A Landmark Decision

...While the New Republic volunteered that "We can imagine any number of plausible ways that Roe might have been clearly overturned," the magazine's editors failed to explain why if a woman's choice was indeed "a right," it should be protected only "by politics," and not by the Constitution and by the judiciary...

...Supreme Court's June 29 abortion decision in Planned Parenthood of Southeastern Pennsylvania v. Casey almost certainly guarantees that the central core of the Court's 1973 holdings in Roe v. Wade and Doe v. Bolton will never again be in any significant danger of being obliterated or overruled by the nation's highest court...

...While the most notable salvo in this attack still remains John Hart Ely's April 1973 essay in the Yale Law Journal, formerly "liberal" columnists and journals continue the assault today...

...Undoubtedly the most notorious such voice remains the New Republic, which recently castigated not only Roe, for "creating by judicial fiat a right that should be protected by politics," but also by implication Griswold, which it termed "flimsy...

...The relationship to Cooper and to Brown was clearly in mind...

...For the trio to choose to employ the "joint" format was hence a conscious step of remarkable significance...

...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...

...Activist groups on both sides of the abortion issue have a strong self-interest—financial as well as emotional—for refusing to consider whether June 29 will, in retrospect, be recognized as the final high-water mark of America's intense struggle over whether a woman's right to choose merits constitutional protection as an undeniable aspect of the individual liberty guaranteed by the Fourteenth Amendment...

...Most notably, as Harvard Law School professor Laurence H. Tribe emphasized, the joint opinion "puts the right to abortion on a firmer jurisprudential foundation than ever before...

...The landmark importance of the joint opinion in Casey has in part been obscured by the disingenuous reactions of leading interest groups, but knowledgeable Court-watchers and leading constitutional specialists quickly recognized what the SouterO'Connor-Kennedy trio had achieved...

...But Casey very likely is that highwater mark, and if indeed it is, the joint opinion for the Court authored by Justices David H. Souter, Sandra Day O'Connor, and Anthony M. Kennedy will rightfully come to be recognized as one of the most important statements about individual rights and the judiciary's role in affording them constitutional protection issued by the Court in this century...

...As the New York Times recently declared, Justice Blackmun's 1973 opinions in Roe and Doe were "a brilliant resolution of seemingly irreconcilable interests...

...Senate, Roe's right to choose now stands more firmly and unchallengeably ensconced in American constitutional law than ever before...

...The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives," and "an entire generation has come of age free to assume Roe's concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions...

...And for that, Souter, O'Connor, and Kennedy deserve significant credit...

...And, as Dworkin similarly emphasized, the Casey majority's upholding of some of the Pennsylvania statute's anti-abortion provisions—particularly the twentyfour hour "waiting period" requirement—was explicitly provisional: "its decision on the point was tentative in a way that many newspaper reports have not made sufficiently clear...

...it comes also from the special judicial forms that the Souter-O'ConnorKennedy trio chose to employ...

...As Justice Blackmun himself said, the joint opinion was "an act of personal courage and constitutional principle," and one whose legacy, much as Blackmun hopes, will quite certainly prove powerful and enduring...

...But given Griswold, and the powerful influence Griswold had on early abortion activists, Roe was—as Justice Stevens noted in Casey—in many ways almost inevitable...

...for the three justices then to each deliver a portion of that opinion orally from the bench was an even more "extraordinary step," as the Washington Post noted...

...Many difficult pro-choice struggles remain ahead, but the biggest battle is now indeed over, even if the most committed partisans on both sides of the struggle do not yet recognize or acknowledge it...

...The joint opinion also reflects a clear-eyed realism about modern American life...

...Similarly, Linda Greenhouse of the New York Times—a truly gifted reporter and interpreter of the Court—characterized the joint opinion as providing "a tightly reasoned framework for a constitutional right to abortion" that was "in some respects . . . clearer and stronger than [Roe] itself...

...Pro-choice lawyers inescapably have several years of difficult lower court litigation ahead of them, in Pennsylvania and elsewhere, to build a powerful and persuasive record of why "waiting periods" and mandatory doctorpatient readings of state-authored anti-abortion propaganda set-pieces are "substantial obstacles" or "undue burdens" to the constitutionally protected right to choose—litigation that will be difficult because of the plethora of hostile Reagan-Bush appointees now staffing lower federal courts—but that struggle too is a winnable one...

