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Time to Put an End to the Abortion Era

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When it comes to the pro-life movement, Roe v. Wade – the Supreme Court decision that forced abortion on America and has, to date, caused over 50 million infant deaths – is the 800-pound gorilla that dominates conversation. However, it is not the only Supreme Court decision that should trouble pro-lifers. Since the Roe decision in 1973, Americans have sat back and allowed nine unelected justices, in the ultimate form of judicial activism, to tell our young women that it is okay to take the life of an innocent child, so long as it is prior to “viability.” While overturning Roe is foundational in the fight to end abortion, it does not stop there. If we are going to win this war, it is going to take us knowing every aspect of the battlefront, as our opponents so effectively do. So let us discuss another very important abortion Supreme Court case: Planned Parenthood v. Casey.

In Casey, the Supreme Court upheld Roe and set up an entirely new framework, limiting states’ power to make their own abortion laws.

The Commonwealth of Pennsylvania passed the Pennsylvania Abortion Control Act of 1982, and, before it could take effect, five abortion clinics and a class of abortion physicians filed suit, claiming the statute was unconstitutional. The statute required:

A woman seeking an abortion to give her informed consent and be given certain information 24-hours prior to having the procedure; Parental consent for minors; A married woman to sign a form stating that her husband is aware of the procedure; Record-keeping by abortion clinics and reporting of women who did not give spousal notice.

The law also provided an exemption for medical emergencies. The opinion is important because the Court rejected the trimester framework that was set up in Roe and instead adopted the “undue burden test” that has continued to be used to this day. The Court held that a state cannot place an “undue burden” on a woman seeking an abortion. A statute is unduly burdensome if it “places a substantial obstacle in the path of a woman seeking an abortion.”

In regards to the Pennsylvania statute, the Court held that requiring informed consent, 24-hour waiting period, record keeping, and parental consent for minors were constitutional and did not place an undue burden on women. These are important areas that provide great opportunities for states to act to protect women and unborn children. However, the Court ruled that requiring a woman to sign a form stating that her husband has notice of the procedure (and reporting her if not) was unconstitutional. The Court stated that this was an “undue burden,” because it allows for the husband “to wield, in effect, an unconstitutional veto over his wife’s decision concerning an abortion.”

Although more nuanced, after Roe‘s debacle, the Court continued to pursue in Casey its arbitrary, policy-making desires – something that was never intended for the Judicial Branch. It was, perhaps, an attempt to “fix” Roe, but it did nothing of the sort. It was just more policy making. An honest approach to Constitutional interpretation would have brought them to overturn Roe. Instead, the Justices tried to make the disastrous decision more palatable, like giving cherry flavoring to poison.

While some radical abortion supporters will argue that the Court was required to uphold Roe due to stare decisis (the legal doctrine requiring courts to follow earlier judicial decisions), this is simply not true. Stare decisis only applies when the previous case was decided correctly. By no means was Roe decided correctly. The justices read into the Constitution a “right” that is not there (and was never meant to be there), effectively legislating from the bench, which is a role specifically granted by the Constitution to the Legislative Branch and “we the people” in the case of a constitutional amendment. The justices in Casey hid behind stare decisis and decided to uphold an unconstitutional decision, because they agreed with the policies it promoted, not because they were required by law.

Today, 20 years later, the Supreme Court is still hiding behind stare decisis in upholding a “right” to abortion. It is time for the Court to come out from behind their Roe “smoke and mirrors” and end the Court-imposed abortion era. They must overturn both Roe and Casey.

Justice Antonin Scalia said it best in his dissent in Casey:

We [the Supreme Court] should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.