THE SPECTER OF "SUPER-DUPER PRECEDENTS”
By Wanda Franz, Ph.D.

Sen. Arlen Specter: And I don't want to coin any phrases on super-precedents--we'll leave that to the Supreme Court--but would you think that Roe might be a super-duper precedent in light of ... [LAUGHTER] ... in light of 38 occasions to overrule it?

Judge John Roberts: Well, the interesting thing, of course, is not simply the opportunity to address it, but when the court actually considers the question. And that, of course, is in the Casey decision, where it did apply the principles of stare decisis and specifically addressed it. And that I think is the decision that any judge in this area would begin with. -- from the transcript of the confirmation hearings of Chief Justice John Roberts

In this exchange our new Chief Justice gently informed Senator Specter that the governing "super-duper"precedent is Planned Parenthood of S.E. Pennsylvania v. Casey (1992), not Roe v. Wade (1973). As Fourth Circuit Appeals Judge Michael Luttig ruefully put it, "I understand the Supreme Court to have intended its decision in Planned Parenthood v. Casey (1992) to be a super-stare decisis [Latin for let it stand] with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy. ... And I believe this understanding to have been not merely confirmed, but reinforced by the Court's recent decision in Stenberg v. Carhart (2000)."

So, abortion law is now governed by Casey, not Roe. The notoriously broad definition of "health " in Doe v. Bolton (the companion decision to Roe) remains, however, intact; thus abortion on demand is still the law of the land. Our task is not only to undo Roe, but to overturn Casey and Carhart as well.

In Casey the Supreme Court reaffirmed "Roe's essential holding "that a woman has the right to choose an abortion before "fetal viability and obtain it without undue interference from the State." After viability, the health exception of Doe essentially makes abortion a constitutional right for all nine months of a pregnancy.

In addition, Casey replaced Roe's arbitrary trimester scheme with the equally arbitrary "fetal viability" threshold. And Roe's "strict scrutiny standard" (abortion as a "fundamental right "cannot be restricted by the state except to serve a "compelling "state interest) is replaced with the "undue burden" standard, which some justices had previously applied--in a conflicting manner. As Chief Justice Rehnquist observed in his dissent, "The undue burden standard adopted by the joint opinion of Justices O'Connor, Kennedy, and Souter has no basis in constitutional law.... To evaluate abortion regulations under that standard, judges will have to make the subjective, unguided determination whether the regulations place 'substantial obstacles' in the path of a woman seeking an abortion, undoubtedly engendering a variety of conflicting views" [italics added].

Casey does not in any way fix what ailed Roe, namely inventing a fictitious constitutional right where there was none. (In his dissent, Justice Scalia writes with regard to abortion," (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed.") The authors of the plurality opinion (O'Connor, Kennedy, and Souter), of course, know this. They attempt to explain this "liberty" with the infamous "mystery of life" passage and then, in so many words, tell pro-lifers to shut up and go away.

The "mystery of life" passage ("These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.”) has attracted much deserved ridicule, but it has a very serious side to it: On this basis the Supreme Court can "constitutionalize" just about any serious social policy issue, such as abortion, and decide what matters are off limits to legislation. Once the Supreme Court elevates a behavior into the category of constitutionally protected liberties, neither Congress nor the state legislatures may proscribe it by law. There are then only two ways left to undo the damage: either the Supreme Court reverses itself or the Constitution is amended.

Thus pro-life efforts are best directed towards (1) electing pro-life presidents who will appoint justices who are faithful to the Constitution and refrain from legislating from the bench, (2) electing a U.S. Senate willing to confirm such justices, and (3) educating the public about the need to protect the right to life--an absolute prerequisite for successfully amending the Constitution.

Given the constitutional weakness of Roe v. Wade and Planned Parenthood v. Casey, it is no surprise that pro-abortionists like Sen. Specter want to preserve these decisions by turning them into "super-duper precedents" that no justice should want to overturn. In fact, the authors of the plurality opinion in Casey (O'Connor, Kennedy, and Souter) make an unusual plea in this direction themselves:

Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution. [This is the "pro-lifers, shut up and go away" plea.] ...

A decision to overrule Roe's essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy, and to the Nation's commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe's original decision, and we do so today.

Of course, "error there was," and "both profound and unnecessary damage to the Court's legitimacy" has already been done--self-inflicted by the Court in Roe v. Wade, Doe v. Bolton, Planned Parenthood of S.E. Penna. v. Casey, Stenberg v. Carhart, and so on.

The present Court won't admit that; for now that makes Roe and Casey "super-duper precedents."