Russell and Duenes

Planned Parenthood v. Casey: If We Have Contraception, We Must Have Abortion

with 4 comments

I have argued in the past that the Supreme Court’s ruling in Roe v. Wade (or to be more correct, the companion ruling in Doe v. Bolton) implied that if we are going to have widespread contraception use, then we must have access to abortion. But this assertion becomes explicit in the Supreme Court’s 1992 ruling, Planned Parenthood v. Casey. In reaffirming Roe, the Court stated the following:

    The Roe rule’s limitation on state power could not be repudiated without serious inequity to people who, for two decades of economic and social developments, have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives. The Constitution serves human values, and while the effect of reliance on Roe cannot be exactly measured, neither can the certain costs of overruling Roe for people who have ordered their thinking and living around that case be dismissed.
Do you get that? People have now for so long ordered their lives around the avoidance of children through artificial contraception that they are now entitled, by force of law, to be free of procreation, even if it comes at the cost of killing their own baby. They are entitled to a dead baby! And this so women can “participate equally in the economic and social life of the Nation.” What a victory for women. What liberation! And truly, what a victory for men. Just think what “entitled to no baby” means for them.

Written by Michael Duenes

May 4, 2010 at 8:38 pm

4 Responses

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  1. Just so I can clarify the legal doctrine, the idea of reliance does not pertain to the rightness or wrongness of Roe. In other words, the fact that women have relied on it does not mean they are “entitled” in the way “entitled” is normally used (i.e., that one “deserves”).

    What women, and all citizens, are entitled to is the consistency of the law. No one really philosophically disagrees with that. The doctrine of reliance simply means that, even if the decision was wrong, the fact that people have relied on a previous decision adds weight against overruling precedent (a state that is already hard to get to).

    Of course, the Court was being disingenuous here, as less than 20 years is not a long time of reliance in constitutional terms.

    Moreover, many (see Justice Thomas) don’t really believe in adherence to case precedents in constitutional law, for the reason that they see the constitution itself as the ultimate precedent.

    Regardless, the argument being made in your quote is more one of legal doctrine than of political theory. No one is “entitled” to anything in the sense of positive rights.

    Joshua House

    May 4, 2010 at 9:10 pm

    • You are quite correct as a matter of law that there is no speaking of “entitlement” here, but that is a bit too clean. The actual effect of the legal doctrine here is to create an entitlement, the positive right to have an abortion should your contraceptive fail so as to protect your right to participate equally in the economic and social life of the nation. That’s why Roe was decided in the first place, because the Court ruled that women are entitled, yes, entitled to the positive right of an abortion for any reason (that’s what “life and health of the mother” actually means). This has been the actual effect of the legal doctrine, so to say that it doesn’t create a positive right is, in my view, incorrect.



      May 4, 2010 at 10:24 pm

  2. True, I think the practical effects have shown that, at least, people believe there is a positive right. I remember having a conversation with an Abortion activist on UC San Diego’s campus. I remember telling her there is no positive right, in the sense that if your town lacks an abortion clinic, you are out of luck (just like the government does not need to bring your groceries to you, but you have a right to travel to and from places). She was so appalled to hear me say that, I was told to (word for word) “leave the [info] table so that intelligent voters can be informed.”

    We’re doomed.

    Joshua House

    May 6, 2010 at 10:54 am

    • Josh – Doomed if we’re dealing with this “in the flesh.” But there were many who thought that chattle slavery would always be around. Of course, we know the end of the story.



      May 6, 2010 at 7:38 pm

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