Dred Scott, Again

By Robert, P. Casey, Governor Pennsylvania

Robert P. Casey, Democrat and Governor of Pennsylvania, presented this speech to a conference on abortion and public policy, hosted in March, 1993 by Saint Louis University. Significantly, he gave his remarks at a special session in the historic old Courthouse in St. Louis, where the original Dred Scott trial was held.

Please Note: The section titles were not originally part of the speech, but were added for reader clarity.

Also, this appeared in the Spring, 1993 issue of the Human Life Review under the title “Law Without Honor”.

All of us are joined in our conviction that abortion is a bad thing. And although many of us are Catholics, we are also joined in the conviction that abortion is not simply a Catholic concern. It’s a catholic concern with the small c — the concern of anyone who rejects the idea of human life as a disposable commodity. The concern of anyone with eyes to see, a mind to reason, and a heart to feel.

It is not an arrogant boast, but a demographic fact that most Americans share this conviction. Anytime the question is put squarely to them, “Do you oppose abortion on demand?”, more than two out of three Americans answer YES. Perhaps the most telling survey of all found that 78 percent of the people would outlaw 93 percent of all abortions — all but the familiar hard cases. Even in the last election, in which all sides sought to shelve the issue of abortion, exit polls revealed its central importance in the minds of most voters.

To those who favor liberal abortion policies, this persistent opposition is a mystery, a disturbing sign of something backward and intolerant in our society. Sometimes the abortion lobby pretty much concedes that Americans by and large favor restrictions on abortion — as when Pennsylvania’s abortion laws were upheld by the Supreme Court. Such setbacks to their cause leave abortion advocates bewildered and alarmed, convinced that Americans still need to be “educated on the issue.”

Other times — like right now — their tactic is to obscure public opinion by marginalizing the pro-life side, dismissing critics of their cause as a handful of fanatics resisting the tide of opinion. A quarter-of-a-million people may gather to protest abortion on the Washington Mall, and if the media notice them at all, they’re treated almost in a tone of pity, like some narrow fringe estranged from modern realities. As I discovered, even the governor of a major state who holds pro-life views can be denied a hearing at his party’s convention without the national media protesting it. The success of this tactic is truly a public-relations triumph, possible only in an environment which constantly marginalizes and suppresses the pro-life message. And despite 20 years of brainwashing, the American people have not been fooled. If the majority of the Americans support abortion, why have three of the last four presidential elections been won resoundingly by pro-life candidates? If my position is irrelevant, then so, I’m afraid, are the views of some 80-85 percent of the people of Pennsylvania and the United States.

As I read the polls showing our continuing unease with abortion, nothing makes me more proud to call myself an American. Among the “herd of independent minds” who make up our opinion leaders, abortion may be taken as a mark of progress. But most Americans have not followed. In the abortion lobby’s strange sense of the word, America has never been a “progressive” nation. For we know — and this used to be the credo of my party — that progress can never come by exploiting or sacrificing any one class of people. _Progress_ is a hollow word unless everyone is counted in and no one written off, especially the most weak and vulnerable among us.

You cannot stifle this debate with a piece of paper. No edict, no federal mandate can put to rest the grave doubts of the American people. Legal abortion will never rest easy on this nation’s conscience. It will continue to haunt the consciences of men and women everywhere. The plain facts of biology, the profound appeals of the heart, are far too unsettling ever to fade away.

Abortion and My Public Life

The abortion issue has intersected with my public life from the very beginning. It started in 1966, seven years before Roe vs. Wade. The occasion was the Pennsylvania gubernatorial primary. New York had just passed a very liberal abortion law, and the question was, would I sign such a law in Pennsylvania if it were to pass? My opponent’s answer was that this was an issue only women fully understood; that he would appoint a women’s commission to study the issue, if elected; and that he would sign such a law, if enacted, in Pennsylvania. My response was simple and unequivocal: If the law were to pass, I would veto it.

I lost that primary by a narrow margin. I am fairly certain that my abortion position hurt me, because in a Democratic primary, where turnout is relatively low, liberal voters turn out in disproportionately large numbers and thus exercise a disproportionate influence on the outcome.

