Twenty years ago this month, a bitterly divided Supreme Court handed down Planned Parenthood v. Casey, one of the most important opinions delivered by the Court on the meaning of the Constitution’s protection of liberty and equality for all Americans. In a landmark joint opinion, authored by Justices Anthony Kennedy, Sandra Day O’Connor, and David Souter, a narrow five-Justice majority reaffirmed what they called the “essential holding of Roe,” beating back a twenty-year assault on the Supreme Court’s decision in Roe v. Wade and the notion that the Constitution protects substantive fundamental rights not enumerated elsewhere in the Constitution. In the process, the Justices rooted protection of a woman’s right to reproductive choice, not in a generalized right of privacy as Roe had, but in a woman’s right to bodily integrity, to personal liberty, and to equal citizenship. (For more discussion, see CAC’s Crossroads Chapter on Reproductive Freedom). As a senior in college at the time, I had the incredibly good fortune of working on the legal team representing Planned Parenthood at the Supreme Court – alongside brilliant and courageous attorneys Kitty Kolbert and Linda Wharton – and to this day my work on Casey is still one of the proudest moments of my career in the law.
Casey’s understanding of constitutional protection for personal liberty and equality drew on the Court’s precedents going back 70 years and the doctrine of stare decisis. The joint opinion forcefully demonstrated that keeping faith with the Court’s precedents required reaffirming constitutional protection for a woman’s right to reproductive choice, while the dissenters argued that these precedents had to be jettisoned. Two decades later, thanks to the work of Jack Balkin, Reva Siegel, Dawn Johnsen and others, there is more basic foundation of support for Casey’s understanding of fundamental constitutional principles: the Constitution’s text and history. Contrary to conventional wisdom, both Casey’s analysis of the protection of substantive fundamental rights and of gender equality has deep roots in our Constitution’s text and history. Supporters of Roe and Casey should embrace these sources – just as much as precedent – in defending a woman’s right to reproductive freedom against attacks by conservatives.