and other cases everyone now accepts, to abortion as well.

Second, the vast power judges have in assigning principles of such sweep to the abstract Constitutional provisions must be disciplined, if the Court is to be understood as an institution of law and not just another venue for politics, by a respect for the integrity of its decisions over time. When the Court changes its mind, the joint opinion suggests, and argues that it was mistaken in the past, it chips away at an important part of that restraint, and it cannot do so too often without undermining its legitimacy as an unelected forum committed to basing its decisions on principle.

So the Court should hesitate before changing its mind, and should do so only when the overall goal of principled integrity itself demands the change. Integrity did demand a change, as the joint opinion argues, in the two most celebrated reversals in the Court’s history: when it overruled the infamous Lochner decision, which denied states the power to improve working conditions and otherwise regulate the economic market, and when, in the Brown case of 1954, it overruled Plessy v. Ferguson’s holding that racially segregated public facilities did not violate the Equal Protection Clause. In both cases, decades of experience had shown that the past decision was inconsistent with more general principles that the law and the community had come to adopt, both about the moral responsibilities of government and about the psychological and social meaning of discrimination. Overruling them was absolutely necessary in order to protect the coherence of constitutional law as a whole. There is no such justification for overruling Roe, the joint opinion said: nothing has happened to indicate that enforcing a woman’s right to choose abortion until a fetus is viable offends more general principles of liberty or equality that other past decisions presuppose. So overruling Roe would undermine the valuable general constraint of precedent with no offsetting justification drawn from the same command to respect principles presupposed by previous decisions.

3.

The importance of the joint opinion’s commitment to the vision of the Constitution as a system of principle is underscored by the dissenting opinions of Rehnquist and Scalia, who fervently embrace the opposite view. They insist that the rights set out in the Constitution, including the right that liberty not be limited except by due process of law, are only a set of discrete rules which neither appeal to nor presuppose any more general principles. They say that the force of these rights is limited to the highly specific expectations of the politicians who created them, and that the rights therefore must be interpreted so as not to condemn any political practices in general force when they were adopted.

Rehnquist begins his partial dissent in Casey by declaring a firm belief that Roe should be overruled. He makes no genuine attempt to dispute the majority’s claim that Roe is supported by general principles implicit in the Court’s past decisions about contraception, marriage, and private education. He only points out that no particular language in these opinions declared an “all-encompassing” right of privacy. He means, apparently, that since none of the previous cases concerned abortion, no past decision explicitly included it.¹¹ But it hardly follows that the principle those decisions presuppose does not extend to abortion, as the majority insists they plainly do.

Rehnquist does say, as he has before, that abortion is different from contraception because abortion involves the destruction of a fetus; he compares abortion to “firing a gun where the case at hand happens to involve its discharge into another person’s body.” These claims presuppose, however, that the Constitution entitles states to treat a fetus as a person, and Rehnquist makes no attempt whatever to reply to or even acknowledge the majority’s reasons, carefully set out by Stevens in his own opinion, for supposing that states may not do so. Nor does Rehnquist explain how his own previously announced view, that states have no right to prohibit abortion when the mother’s life is at stake, is consistent with a state’s power to declare a fetus a person. States plainly have the power to forbid a doctor “firing a gun” into one innocent person even to save the life of another.

Scalia, in his own partial dissent, makes even plainer his contempt for the view that the Constitution creates a system of principle. He reaches the conclusion that abortion is not a liberty protected by the Constitution, he says, “not because of anything so exalted as my views concerning the ‘concept of existence, of meaning of the universe, and of the mystery of human life’ ” but “because of two simple facts: (1) The Constitution says absolutely nothing about it, and (2) the long-standing traditions of American society have permitted it to be legally proscribed.” Scalia’s flat assertion that the Constitution says nothing about abortion begs the question, of course. The Fourteenth Amendment does explicitly forbid states to abridge liberty without due process of law, and the question, in this case as in any other case involving that clause, is whether the state legislation in question does in fact do exactly that. If it does, then the Constitution does say something about it: the Constitution forbids it. The majority argues that if we accept the principles that underlie past Supreme Court decisions everyone accepts, we must also accept that forbidding abortion before viability denies liberty without due process. Scalia says nothing at all that undermines or even challenges that claim.

