In Casey, the Supreme Court formulated an “undue burden” test to limit state regulation of abortion up to viability of a fetus, replacing the trimester formulation under Roe. But Casey also left a long trail of case law that has become legal precedent for decades.
Charles Fried, who served as solicitor general under President Ronald Reagan, offered a concise reminder of the broader implications in a New York Times op-ed. Casey, he writes, put the right to abortion “on a firmer constitutional basis: the dignity and autonomy of the pregnant woman and the equal rights of women more generally.” He warns:
Since that time, Casey had been cited and used as a basis of constitutional reasoning in many decisions in many areas of the law, including gay rights and the parental rights of a surviving parent. The decision has not only taken root; it has flourished and ramified.To overturn Roe now would be an act of constitutional vandalism — not conservative, but reactionary.
The text of Casey is striking in that it enunciates a huge scope of constitutional protections. Protection for access to abortion, the court affirmed, “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 court emphasized, “The controlling word in the cases before us is ‘liberty.’”
Decades of constitutional law reiterate that rights protected by the 14th Amendment were not limited to those specifically delineated in the Constitution. The protections of the 14th Amendment create “a realm of personal liberty which the government may not enter.” That is the central holding of Casey: Abortion is contained within that realm, and it extends to a host of decisions that reflect one’s individual autonomy, dignity and self-determination.
“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment,” the court held. “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 of the State.”
That protection extends not only to marriage, the court held in Casey (and later in Obergefell v. Hodges for same-sex couples), but also to “procreation, contraception, family relationships, child rearing, and education.” The right to home-school your child? The right to cohabitate with family members? The right to buy birth control? The right to have as many children as one sees fit? Pull on the string to unravel Casey, and rights that all Americans, from the most conservative to the most progressive, take for granted could come undone.
Texas’s antiabortion law received such an overwhelmingly negative reaction — even among those who consider themselves “pro-life" — because it violated the dignity, respect, privacy and humanity of women who would be subject to spying and abuse for the sake of a $10,000 bounty.
The decision whether to carry a pregnancy to term, Casey held, is “too intimate and personal for the State to insist, without more, upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture. 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.” To compel a woman to complete her pregnancy against her will is to rob her of an essential component of her humanity.
That is what is at stake with a potential override of Casey. And if abortion does not meet one’s personal definition of a decision “too intimate and personal” for the state to be involved with, perhaps the right to make decisions about one’s health or the education of their children does.
Abortion rights advocates, court watchers and the media more generally err in defining the stakes of overturning Casey too narrowly. And it is an insult to people’s intelligence to say it is about “returning” abortion decisions to the “people”; it is about robbing women of a decision central to their personhood and denying them the right to self-determination. If that is what the right-wing Supreme Court is after, the justices should be clear about the awesome power of the state they are unleashing on Americans.