The point I want to make about my decision process in 1966 is this: I took the position against a liberal abortion law instinctively. I did not consider it to be a position dictated by my Catholic faith. As a matter of fact, the Catholic Church took no clear position in the primary, and many Catholics worked openly and actively for my opponent.

For me, the imperative of protecting unborn life has always been a self-evident proposition. I cannot recall the subject of abortion ever being mentioned, much less discussed in depth, in school or at home. My position was simply part of me from the very beginning.

When I was elected governor in 1986, both my Democratic primary opponent and general election Republican opponent were pro-choice. The general election was a photo finish. When my opponent and I debated on statewide television shortly before the election, the inevitable question was asked, “If the Supreme Court overruled Roe vs. Wade, and the Pennsylvania legislature passed a law banning all abortion except to save the life of the mother, would you sign it?” My opponent said that, while there were “too many” abortions in our country, and we should work to reduce that number, he would veto the law banning abortion. My answer was, “Yes, I would sign such a law.”

My campaign people thought that my answer, with no qualifiers — no IFs, no ANDs, and no BUTs — had lost the election. I won by about 75,000 votes.

When I ran for reelection in 1990, my Republican opponent was stridently pro-choice. The abortion issue was the motivating factor behind her candidacy. SHe was banking on the conventional wisdom of the period — the post-Webster period — when the pro-choice groups tried to convince the country that women, shocked by the Webster decision, would rise up and drive all pro-life candidates from public life. And their message was as National Organization for Women in Pittsburgh said that I was sick and would probably be dead before the election. (I had had open-heart surgery in 1987.) My opponent called me “a red-necked Irishman.” The National Abortion Rights Action League released a poll purporting the election to be a dead heat when people were informed of my position on abortion. Pro-choice groups sent several dozen of their supporters to the Governor’s Residence, where they chanted, “Get your rosaries off my ovaries,” as the television cameras whirled. And my opponent, who spent $2 million, dramatized my position of refusing to recognize an exception for rape by running a television commercial that purported to depict a rape, and in which it was difficult to distinguish me from the rapist.

I won by over one million votes, the largest winning margin in Pennsylvania gubernatorial political history. I am convinced that the abortion issue was the key factor in that victory.

My Pro-Life Views and My Oath to Uphold the Constitution

But, in between 1986 and 1990 campaigns, I came face to face for the first time with a conflict between my personal and public position on abortion, and what I regarded as the duty imposed by my oath of office to “support, obey, and defend” the Constitution of the United States. As a lawyer, I was trained to believe that the Constitution means what the United States Supreme Court says it means. The consequence of that line of reasoning was that I could not sign a law which was, on its face, in direct conflict with what the Supreme Court had decided, even when I personally did not agree with the Supreme Court’s ruling.

That issue was squarely presented when our legislature, in December 1987, before the Webster ruling, passed an abortion control law which required the woman to notify the father of the child, This meant the biological father, whether or not he was the spouse of the woman. The Supreme Court had already struck down as unconstitutional even a spousal notification requirement, where the biological father was the woman’s husband, and the two were living together in a normal domestic relationship.

I vetoed the law, pointing to my constitutional duty, under my oath, and the futility — from the standpoint of protecting human life — of passing a law which had no chance of ever taking effect to help the unborn. This is what I said in my veto message:

“Let me restate in summary the distinction between personal belief and constitutional duty as it applies to this legislation. I believe that abortion to be the ultimate violence. I believe strongly that Roe vs. Wade was incorrectly decided as a matter of law, and represents a national public policy both divisive and destructive. It has unleashed a tidal wave that has swept away the lives of millions of defenseless, innocent unborn children. In according to the woman’s right of privacy in the abortion decision both exclusivity and finality, the Supreme Court has not only disregarded the right of the unborn to life itself, but has deprived parents, spouses and the state of the right to participate in a decision in which they all have a vital interest. This interest ought to be protected, rather than denied by the law. This policy has had, and will continue to have a profoundly destructive effect upon the fabric of American life. But these personal beliefs must yield to my duty, imposed by my oath of office, to follow the Constitution as interpreted by the Supreme Court of the United States…

Most importantly, I emphasize again that we must — and we will — enact a strong and sustainable Abortion Control Act that forms a humane and constitutional foundation for our efforts to ensure that no child is denied his or her chance to walk in the sun and make the most out of life. I will sign this bill when it reaches the end of the legislative process and attains those standards.”

