Thursday, April 27, 2017
Last week I had the great honor of receiving the Susan B. Anthony Award for Commitment to Life from the Harvard Law Students for Life. (I'm pictured below with the incoming president of the organization, Steven Obiajulu.) The organization was founded by a merry band of students in 2016, advised by the ever courageous Mary Ann Glendon and fellow MOJer Adrian Vermuele. The students presented the inaugural SBA award last year to Robert George.
Over lunch, I gave a lecture to the law school community, co-sponsored by the HLS Federalist Society. My topic, "Revisiting Planned Parenthood v Casey: Does 'Relying' on Abortion for Equality Actually Serve Women's Equality?" was a summary of a law review article I've written for a symposium on the 14th Amendment and abortion, convened by Steve Gilles at Quinnipiac University School of Law. The symposium, inspired by Steve's recent pro-life legal scholarship, took place at Quinnipiac this past Saturday and included contributions from Michael Stokes Paulsen and Charles Camosy (as well as Steve and myself). The articles will be published in the Quinnipiac Law Review's late summer issue. (NB: The dean of the law school, Jennifer Brown, participated in symposium in its entirety, offering incisive questions and important critique. Her support of Steve's work -- and her engaged and thoughtful participation in the Symposium -- are an admirable example of an institutional commitment to intellectual diversity. Bravo!)
For those who haven't read Gilles' pro-life work, Why The Right to Elective Abortion Fails Casey's Own Interest-Balancing Methodology -- and Why It Matters, 91 Notre Dame L. Rev. 691 (2015) is a good place to start. His forthcoming article is a much-needed critical analysis of Whole Women's Health v Hellerstadt, and specifically, Justice Breyer's failure to be faithful to Casey. With characteristic surgical precision, Gilles explores the Casey compromise, and why Hellerstadt could be a bigger blow than some might realize.
My forthcoming article argues that Casey has been inadequately understood by those most critical of it. Specifically, I argue that concerns about women's equality are the interpretative lens through which to read the substantive due process discussion (re women's "unique liberty"), the attempted (and I think failed) comparison of the contraception cases with Roe and its progeny, and finally the stare decisis holding (wherein the oft-quoted 'reliance' language makes its debut). (Much too could be said about the spousal notice discussion but I give it only a footnote, perhaps to return to it more fully some other day.) Here's a bit from my HLS talk:
Many have ably critiqued the Court’s use of stare decisis in Casey both as a general constitutional matter and by taking each of the considerations the Court reviews one by one...most notably the late Justice Scalia in his Casey dissent and eminent constitutional law professor Michael Stokes Paulsen. But when, in the Joint Opinion, the Court declared that “a terrible price would be paid for overruling [Roe],” both Scalia and Paulsen understand the Court to be concerned primarily with the legitimacy and integrity of the Court itself. Though it’s probably not so prudent to argue against these two constitutional giants, I think the text of the Joint Opinion indicates that the Court was actually primarily concerned with something else: the impact reversal would have upon women’s enhanced status in society. This is not to say that the voiced concern for the court’s legitimacy and institutional integrity expressed in Part III of the Casey decision was not important to the justices in the plurality, for surely the space afforded and the sheer energy manifest in that part reveal that it was.
It is to say, however, that by its own terms, Casey indicates that women’s constitutionally protected "liberty" to access abortion to “participate equally” in the “economic and social developments” of the nation is the key concept undergirding the controversial reaffirmation. Now perhaps the Court’s concern about its own institutional integrity may have gone hand in hand with worries about how the Court would have been perceived had it upended the constitutional right to abortion--what had become, over the intervening nineteen years, the sine qua non of the modern day women’s movement. My point here is not to disturb others’ critiques of the stare decisis or institutional integrity arguments; my point is only that critics of Casey have not taken the underlying concerns about women’s equality seriously enough.
I spend some time exploring and then critiquing the reliance arguments concerning the interplay between abortion and contraception (arguing, most fundamentally, that the moral hazard effects of abortion as a back up to failed contraception has made this interplay far more complex than the Casey plurality assumes). I then look at the reliance arguments concerning women's equal participation in social and economic life. Here's some from the presentation, where I borrow from Justice Holmes' dissent in Lochner to shape my point:
[W]hen Holmes wrote in his Lochner dissent that "a constitution is not intended to embody a particular economic theory,” I would suggest that these words are equally applicable to Roe, and more explicitly to Casey, if one replaces “economic theory” with “feminist theory.” For by constitutionalizing the right to abortion in Roe, and reaffirming it through equality reasoning in Casey, that is precisely what the Court was doing: it illicitly appropriated a particular feminist theory, newly popularized in the 1970s, into the Court’s interpretation of the 14th amendment --with social consequences that remain salient for women today....
Just as the Lochner court chose to constitutionalize one particular theory of how to respond to the asymmetries in the employer/employee relationship after the cultural upheaval of the Industrial Revolution, Casey doubled down on a particularly inhumane way of securing women’s increased social status in society after the Sexual Revolution. In so doing, Casey thwarted more humane responses to the asymmetries that naturally exist—and socially persist—due to women’s disproportionate role in human reproduction.
I'll post when the issue comes out.