...Unlike the 1973 opinions in Roe and Doe, where great emphasis was placed upon the medical history of abortion, in Casey both the joint opinion and the concurring opinions of Justices John Paul Stevens and Harry A. Blackmun focused on the undeniable centrality of the right to choose for advancing gender equality in present-day America...

...Justice Kennedy, undeniably the most unexpected member of the pro-Roe majority, likewise orally delivered another portion explaining the constitutional importance of reproductive choice: "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...

...In abortion, "the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law...

...But Bork and the New Republic are now far outside the constitutional mainstream, as the achievement of Justices Souter, O'Connor, and Kennedy in Casey so powerfully and surprisingly 428 • DISSENT makes clear...

...Brown itself took at least sixteen years to win meaningful acceptance and application, and the case upon which Roe was largely based, Griswold v. Connecticut, the 1965 decision eliminating the criminalization of the use of birth control and according explicit constitutional protection to a right of marital privacy, did not attain such unchallengeable acceptance until 1987, when its most notorious critic, Robert H. Bork, saw his attacks upon it rejected both by the Senate and—even more overwhelmingly—by American public opinion...

...Our obligation is to define the liberty of all, not to mandate our own moral code...

...But very few people still appreciate that, in large part because most of the critical damage that Roe has suffered over the last two decades has been inflicted by pro-choice, not right-to-life, commentators...

...The entire Court took that step in 1958 in Cooper v. Aaron, invoking all of its institutional stature to ringingly reaffirm Brown v. Board of Education of Topeka in the face of Arkansas' official refusal to comply with federal court orders mandating the token desegregation of Little Rock's Central High School...

...But the remarkable stature of the Casey decision stems not only from the constitutional and social conclusions it articulates...

...And their greatest achievement, the elevation of Roe's central holding to a firmer status than it ever before has attained, will, like Griswold, in all likelihood receive its most powerful affirmation in the world of politics, rather than in law: never again, after what Souter, O'Connor, and Kennedy have done, can any plausible nominee for the Supreme Court—irrespective of whom the president might be—go before the Senate Judiciary Committee and refuse to do anything less than to endorse at least the trio's joint opinion in Casey...

...Some of us as individuals find abortion offensive to our most basic principles of morality," said one section of the joint opinion read by Justice O'Connor from the bench, "but that cannot control our decision...

...Judge Bork, please call home...

...Barring only the election of fifty or more Jesse Helmses to the U.S...

...it may very well never have previously occurred in the Court in this century...

...Many statements in the joint opinion may come as very pleasant surprises to people who have only a gray, stereotypical image of Souter, O'Connor, and Kennedy...

...While two decades of medical advances have "overtaken some of Roe's factual assumptions . . . the divergences from the factual premises of 1973 have no bearing on the validity of Roe's central holding, that viability marks the earliest point at which the state's interest in fetal life is constitutionFALL • 1992 • 427 ally adequate to justify a legislative ban on nontherapeutic abortions...

...Without Griswold, without the legal recognition it gave to the potential expanse of reproductive liberty and autonomy, neither Roe nor any judicial recognition of constitutional protection for an individual right to choose abortion would have followed...

...And it's winnable in significant part because of the Souter-O'Connor-Kennedy joint opinion's most important if nonetheless ineffable and subtle achievement: the final and much-delayed elevation of Roe to the special, "higher law" status accorded to initially controversial landmark rulings such as Brown...

...Joint" opinions— those explicitly presented as multi-authored—are exceedingly rare in Supreme Court history, and are employed only on extraordinarily special occasions...

...A New York University jurisprudential scholar Ronald Dworkin, writing in the August 13 New York Review of Books, accurately noted, the Casey joint opinion "may prove to be one of the most important Court decisions of this generation...

...In the portion of the opinion read orally by Justice Souter, a section that Greenhouse rightly described as reflecting "a remarkable sense of personal passion and urgency," the comparison of Roe to Brown was made explicit, and Souter declared that "to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question...

...Just as in recent years even Judge Bork had to stretch and tear all of his jurisprudential notions so as to fit a firm and explicit affirmation of Brown into his worldview, and just as nominees Kennedy and Souter felt bound to offer endorsements of Griswold, henceforth each and every nominee will have to endorse at a minimum the trio's articulation of individual choice as a Fourteenth Amendment liberty in Casey...