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The Supreme Court Could Have Overturned Roe in 1992 – But it Blinked, Ken Starr Says

  • Michael Foust

    Michael Foust has covered the intersection of faith and news for 20 years. His stories have appeared in Baptist Press, Christianity Today, The Christian Post, the Leaf-Chroniclethe…

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  • 2021 Jun 04

An upcoming U.S. Supreme Court abortion case has the pro-life community anticipating a landmark victory under a newly aligned court, but it won’t be the first time pro-lifers have been in this situation.

In 1992, the Supreme Court took up another major abortion case challenging a series of Pennsylvania pro-life laws. Those restrictions included a 24-hour waiting period, a parental notification requirement for minors, and a requirement that a married woman notifies her husband before obtaining an abortion.

At the time, the pro-life community was hopeful that the Supreme Court would uphold the Pennsylvania laws and overturn the 1973 landmark Roe v. Wade decision that legalized abortion.

There was reason for optimism. The administration of George H.W. Bush was asking the court to strike down Roe. Additionally, the high court had two new Bush-nominated justices – Clarence Thomas and David Souter – who had replaced pro-Roe members of the court.

In fact, six of the nine members of the court had been nominated by the two Republican administrations (Bush and President Reagan). Both Bush and Reagan were pro-life.

Ken Starr, the solicitor general under Bush, argued the administration’s position before the court during oral arguments on April 22, 1992.

Starr told Christian Headlines he was hopeful after oral arguments.

“We thought we were in the ballpark,” Starr said, referencing the necessary five votes to win the case.

But two months after oral arguments, on June 29, the Supreme Court issued a 5-4 decision upholding Roe v. Wade, even though it also upheld the 24-hour waiting period and the parental notification requirement.

The four dissenting justices said they would have overturned Roe.

The decision is known as Planned Parenthood v. Casey.

“I continue to be convinced that the majority of the court at that time knew that Roe v. Wade had been wrongly decided – and that they would not … have voted as the court did in Roe v. Wade 20 years earlier,” Starr said. “But they blinked.”

Souter, a Bush nominee, joined the majority opinion in upholding Roe. Thomas, a Bush nominee, voted with the minority.

“Planned Parenthood vs. Casey represented what turned out to be a constitutional watershed – and not for the better, because now the court wrestles with and struggles, Hamlet-like, with any number of constitutional issues,” Starr said.

Starr recently released a book about religious liberty and precedent. It’s titled Religious Liberty in Crisis: Exercising Your Faith in an Age of Uncertainty.

In the book, Starr criticized the 1992 court, saying it should have overturned Roe, just as the high court’s Brown v. Board of Education ruling overturned Plessy v. Ferguson.

He called the logic in Planned Parenthood v. Casey a “constitutional judicial pretzel.”

“Have the strength and courage of your own convictions to say, ‘We were wrong,’” Starr said.

This fall – with three Trump-nominated justices seated – the high court will consider the constitutionality of a 2018 Mississippi law that prohibits abortion after the 15th week of a woman’s term. The law includes exceptions for medical emergencies and fetal abnormality. The justices said they would limit the scope of the case to one question: Are all laws restricting pre-viability abortions unconstitutional?

If the law is upheld, it would be the biggest legal victory ever for the pro-life community.

Pro-lifers, though, hope it is not a repeat of history from three decades ago.

Photo courtesy: ©Getty Images/Win McNamee/Staff


Michael Foust has covered the intersection of faith and news for 20 years. His stories have appeared in Baptist Press, Christianity Today, The Christian Post, the Leaf-Chroniclethe Toronto Star and the Knoxville News-Sentinel.

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