Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—June 11

1986—In a 5-4 ruling, the Supreme Court, in a majority opinion by Justice Blackmun (in Thornburgh v. American College of Obstetricians and Gynecologists), declares unconstitutional the informed-consent (and various other) provisions of the Pennsylvania Abortion Control Act of 1982.

The ruling triggers three noteworthy dissents: Chief Justice Burger, who was part of the majority in Roe v. Wade, says that if the result in Thornburgh is consistent with Roe, then “we should reexamine Roe.” Justice White, the JFK appointee who dissented in Roe, expressly calls for Roe to be overruled. And Justice O’Connor observes that Justice Blackmun’s majority opinion “makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.” (Six years later, in Planned Parenthood v. Casey, O’Connor will practice the same ad hoc nullification of legal rules on abortion that she decries.)

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