Casey v. Planned Parenthood
and a warning about strict constructionism

Considering the hand wringing associated with Sam Alito's nomination to the U.S. Supreme Court, The Marshall Occasional takes a look at an amazingly public cat fight over abortion, the Supreme Court opinion in Casey v. Planned Parenthood.

***

As is their way, the Left is missing a point in bashing Sam Alito's upholding of the legal notion that a woman had to notify her husband before having an abortion. Their focus is on the last three words -- having an abortion.

My suggestion is the emphasis should be on the first clause -- that a woman had to notify her husband before (blank). Before taking out the garbage? Before playing bridge? Does anybody think the government should be ordering anything inside a marriage? Doesn't the Constitution guarantee your right to be secure in your home?

If you think that's kind of wacky, consider this.

In the case at the heart of all this, Planned Parenthood v. Casey, Justice Antonin Scalia -- the ideal judge in the minds of conservative Americans such as President Bush -- justified his stand by quoting a case from 1857.

The case was the Dred Scott decision.

For those who may not know, that decision ruled that black people were not people, but property.

I'm not making this up. You can read it for yourself.

***

"Liberty finds no refuge in a jurisprudence of doubt." So wrote Justices Sandra Day O'Connor, Anthony Kennedy and David Souter in the 1992 Casey decision. Their goal was to put forth a legal standard, based on Roe v. Wade, to decide abortion cases in the future.

Add in Scalia's dissent, and what you see is a legal cat fight.

When it comes to overturning abortion law, O'Connor and her prevailing side were clear. "Only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling (Roe) was anything but a surrender to political pressure."

That's a major point to remember.

Think, for a moment, that the Republicans are currently railing against activist judges, the idea that it's wrong for judges to be legislating from the bench. This is Orwellian doublespeak at its finest. At no point since 1973 has the abolition of abortion rights been possible in Congress, so conservatives are working to get activist judges appointed.

Activist judges on their side.

Consider what Scalia wrote in Casey.

"The States may, if they wish, permit abortion-on-demand, but the Constitution does not require them to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting."

Just a little irony there. There aren't enough votes in Congress to kill abortion rights, but with Alito there will be the five votes needed to kill it in the Supreme Court.

***

Casey is a long opinion, and the cat fight stuff comes at the very end, with Scalia declaring: "I must ... respond to a few of the more outrageous arguments in today's opinion, which" -- catch this bit of high-brow hyperbole -- "it is beyond human nature to leave unanswered."

Scalia has a number of over-the-top lines -- "the emptiness of the 'reasoned judgment' that produced Roe is displayed in plain view" -- but his single best line deals with the opening line of the opinion. The idea that liberty finds no refuge in a jurisprudence of doubt "is really more than one should have to bear" when it comes to abortion law, Scalia says.

There are more -- "The undue-burden test provides no more useful guidance than the empty phrases discussed above" -- but you get the idea.

So one last line from Scalia.

"The only principle the Court 'adheres' to, it seems to me, is the principle that the Court must be seen as standing by Roe. That is not a principle of law (which is what I thought the Court was talking about), but a principle of Realpolitik -- and a wrong one at that."

Realpolitik, indeed. If you don't have 269 votes in Congress, get five in the Supreme Court.

***

To satisfy the legal eagles, a word about Dred Scott. Yes, it was a monstrous ruling. But it was also, to folks who believe the Constitution should be followed word for word, correct. As part of the great compromise to get the Constitution approved, slavery -- an inherent contradiction to all the freedoms in the document -- was maintained. Slaves were property, not people.

And that's precisely the problem with the strict constructionist crowd.

There's a whole body of legal thought from strict constructionists that contends everything from the New Deal on is unconstitutional -- that Congress has very limited powers under the Constitution and that those powers are clearly defined.

The Constitution contains a very large loophole, however, and it's known as the general welfare clause, the idea that Congress, even if it's not specifically authorized by the Constitution, can do things to promote the general welfare of the people.

In the 19th century, it was routine for presidents -- and the courts -- to shoot down disaster relief measures as being unconstitutional. The Great Depression changed all that, and the key case there was Helvering v. Davis. As the court wrote:

"The concept of the general welfare [is not] static. Needs that were narrow or parochial a century ago may be interwoven in our day with the well-being of the nation."

Sounds sensible to me.

***

So here we are with today's Supreme Court battles. If you follow the Scalia-Thomas crowd, a whole bunch of things supported by a majority of the people -- like the Environmental Protection Agency -- can be shut down overnight. It's as simple as saying Congress can't regulate phone companies because the phone wasn't invented when the Constitution was written.

It makes me wonder if these folks seriously consider this a good idea, or if they are merely using it as a smokescreen to kill things they don't like.

-30-