Russell and Duenes

The Horror that is Planned Parenthood v. Casey: Rehnquist’s Dissent on Substantive Due Process

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“Our fight is not against human beings. It is against the rulers, the authorities and the powers of this dark world. It is against the spiritual forces of evil in the heavenly world.” – St. Paul

While the arguments presented in Casey by justices O’Connor, Kennedy, Souter, Stevens and Blackmun are legally, philosophically, and intellectually wanting, this case illustrates simple hard-heartedness on their parts, brought about by spiritual blindness. As Michael Stokes Paulsen remarks: “The Court in Casey knew exactly what it was doing. It knew the jurisprudential stakes; it knew the moral arguments; it knew the reality of what abortion was and what abortion does. The justices did what they did with full knowledge of the consequences, with full awareness that the claimed right to abortion lacked any legitimate legal basis, and with full appreciation that the deaths of millions of unborn human children hung on their decision.” I desire in these writings to follow St. Paul’s command, to “[t]ake no part in the unfruitful works of darkness, but instead expose them” (Eph. 5:11).

Some might argue that a person who wants others to take seriously his thoughts on a particular Supreme Court case ought to confine himself to legal analysis. The problem with this view, of course, is that any legal analysis requires something prior to legal analysis, some meta-analysis, if you will; for there are no legal arguments anywhere in the universe that do not rest on some prior theological and epistemological commitments to what can be known as fact. As should be clear from my previous post, the majority who wrote the decision in Casey have not confined themselves to “legal” arguments, but have done what all humans must do, namely, appeal to some kind of overarching and universal truth in order to support one’s assertions. How else can one view the majority’s statement: “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?” This is not law, but theology, and all of life is theology in practice, even scholarly legal analysis and writing. I simply do not accept the reductionistic assumption that humans can “confine themselves” to disciplines such as law, science, anthropology, psychology, physics or biology without engaging the spiritual realm. We engage it whether we know and admit to it or not. Jesus is Lord, and “in him are hidden all the treasures of wisdom and knowledge.” For as St. Paul also writes, “From him and through him and to him are all things.” This doesn’t change once one enters the halls of education. If “being taken seriously” means abandoning the Bible as the foundation and ground of all knowledge and ethics, then may God take my irrelevancy and run with it as He sees fit.

In my previous post I detailed the Casey court’s understanding of the legal doctrine called “substantive due process.” Substantive Due Process seeks to enumerate and protect as constitutional “rights” certain “rights” that appear nowhere in the Constitution. Rather, as the Court says, these extra-Constitutional rights must be ascertained through “reasoned judgment.” I raised several questions about the efficacy of such “reasoned judgment,” but thought it worth allowing the dissent in Casey to present its take on Substantive Due Process.

Though then-chief justice Rehnquist did not write at length in his dissent about the meaning of “liberty” under Substantive Due Process, he did make some important points. First, he argues that the notion that a right to terminate one’s pregnancy is a “fundamental right” clearly overreaches. He says that the Court’s decisions leading up to Roe “make[ ] clear that they do not endorse any all-encompassing ‘right of privacy.'” For “unlike marriage, procreation, and contraception, abortion ‘involves the purposeful termination of a potential life.’ The abortion decision must therefore ‘be recognized as sui generis, different in kind from the others that the Court has protected under the rubric of personal or family privacy and autonomy.'”

Rehnquist’s use of the term “potential life” is problematic, but leaving it aside for the moment, his argument is sound. The majority tried to cast abortion rights as the logical and inevitable result of its decisions about marriage and contraception. In other words, if a woman has a right to be left alone by the government in her decisions regarding whom to marry and whether to use birth control, then surely she is to be left alone when it comes to her decision to end the life within her womb. But this only leads back to the question, left unanswered by the Roe Court: What is the unborn? Rehnquist seems content to leave the answer as “potential life,” yet the Roe Court simply said, “We need not resolve the difficult question of when life begins.” But this is THE question, and we’ll return to it under justice Scalia’s dissent. Further, the “right to privacy” has virtually no bottom to it. Just think of all the things that can be justified under “privacy.” Indeed, “privacy” is behind the “as long as it’s not hurting anyone else” ethic. Thus, our public sense of right and wrong is reduced to what “consenting adults” will do. Yet as anyone can observe, the buck rarely stops at what “consenting adults” want to do in private. The death of close to 40 million Americans over forty years does not confine itself to “the woman and her doctor.”

Rehnquist begins to get at this when he writes: “One cannot ignore the fact that a woman is not isolated in her pregnancy, and that the decision to abort necessarily involves the destruction of a fetus.” He adds, “To look ‘at the act which is assertedly the subject of a liberty interest in isolation from its effect upon other people [is] like inquiring whether there is a liberty interest in firing a gun where the case at hand happens to involve its discharge into another person’s body.'” To this I would add that “the decision to abort” also affects husbands, boyfriends, grandparents, aunts, uncles, cousins, neighbors, and friends. All too often this is left out of the equation. Indeed, in Casey, the majority takes such a decidedly negative view of the father’s role as to leave him out of the decision entirely. He has no say in whether his baby lives. I am not blind to the terrifying truth that it is often the men in women’s lives who encourage them, even coerce them, into having abortions. This is what lurks in the dark shadows of abortion: Too often the father wants a dead baby, and when he doesn’t, he’s left out of the loop. I cannot help but think of the prophet Malachi’s words: “Look, I am sending you the prophet Elijah before the great and dreadful day of the Lord arrives. His preaching will turn the hearts of fathers to their children, and the hearts of children to their fathers. Otherwise I will come and strike the land with a curse.” A curse indeed!

In determining whether abortion is a “fundamental” liberty guaranteed by the Constitution, Rehnquist also briefly surveys the history of abortion, for if our history showed that people thought abortion was a fundamental right, the Court might have a leg to stand on. However, a look at abortion history shows no such thing. As Rehnquist says, “By the turn of the [20th] century virtually every State had a law prohibiting or restricting abortion on its books. By the middle of the . . . century, a liberalization trend had set in. But 21 of the restrictive abortion laws in effect in 1868 were still in effect in 1973 when Roe was decided, and an overwhelming majority of the States prohibited abortion unless necessary to preserve the life or health of the mother.” He concludes: “On this record, it can scarcely be said that any deeply rooted tradition of relatively unrestricted abortion in our history supported the classification of the right to abortion as ‘fundamental’ under the Due Process Clause of the Fourteenth Amendment.”

Thus, justice Rehnquist is quite right when he notes: “The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.”

Justice Scalia has a much more involved dissent, which I will save for another post. I leave you, however, with these thoughts. From where did the justices who wrote Casey come? From what culture, society and families are they the products? From what educational system and from what legal academy? Indeed, justices O’Connor, Kennedy, Souter, Stevens and Blackmun were all selected by Republican presidents. Thus, I have absolutely zero confidence that “electing the right president” will make a difference at this point. The roots are diseased, and thus is the tree dead and lifeless. We need to repent. I, I need to repent.



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