Back to the people's court

"Liberty finds no refuge in a jurisprudence of doubt." That line opened the opinion of Justices O'Connor, Kennedy, and Souter in the 1992 case of Planned Parenthood v. Casey, a decision that gutted the absurd reasoning of Roe v. Wade but left undisturbed a woman's right to abortion in almost all circumstances. Justice Kennedy's vote surprised most observers, as he had been thought a proponent of overturning Roe completely.

Eight years later, in the case that struck down Nebraska's law restricting the practice of partial-birth abortion, Justice Kennedy was himself a victim of the jurisprudence of doubt, sputtering that the five-justice majority, which again included Justice O'Connor, had retreated on its commitment in 1992 to allow the states their constitutional role in regulating abortion.

"The legislation is well within the State's competence to enact," Justice Kennedy complained. "The political processes of the State are not to be foreclosed from enacting laws to promote the life of the unborn and to ensure respect for all human life and its potential. The State's constitutional authority is a vital means for citizens to address these grave and serious issues, as they must if we are to progress in knowledge and understanding and in the attainment of some degree of consensus."

Justice Kennedy fell for the head-fake in 1992 and may perhaps do so again, but with the pending confirmation of Samuel Alito to the Supreme Court there is at least a glimmer of hope: Maybe the court will finally acknowledge that in overreaching first with Roe and then with Casey it achieved nothing except the bitter division of the country. So long as the majority of nine unelected judges makes the law concerning abortion in the United States, we will have a jurisprudence of doubt.

Only when the Supreme Court hands legislative decisions back to legislatures will that doubt finally end, and a political process both honest and full-throated begin.