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January 22, 2007

Blog for Choice: The Facts of Casey

by PG

Blog for Choice Day - January 22, 2007

Attempting to defend Casey's adherence to stare decisis, Prof. Kenji Yoshino summarizes,

The difficulty, then, is deciding how much deference the doctrine of stare decisis requires in any given case. Before Casey, the Supreme Court treated this issue as an art rather than a science. In Casey, however, Kennedy, O'Connor, and Souter (here speaking for a majority of the court) took a more comprehensive approach, observing that the court usually looked to four "prudential and pragmatic considerations." Precedents would be likely to be overruled if they had proven to be unworkable as a practical matter; if there had not been general social reliance on the rule; if there had been subsequent changes in doctrine; and if there had been subsequent changes in fact. Applying these factors to Roe, the justices found that they all cut in favor of upholding the legal right to abortion.
In fact, however, there had been subsequent changes in fact that the Casey plurality implicitly acknowledges in abandoning the trimester framework for pre-viability (no undue burdens allowed) and post-viability (prohibition with exceptions for health and life): with improvements in medical technology, fetuses could survive living outside the womb at a younger age in 1992 than in 1973. There also could be widespread changes in perception due to the now-standard use of ultrasounds, which don't seem to have been routine in ob-gyn care until the 1980s, and which permit fetuses to be viewed as individuals; while scientific textbooks had ultrasound images of fetuses before 1973, they were unlikely to have been seen by the general public, whereas nowadays people put ultrasound pictures into baby albums as the "first picture." This cultural shift may have a legal consequence.

Paradoxically, the use of a medical tool may shift more people from considering the entity, the legality of whose death is debated, to be a fetus (medical Latin), toward considering it to be an unborn child. Justice Scalia, who preferred the latter term in his Casey dissent, criticized the Roe holding for assuming that "a human life" was not at stake. Scalia was of course referring to the fetus, not the woman carrying it.* For most of human history, before the fetus starts manifesting itself through movement -- what Jewish/ Islamic ethicists called quickening and made the point at which personhood began -- it was known to be there mostly because of what the woman carrying it was doing: stopping menses, throwing up, gaining weight. Now, even before the traditional 40-day point of quickening, the gestational and yolk sacs, and embryo size, can be visualized by ultrasound.

While I don't think viability will be pushed much further back unless we figure out how to mature air sacs outside the uterus, I do think we can continue to improve our ability to see the unviable fetus. Thus if Casey rests partly on people's perception of whether a fetus is a person with 5th and 14th Amendment rights -- even if there's no change in the fact of the alleged person's ability to live without remaining inside the specific woman in whom the embryo implanted -- this seems to me a significant problem in Casey's underpinnings. Once the clash is between the Constitutionally unstated right to have the particular privacy of being free of pregnancy (a right also at issue in Griswold and other contraception cases), and the Constitutionally stated right not to be deprived of life without due process, Roe and its progeny are likely to crumble, because they have not been decided to withstand that particular pressure.

To regard the fetus as a legal person would itself be a departure from tradition, something Justice Scalia fails to note in his various litanies about how abortion and homosexual sodomy** "are forms of conduct that have long been criminalized in American society." Fetuses aren't counted at census, the IRS ignores them, they don't inherit until they're born alive and until recently, they weren't entitled to health care and killing a pregnant woman was charged as a single homicide, albeit an especially heinous one. Attempts to chip at Roe have produced pretty much all the areas of law of which I know that have any regard for the fetus whatsoever. When Scalia decries Roe for seeing the conflict as being between an individual's liberty and a State's morality police, he seems to forget that this is how the states themselves regarded it. When criminalized, abortion tended to be treated differently from murder, and even to be in a different section of legislative codes. For example, the Code of Virginia put "18.2-71. Producing abortion or miscarriage," which language has existed since the 1950 revision, down after the sex crimes; "18.2-32.2. Killing a fetus," a 2003-originated crime, is up with murder and manslaughter.

If improved imaging technology creates a public perception of fetuses as people, it will be a blow to the Casey majority, but also to the demand for adherence to tradition touted in the Casey dissent.

* Possibly the summit of disembodying fetuses from women comes when Scalia declares the Casey majority to being saying that "'liberty' must be thought to include the right to destroy human fetuses." As far as I know, the Supreme Court never has said that women have the right to destroy human fetuses willy nilly -- to sedate other pregnant women and vaccum fetuses from their uteruses -- only the right to remove fetuses from their own bodies.

I admit that I seem to be particularly far out of line with Scalia's thinking in this case. He puts forward "the only way to protect the right to eat is to acknowledge the constitutional right to starve oneself to death" as a statement of self-evident absurdity, yet it seems to me quite reasonable. If I don't have the right to starve myself to death, then what does my "right to eat" mean? Or to align more closely with actual Constitutional questions, if I don't have the right to be silent, then what does my right of free speech mean? If the state can force me to bear children, why can it not prevent me from bearing children -- indeed, as our never-overruled Constitutional tradition says it can?

** I heart how Scalia always uses the phrase "homosexual sodomy." Had I chosen to question him about sodomy, it would have been the slightly more polite question: "Justice Scalia, are you aware that heterosexuals also sodomize one another? And if so, is the reason that you always refer to homosexual sodomy that you think heterosexual sodomy is textually protected (if so, please point to the Constitutional clause), or that you don't believe it has been historically criminalized in American society -- the actual statute at issue in Bowers notwithstanding?"

January 22, 2007 03:38 AM | TrackBack
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