Twenty years ago today, the Supreme Court issued its ruling in Casey v. Planned Parenthood. At the time, the 5-4 decision was a crushing disappointment to pro-lifers and conservatives. The bitter fight to get Clarence Thomas confirmed the year before was mostly predicated on the idea that he supply the fifth vote to overturn Roe v. Wade. An anti-Roe majority existed on the Court until Anthony Kennedy flipped his vote. (Sound familiar?)
The end result was a decision that upheld Roe‘s core holdings. The plurality opinion was joined by three Republican appointees: Kennedy, Sandra Day O’Connor, and David Souter. Kennedy’s opinion was filled with philosophy prof howlers like this: “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.”
But Casey did uphold most of the Pennsylvania abortion restrictions that were at issue in the case. In doing so, it opened the door for more state-level regulations where the public sided with pro-lifers: parental-notification laws, parental-consent laws, waiting periods, informed consent laws requiring women to be given information about abortion and its alternatives, etc. There was a further setback in the Court’s Stenberg v. Carhart decision, but then further progress was made with Gonzales v. Carhart, upholding tougher clinic regulations and bans on certain abortion procedures.
Between 1992 and 1996, the number of abortions dropped from a peak of 1.6 million annually to about 1.2 million. By some estimates, the abortion rate declined by 33 percent. Public opinion and state laws have moved in a pro-life direction. All of which occured after a Supreme Court decision that was supposed to resolve the abortion debate as a permanent defeat for the pro-life movement.
Health care reform is a different issue than abortion, obviously. But Casey is a good reason to not accept National Federation of Independent Business v. Sebelius as a permanent defeat either. Turning points can be found in unexpected places.
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