Bench Memos

Law & the Courts

Casey’s False Reliance Claim

For now, I’ll highlight just one more article (on top of the two I covered in these posts) in the new “End Roe” issue of National Review.

In its stare decisis analysis of Roe v. Wade, the plurality opinion in Planned Parenthood v. Casey (1992) concocted what Chief Justice Rehnquist in dissent properly labeled “an unconventional—and unconvincing—notion of reliance.” In the plurality’s view:

[F]or two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. 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.

Set aside the fact that this is not the sort of reliance—detrimental reliance—that stare decisis protects against (see EPPC amicus brief at 14-15), and set aside further that the democratic processes can fully take into account these concerns. Even on its own terms, Casey’s reliance argument fails.

As my EPPC colleague Erika Bachiochi explains, easy access to abortion encouraged “more sexual risk-taking,” which in turn “resulted in more children conceived, and increasingly outside of marriage.” This has not benefited women generally:

Ironically, in the world that Roe created, the risks of sex — and the responsibilities of having children — have been assumed disproportionately by women. For far too many men, children are no longer part of the sexual bargain.

Further, Bachiochi argues, Roe and Casey

bear some blame for the fact that workplaces remain deeply inhospitable to women (and increasingly men) with children. Rather than challenge workplace norms head-on, the decades-long quest for unfettered abortion feeds into the model of the ideal male worker who is beholden to no one but his boss. If abortion is what enables women to participate in the workplace, then perhaps costly accommodations, flexible work schedules, and part-time-pay equity are not so necessary.

Recalling a history that many choose to ignore, Bachiochi concludes:

The earliest women’s-rights advocates in this country knew that for women to participate more fully in the economic and social life of the nation, the nation would need to become far more hospitable to children and the women who bear them. The first woman to run for president of the United States, in 1872, was not only an outspoken advocate of constitutional equality for women, she also advocated the rights of children — rights that, as she said, “begin while yet they remain the fetus.” Victoria Woodhull and the women’s-rights advocates of her time knew what 1970s feminist advocates of abortion would come to forget: The advancement of women will be possible only when the dignity of their children, born and unborn, is protected.

(Bachiochi’s article draws on the amicus brief that she co-authored on behalf of a large group of women scholars and professionals in the pending Dobbs case.)

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