Following the veto, my staff and I worked closely with pro-life groups and legislative leaders to draft the Abortion Control Act of 1989 within the framework of the Supreme Court cases, including the Webster decision. The law requires parental consent for minors, informed consent, and a 24-hour waiting period. These limitations were upheld in Planned Parenthood of Southeastern Pennsylvania vs. Casey. A spousal notification requirement in the law was struck down.

Thus, while concluding that my oath of office precluded me from signing an unconstitutional law, I also recognized a right, if not a duty, to work to change the law within the democratic process. First, by enacting a law that was designed to limit and reduce abortions within the constitutional authority of the states. Second, to speak out in favor of the protection of human life so as to influence others, including federal and state policymakers, so that they, too, would adopt this view.

Relationships Between the Rulings of the Supreme Court and the Constitution

I have described how I understood my position in 1987. But now, six years later, I feel compelled to inquire further: What exactly is the relationship between the rulings of the United States Supreme Court and the Constitution I am bound to uphold?

As everyone knows, the Court can be — and has been — seriously wrong. The Court erred in the case of Dred Scott. And I believe that the Court erred in the case of Roe vs. Wade.

In this context [Conference on Abortion and Public Policy], in this place [the old Courthouse in St. Louis], one cannot help but recall Abraham Lincoln’s attitude toward the Supreme Court’s Dred Scott decision, which he and so many others believed to be disastrously wrong.

Lincoln viewed the Dred Scott decision as “not having yet quite established a settled doctrine for the country.” A year after the decision, he said, “If I were in Congress, and a vote should come up on a question whether slavery should be prohibited in a new territory, in spite of the Dred Scott decision, I would vote that it should.” Several years later, Congress did precisely that. In open defiance of Dred Scott, Congress outlawed slavery in the territories.

In his first Inaugural Address, Abraham Lincoln, in referring to the Dred Scott case, expressed the view that the other officers of the government could not be obligated to accept any new laws created by the Court unless they, too, were persuaded by the force of the Court’s reasoning. Any other position would mean, in his view, that “the policies of the government upon vital questions, affecting the whole people [could] be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between two parties, in personal actions.” If that were to occur, said Lincoln, “the people will have ceased to be their own rulers, having to that extent practically resigned the government into the hands of that eminent tribunal.”

After much thought and reflection since 1987, I must confess that I am more and more persuaded that Lincoln’s view should be the standard for pro-life elected officials in 1993 and beyond.

The Responsibilities of a Pro-Life Politician

The question I now want to address is this: What are the responsibilities of a pro-life politician? For no matter what the majority sentiments may be, the drift of law favors abortion. Our courts, which do not operate on a majority rule, say abortion is legal, an implied constitutional right to privacy found nowhere in the text of the Constitution. For a politician like myself, opposition to abortion may thus become opposition to the existing laws one is sworn to uphold.

What then do conscience and duty require?

I believe the first step is to understand that such dilemmas are not new to our day. Any man who has ever tried to use political power for the common good has felt an awful sense of powerlessness. There are always limits on what we can do, always obstacles, always frustrations and bitter disappointments.

This was the drama a future president once studied in Profiles in Courage, a book that now seems quaint in its simple moral idealism. The founders of our country understood the limits of political power when they swore allegiance to something higher — their “sacred honor.” Lincoln felt this tension when he sought to uphold the equality of men. His real greatness was in seeing that political reform alone wasn’t enough; not only the slave had to be freed, but the slaveowner from the bonds of his own moral blindness. Likewise, Thomas More expressed the dilemma when, faced with the raw power of the state, he declared, “I die the king’s good servant but God’s first.” Far from being a new problem, this tension goes all the way back to the Pharisees and their challenge to declare for or against Caesar.

