Russell and Duenes

The Horror that is Planned Parenthood v. Casey: Substantive Due Process

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If you’re not familiar with or particularly interested in the legal realm, and you’re one of my regular readers, I’d urge you to stay with me in my discussion of this case. I will try to lay some things out regarding the Casey decision which I hope will bring home to you the importance of this case for all citizens. It is important that we grasp the thinking and reasoning that support its conclusions, and that we understanding its relevance for vital engagement with our world. The failure to wrestle with cases like this in Christian education – in Christian schools, Christian home schools, and Christian Sunday schools – is a great failure and oversight indeed.

The Court begins its discussion in Casey by explaining a doctrine called “Substantive Due Process.” What is “Substantive Due Process,” as the Court sees it? The Court explains:

“Constitutional protection of the woman’s decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall ‘deprive any person of life, liberty, or property, without due process of law.’ The controlling word in the cases before us is ‘liberty.’ Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years . . . the Clause has been understood to contain a substantive component as well, one ‘barring certain government actions regardless of the fairness of the procedures used to implement them.’”

In other words, the Court is trying to get at the range of meaning included in the term “liberty” under the 14th Amendment. What “liberty” does the Constitution grant to each person? Is our “liberty” only something that can be found in the text of the Constitution? Or are there extra-textual liberties, if you will?

The Court begins by tying one’s “liberties” under the 14th Amendment to the Bill of Rights. The Court states: “The most familiar of the substantive liberties protected by the Fourteenth Amendment are those recognized by the Bill of Rights. We have held that the Due Process Clause of the Fourteenth Amendment incorporates most of the Bill of Rights against the States.” However, the Court holds that the Bill of Rights cannot encompass all of our liberties. Thus, the Court says we must continue to look elsewhere, stating: “[T]he Due Process Clause protects . . . those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified.” But again, the Court says that this cannot define the total scope of our liberties, for “there is a realm of personal liberty which the government may not enter. . . Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.”

Of course, you are now asking: “So what does mark the ‘outer limits’ of our liberties under the Constitution?” And here is where the Court runs into trouble; the same trouble that a culture runs into when it jettisons the Bible as the foundation for all knowledge and ethics, and tries to hang its moral and philosophical pronouncements from “invisible sky hooks,” to borrow Douglas Wilson’s apt phrase.

The Court says that the term “liberty” under the 14th Amendment, “is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.” This raises all sorts of thorny questions: Where does one look to find the difference between a “substantial arbitrary imposition” and a “non-arbitrary imposition” by the State? Can we just rely on our “rationality?” If so, why does my “rationality” tell me something different than, say, Justice O’Connor’s? What constitutes a “purposeless restraint” as opposed to a “purposeful” one? Whose purpose? How does one determine which interests deserve “particularly careful scrutiny?” Is it written down somewhere? How “careful” must the scrutiny be? Is it all just up in the air, left to each person to decide for him or herself? If so, why should we care what Justices O’Connor, Souter, and Kennedy think?

The Court tries to sort some of these questions out, stating that “the Constitution places limits on a State’s right to interfere with a person’s most basic decisions about family and parenthood.” Of course, the text of the Constitution does no such thing. The Court doesn’t even pretend to ground this assertion in the text of the Constitution, which is why they are trying to ground it in “substantive due process.” But again, questions arise: What is a “most basic decision?” Are there any limits to what I can decide to do about my “family and parenthood” situation? If so, what are the limits and to what authority should we look to bind us to such limits?

The Court, not finding any help from the Constitution’s text, says that in order to determine what our liberties are, we must look to “reasoned judgment.” This sounds nice and objective and all, but surely “reasonable” people have very different judgments about the answer to the question: What is the unborn? So “reasoned judgment” doesn’t seem like it can provide the heft needed to define the scope of our liberties, particularly if we are simply relying on the “reasoned judgment” of nine men and women on a court. Thus, the Court attempts to put flesh on their “reasoned judgment” argument.

The Court says that the content of our Due Process liberties “cannot be determined by reference to any code.” The Court further agrees that judges are not “free to roam where unguided speculation might take them.” So what does guide such judges? The Court answers: “The balance [between the need for individual liberty and the demands of organized society] . . . is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound.” Is that clear enough for you?

