"For almost twenty years, abortion policy in America has been controlled by the courts"
About this Quote
Robert Casey, the pro-life Democratic governor of Pennsylvania, was expressing frustration with the way Roe v. Wade (1973) and its progeny had nationalized abortion policy. By setting a constitutional right to abortion and imposing the trimester and viability frameworks, the Supreme Court invalidated many state laws and made courts the arbiters of where the permissible boundaries lay. For legislators like Casey, that meant policy choices were not primarily hammered out in statehouses but negotiated around judicial standards, with every new restriction likely to end up in litigation.
The remark also reflects Casey’s broader political stance. A New Deal Democrat who supported social welfare and labor but opposed abortion, he wanted space for what he called pro-life liberalism. His administration backed the Pennsylvania Abortion Control Act, with measures such as informed consent, a waiting period, and parental consent. When those provisions were challenged, the resulting case, Planned Parenthood v. Casey (1992), became a pivotal moment. The Court reaffirmed Roe’s core protection while discarding the rigid trimester scheme, replacing it with the undue burden test. Courts still set the constitutional boundary, but legislatures gained more room to regulate.
Calling abortion policy “controlled by the courts” is both critique and description. It points to the power of judicial review to preempt democratic compromise on morally fraught questions, and to the way constitutional doctrine can channel the political process. At the same time, it acknowledges that, in America’s system, courts define rights and limits, leaving elected officials to operate within those lines.
The trajectory after Casey underscores the tension he identified. Battles over admitting privileges, clinic standards, and fetal pain laws kept returning to the judiciary, culminating in Dobbs v. Jackson Women’s Health Organization (2022), which overturned Roe and Casey and returned primary authority to legislatures and voters. Casey’s observation thus captures a long era of judicial supremacy on abortion and the enduring struggle over who decides the rules in a divided polity.
The remark also reflects Casey’s broader political stance. A New Deal Democrat who supported social welfare and labor but opposed abortion, he wanted space for what he called pro-life liberalism. His administration backed the Pennsylvania Abortion Control Act, with measures such as informed consent, a waiting period, and parental consent. When those provisions were challenged, the resulting case, Planned Parenthood v. Casey (1992), became a pivotal moment. The Court reaffirmed Roe’s core protection while discarding the rigid trimester scheme, replacing it with the undue burden test. Courts still set the constitutional boundary, but legislatures gained more room to regulate.
Calling abortion policy “controlled by the courts” is both critique and description. It points to the power of judicial review to preempt democratic compromise on morally fraught questions, and to the way constitutional doctrine can channel the political process. At the same time, it acknowledges that, in America’s system, courts define rights and limits, leaving elected officials to operate within those lines.
The trajectory after Casey underscores the tension he identified. Battles over admitting privileges, clinic standards, and fetal pain laws kept returning to the judiciary, culminating in Dobbs v. Jackson Women’s Health Organization (2022), which overturned Roe and Casey and returned primary authority to legislatures and voters. Casey’s observation thus captures a long era of judicial supremacy on abortion and the enduring struggle over who decides the rules in a divided polity.
Quote Details
| Topic | Justice |
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