Just as the problem is an old one, so are the alternatives. One of these alternatives is accommodation with power, a pragmatic acceptance of “the facts.” In the abortion question, this position is summed up in the familiar disavowal, “I’m personally opposed, but…”

The hard facts — so runs this view — are against us. However, we might oppose it, abortion is a sad feature of modern life. Tolerance is the price we pay for living in a free, pluralistic society. For the Catholic politician to “impose” his moral views would be an act of theocratic arrogance, violating our democratic trust. The proper and prudent course it therefore to bring change by “persuasion, not coercion.” Absent a “consensus,” it is not the place of any politician to change our laws permitting abortion.

I want to be careful here not to caricature this position. Some very honorable people hold it, and it is not my purpose to challenge their motives. Yet, as some politicians advance this view it does seem an evasion, a finesse rather than an honest argument. But that, so far as I am concerned, is the secret of their own individual hearts. Here I mean only to challenge the argument on its intellectual grounds.

We can dispense easily with the charge of theocratic arrogance. That would certainly apply if we were trying to impose some uniquely Catholic stricture like church attendance or fast days on the general population. But the stricture to refrain from killing is not uniquely Catholic. And that, as a purely empirical assertion, is how nearly all people of all faiths at all times have regarded abortion — as killing. Just listen, for example, to Frank Sussman, the lawyer who represented Missouri abortion clinics in Webster.

“Neither side in this debate” — he said — “would ever disagree on the physiological facts. Both sides would agree as to when a heartbeat can first be detected. Both sides would agree as to when brain waves can first be detected. But when you try to place the emotional labels on what you call that collection of physiological facts, that is where people depart company.”

Or listen to former New York Mayor Ed Koch, a fellow Democrat: “I support Roe vs. Wade wholeheartedly,” he wrote in a column, “And I do it even while acknowledging to myself that at some point, perhaps after the first trimester, abortion becomes infanticide…”

Or, for that matter, just listen to President Clinton speaking last month [February, 1993] in Chillicothe, Ohio: “Very few Americans believe that all abortions all the time are all right. Almost all Americans believe that abortions should be illegal when the children can live outside the mother’s womb.”

By referring to the unborn as “children,” the President was not making a theological claim; he was just putting all the physiological facts together.

The same is true when we say abortion “kills.” We don’t say it in meanness. It’s a unique kind of killing, for the motive may not be homicidal; it may be done in ignorance of what is actually occurring. We reserve a special compassion for women who find themselves contemplating abortion. But as an objective fact, this is what abortion is, and so mankind has always regarded it. Science history, philosophy, religion, and common intuition all speak with one voice in asserting the humanity of the unborn. Only our current laws say otherwise.

So much for theocratic arrogance. That is the more obvious fallacy underlying the “personally opposed, but…” line of reasoning. I believe it arises from a deeper intellectual confusion. It confuses prudence with pragmatism, and mistakes power for authority.

Prudence vs. Pragmatism and Power vs. Authority

Prudence we all know to be a virtue. Classical thinkers rated it as the supreme political virtue. Roughly defined, it’s the ability to distinguish the desirable from the possible. It’s a sense of the good, joined with a practical knowledge of the means by which to accomplish the good. A world in which every child survives to take his first breath is desirable. But we know that such a world has never been. And prudence cautions us to never to expect such a world. Abortion is but one of many evils that, to one extent or another, is to be found at all times and places. Men can make good laws, but laws cannot make men good.

The point is that after facing up to such facts, the basic facts of our human condition, prudence does not fall silent. It is not an attitude of noble resignation; it is an active virtue. The voice that says, “Ah, well, there is no consensus, we must take the world as it is. There is nothing further to be done” — that is not the voice of prudence. It is the voice of expediency.

Prudence compromises — it doesn’t capitulate. It’s tolerant, but not timid. Prudence asks: “If there is no consensus, how do we form one? What means of reform are available to us? How, lawfully, can we change the law?”

And here is where the difference between power and authority come in. In the best of worlds, the law commands both. The law confers power on the rightful authority, and invests authority with power. The integrity of our laws rests on this continuity, a corpus juris reflecting the accumulated experience of our civilization. Laws are the conventional application of permanent principles. And if democratic government depends on any one central idea, it’s that raw power alone, laws that flout these permanent principles, cannot command our respect. Our obedience, yes. Our allegiance, no.

