Looking back 34 years to Thornburgh v. American College of Obstetricians and Gynecologists

By Dave Andrusko

 Over at “Bench Memos,” Ed Whelan writes a provocative column he calls, “This Day in Liberal Judicial Activism.” And because there is no finer (or worse) example of judicial activism than the Supreme Court’s forays into abortion jurisprudence, Ed writes a fair number of columns about the High Court’s decisions.

For today, June 11, Ed zones in on the 1986 Thornburgh decision. He briefly describes the major holdings thusly.

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 decision was so over-the-top that (as Whelan writes) it “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.)

His allusion, of course, is to the 1992 Planned Parenthood of Southeastern Pa. v. Casey (“Casey”) decision, which, while “reaffirming “Roe v. Wade, untightened the noose. 

In that self-pitying/self-aggrandizing/woe-is-me voice he adopted in his later years on the Court, Justice Blackmun (Roe’s author) intoned, “I fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light. He added, “I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today.” 

Old Horatio at the Gate wasn’t going to be at his post forever.

This was, of course, a ridiculous overstatement, alas. States were freer to pass protective laws, but with clear limitations. However, it is the genius of the pro-life movement that we have systematically probed for weaknesses in the triad of Roe/Casey/Carhart [the latter being the 2007 decision which upheld the federal ban on the hideous partial-birth abortion technique].