So Scalia’s entire argument depends on his assertion that since a majority of states had outlawed abortion before the Fourteenth Amendment was adopted, it would be wrong to interpret the due process clause as denying them the power to do so now. He refuses to consider whether laws outlawing abortion, no matter how popular they were or are, offend other, more general principles of liberty that are embedded in the Constitution’s abstract language and in the Court’s past decisions. He disdains inquiries of that character because, he says, they involve “value judgments.” Of course they do. How can any court enforce the abstract moral command of the Constitution that states may not violate fundamental liberties, without making judgments about “values”? Judges have had to make such judgments since law began.

It is exactly because the Constitution requires courts to exercise moral judgment that the joint opinion of O’Connor, Kennedy, and Souter lays such great emphasis on the traditional constraints lawyers in our tradition have always observed: integrity of principle and respect for precedent. Scalia and Rehnquist reject those constraints. But of course their decisions reflect moral judgments just as much as the majority’s do, because they pick and choose which traditions to accept as defining the content of constitutional rights and which to reject as inconsistent with it. They both, presumably, now accept the Court’s past decisions striking down, under the Fourteenth Amendment, various forms of racial and gender discrimination that were widely practiced when that amendment was enacted. Scalia insists that racial classifications are different from prohibitions on abortion because the former are “contradicted by a text“—the equal protection clause. But that clause does not explicitly condemn separate public facilities for different races, or racial school segregation, both of which were widely practiced when the clause was adopted, and those who adopted it probably did not have gender discrimination in mind at all.

Nothing in Scalia’s opinion suggests why he does not treat the racially or sexually discriminatory practices that flourished when the Fourteenth Amendment was adopted as fixing the content of that amendment, rather than being condemned by it, or why he takes a different view of the force of the practices that outlawed abortion. In this case, as well as in others I have described elsewhere,¹² treating the Constitution as only a set of independent and historically limited rules masks a freewheeling judicial discretion that is guided only by a justice’s own political or moral convictions, unchecked by the constraints that treating the Constitution as a charter of principle would necessarily impose.

4.

That vision of the Constitution as principle, whose importance I have been emphasizing, is a jurisprudential conviction rather than a distinctly liberal or even moderate position. Justice Harlan, who was widely regarded as a conservative justice, embraced it, as I said, and the fact that O’Connor, Kennedy, and Souter have endorsed it in Casey and other recent decisions does not signal that the future decisions of any of those justices will please liberals or displease conservatives. The vision of a principled constitution does strongly support a Constitutional right to abortion, for all the reasons I described, and it is not surprising that the only justices who have rejected that right also reject that vision.¹³ But there is no equally strong connection between the view that the Constitution is a system of principle and liberal positions about many other controversial constitutional issues.

The principled view of the Constitution is, however, a great national heritage and treasure, and people of all political convictions should join in endorsing and protecting it. Many of us feared that recent appointments to the Supreme Court, by presidents who expressly rejected that view of the Constitution, had buried it for a generation. Casey and the other dramatic decisions at the close of the last Court term show that the fear was premature, that the principled view of the Constitution remains robust and effective.

That fact is itself a tribute to the great strength of that view. If a president appoints justices who love and respect their craft and its history, then those justices will be drawn to the principled view of the Constitution, whatever expectations the president may have had. O’Connor, Kennedy, and Souter are only the latest examples of that cheering fact: Justices Warren and Brennan were appointed by Eisenhower, and Blackmun by Nixon. These examples refute the cynics who insist that since Court appointments are politically motivated the Court is inevitably just another political institution.

But of course presidents who know what they are about, and care about nothing else, can still appoint justices who take the same demeaning view of the Constitution as they do. Justice Thomas, on the record so far, shows what presidents of that cast of mind can do. We must not forget that in the Casey decision four justices announced themselves still determined to overrule Roe v. Wade and to undermine the principled view of the Constitution on which that decision was based. Justice Blackmun took care to remind us, in his separate opinion, that he is now eighty-three years old and cannot serve forever. When he leaves the Court, a president determined to change the character of our Constitution could do so with a single appointment. The Casey decision did not, as some commentators have suggested it might have, take abortion and the Supreme Court out of the election debate. On the contrary, the decision showed the breathtaking importance of the very next nomination to that Court, and of which president will make it.