Our liberties must be determined by some nebulous and vague appeal to “living traditions from which our country developed and from which it broke.” You see the thicket into which the Court enters with this argument. If it’s a “living tradition,” then what good is the tradition? Can’t it just “live” some more by breaking new ground and going off in any direction? Which “traditions”, the ones from which our country developed or the ones from which it broke, will receive greater weight and authority? Where does the text of the Constitution come in? Why do we even need a Constitutional text, or really any text, if we are simply going to balance “living traditions?”

But the Court is not done. While acknowledging that “[m]en and women of good conscience can disagree . . . about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage,” the Court holds that “our obligation is to define the liberty of all, not to mandate our own moral code.” Now the Court has really run aground, for such a holding is evidently self-refuting. The Court is doing precisely what it says it cannot do, namely “mandating [its] own moral code.” The Court is arguing that it really doesn’t matter what different reasonable people think about abortion, we are going to “define the liberty of all.” The “liberty” of the unborn doesn’t really come into it, seeing as the Court in Roe v. Wade decided that it could not decide when life begins.

The Court then says that matters such as flag-burning, the use of contraception, the decision to marry or not, the decision regarding whom to marry, decisions about child-rearing and education, “involv[e] the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy,” and, as such, they are choices “central to the liberty protected by the Fourteenth Amendment.” In light of this, the Court reaches its ultimate bottom-line in defining liberty: “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. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion from the State.” Oh.

What can one say in response to this statement? The least we can say is that it should receive a failing grade in any high school introductory philosophy course. Taken at face value, it would justify any and all human behaviors toward not only other human beings, but animals as well. It would reduce human relations to will-to-power, ruled by the “definition of the concept of the universe” held by the most powerful. Hitler, Stalin, Mao, and Pol Pot certainly could not be tried and condemned under such an assertion, which may be why so few college students these days are willing to condemn history’s mass murderers.

If each and every person gets to define for themselves their own “concept of existence, of meaning, of the universe, and of the mystery of human life,” then why is the Court imposing on the electorate its own meaning of these things, and telling us that it has the force of law? Wouldn’t their statement at least allow the States to determine what they see fit with regard to “the mystery of human life,” as they did prior to Roe? The Court’s assertion soars to the heights  of intellectual, moral, and spiritual bankruptcy, couching a supremely arrogant statement in a way that sounds humble and deferential. Yet, as I said earlier, when one at once rejects the Bible and God’s authoritative words given to us in it, then one is cut loose, unmoored, as it were, from any ability to ground reality in anything objective and real.

Thus, turning to abortion specifically, the Court argues that “the destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.” I assume this means that if her own “spiritual imperatives” do not tell her that the life inside her is a full and distinct human being, created in the image of God, destined for eternal life, and loved of God, then she may do what she wants with that life, freely and legally. And if she, and she alone, decides that the life inside of her is something she happens to want, then presto, it becomes life worthy of protection. Were someone other than her to kill the life inside her, it could well warrant a murder conviction (see Scott Peterson). But if she kills it, it’s a “fundamental constitutional right”, worthy of more protection than almost any other “right.” This is the logic of the Court’s, and mind you, of our American society’s which it mirrors, definition of “liberty.”

Such an understanding of has had real-world consequences – for the fate of over 30 million unborn human beings in this nation alone, for the untold emotional, psychological, physical and spiritual toll that the legal killing of over 30 million unborn babies has taken on mothers, fathers, other family members and friends, for the legal genocidal killing of the unborn that is taking place among African-Americans, who will be extinct as a race in this country if current abortion trends continue, for the cultural impoverishment that comes about when 30 million of your citizens never get a chance to work, invent, and contribute to your nation’s well-being, and for the deadening effect that such wickedness has on the nation’s conscience – to name only a few. As I said, such “reasoning” is bankrupt in every way, and not worthy of the human dignity which it betrays. What’s worse is that the author of Roe, Justice Blackmun, called the Court’s reasoning here “an act of personal courage and constitutional principle.” And to his everlasting shame, he wrote, “While there is much to be praised about our democracy, our country since its founding has recognized that there are certain fundamental liberties that are not to be left to the whims of an election. A woman’s right to reproductive choice is one of those fundamental liberties. Accordingly, that liberty need not seek refuge at the ballot box.”

The dissent in Casey has a response to the Court’s reasoning above, to which I’ll turn in the next post. Again, my hope in writing these is not to draw you into the legal arena specifically, but to point up the consequences of a nation and people that scorns God Almighty.



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