Reconsidering Abortion Law: Liberty, Equality and the New Rhetoric of Planned Parenthood v. Casey
Widener University Delaware Law School
American University Law Review, Vol. 45, p. 77, 1995
Since 1973, the Supreme Court has based the right to abortion on a right to privacy implicit in the Due Process Clauses of the Fifth and Fourteenth Amendments. Despite forceful and increasingly frequent arguments that the harm caused by restrictive abortion laws deny equal protection, at least as much as they impinge on personal privacy, the Court has steadfastly refused to consider abortion in this light. In Planned Parenthood of Southeastern Pennsylvania v. Casey, sowed the seeds for a more nuanced understanding of both liberty and equality. Although the lead opinion is so fractured that, as the maze of concurrences and dissents illustrate, there is something in it for everyone to hate, it may signal the approach of a new phase in the Court's abortion jurisprudence. Its most significant contribution may be to broaden the scope of what is considered relevant to the abortion issue. In several important ways, the lead opinion in Casey seems to recognize that abortion is much more than a medical decision affecting people who can only be characterized as patients and implicating a narrow and precarious privacy interest. The treatment of the abortion issue in Casey represents an understanding of the complexity of the issue that was lacking in prior decisions and it is the first case to evince enough respect for women to warrant application of equal protection principles. The language in Casey creates the hope and the promise of a legal doctrine that reflects this more comprehensive and realistic vision. It is critical to emphasize at the outset, however, that this promise is not fulfilled in four of the five holdings of Casey that uphold the restrictions.
Number of Pages in PDF File: 74
Keywords: abortion, constitutional law
JEL Classification: K32, K10
Date posted: March 3, 2010