Alexander Hamilton put it this way: “The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of Divinity itself; and can never be erased or obscured by mortal power.” Even the more secular-minded Thomas Jefferson agreed: the “only firm basis” of freedom, he wrote, is “a conviction in the minds of people that their liberties are gifts of God.”

American History has had its dark moments, but only twice has this principle been radically betrayed. Only twice has mortal power, using the instrument of the law itself, sought to exclude an entire class of people from their most sacred rights.

One-hundred and thirty-six years ago, a human being was declared a piece of property, literally led off in chains as people of good conscience sat paralyzed by the ruling of the court. [The Dred Scott decision]

The other time was January 22, 1973. An entire class of human beings was excluded from the protection of the state, their fate declared a “private” matter. That “sunbeam” that Hamilton envisioned, the Creator’s signature on each new life, was deflected by human hands. No one has ever described what happened more concisely than Justice Byron White in his dissent. It was an act of “raw judicial power” — power stripped of all moral and constitutional authority.

Roe vs. Wade was not one more natural adaptation in our constitutional evolution. It was not like Brown vs. Board of Education, a refinement extending law and liberty to an entire class. [It was] just the opposite: It was an abrupt mutation, a defiance of all precedent, a disjuncture of law and authority. Where we used to think of law above politics, in Roe, law and politics become indistinguishable. How strange it is to hear abortion now defended in the name of “consensus.” Roe itself, the product of a contrived and fraudulent case, was a judicial decree overruling a consensus expressed in the laws of most states.

It arose not from the wisdom of the ages, or from the voice of the people, but from the ideology of the day and the will of a determined minority. It compels us to ignore the consensus of mankind about the treatment of the unborn. It commands us to disregard the clearest of Commandments. After 20 long years, the people of the United States have refused to heed the command.

Roe vs. Wade is a law we must observe, but never honor. In Hamilton’s phrase, it’s a piece of “parchment,” a musty record bearing raw coercive power and devoid of moral authority. It has done its harm, and will do much more. But those who say we must learn to live with it still don’t get it. Ultimately, Roe cannot survive alongside our enduring, unshakeable sense of justice. It is no more permanent than any other act of human arrogance. It is no more unchangeable that the laws which sent Dred Scott back to his master.

Where Do We Go From Here

This has been the generation of what Malcom Muggeridge called “the humane holocaust.” The loss can never be recovered. Indeed, it can’t even be calculated.

Not even the familiar statistic — 1.6 million a year — begins to express the enormity of it. One person’s life touches so many others. How can you measure the void left when so many people aren’t even permitted to live among us?

The best we can do is change what can be changed, and most importantly, stay the course.

And there is no need to wait for some political consensus to form. That consensus is here, and grows every time someone looks for the first time at a sonogram. It needs only leaders — prudent, patient leaders. It doesn’t need apologists to soothe us into inaction. It needs statesmen who will work for change — change here and now.

So we must ask ourselves, what must the role of a the pro-life public official be in 1993 in the face of the catastrophic human carnage of abortion? Let me be specific.

  • First, relentless, outspoken opposition to passage of the so-called Freedom of Choice Act.
  • Second, continuous effort to expand and enlarge the protection of human life in state and national laws and policies.
  • Third, a continuous drumbeat of public expression which makes the American people confront the facts about abortion in all of its evil.
  • Fourth, advocacy of a New American Compact in this country which seeks to involve all public and private institutions in a fight for policies and programs to offer women meaningful alternatives to abortion and to offer children and families the help they need to live decent, healthy and happy lives.
  • Fifth, political action which challenges both major parties and their candidates to protect human life and works for change in national elections.

The need for constancy, activism, and relentless effort cannot be overstated. In light of recent events, there is no doubt that this country faces a crisis of awesome dimensions.

National commentators want to treat this issue as settled. We can never let them get away with that. This issue will never die. It will never be “over.”

We live in a time of anarchy — when those who claim the right to choose deny pro-life advocates the right to speak. Our voices must be even more determined in response.

In sum, the role of the public official must be to lead — to stand up and say to the people of this country who believe in protecting human life, “Press On!”

This then, must be our clarion call, our call to arms, the keynote of this gathering: “Press On!”