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Women’s suffragists at their organization’s headquarters in Philadelphia, 1917. Credit: Harris and Ewing Collection/Library of Congress

Casey’s “Reliance Standard” and the Risk of Relying on Life

Issue One

Caitlin W. Jolly

The landmark 1992 case Planned Parenthood v. Casey enshrined the notion that women’s equal participation in the life of the nation depends essentially on their access to abortion. The plurality opinion articulated this dependence in terms of broad social reliance on the holding of Roe v. Wade, which affirmed a constitutional right to procure an abortion until the baby becomes viable. The idea, however, that a woman’s full participation in society is safeguarded by the capacity to end her pregnancy in order to pursue her own vision of herself and her place in society prescribes an understanding of participation that eclipses its own foundation—namely, the created participation in God’s being that he freely gives to each of us as our own act of existing. In contrast, openness to life, and especially to the risk of receiving a child, does not block participation but instead intensifies the original participation that is the form of every life. By educating us to participation in life as something first gratuitously given, and by offering us the chance to ratify our own participation in existence, every child confirms and intensifies the life of those who receive it.

Casey’s “reliance standard” rests upon a significant revision of the principle’s traditional application. Generally used in favor of stare decisis, “the inquiry into reliance counts the cost of a rule’s repudiation as it would fall on those who have relied reasonably on the rule’s continued application.”[1] Such reliance typically concerns economic interest, as in matters of property or contract law. While this economic element remains central in Casey, its plurality opinion introduces shifts in the meaning of reliance, both expanding it to include a wide cultural reliance on legal precedent and applying it to future actions rather than decisions already made. Thus, the text argues, it is not enough to measure people’s reliance on abortion only in terms of “specific instances of sexual activity,” for such reliance could be effectively eliminated by choices regarding specific acts of intercourse and reproductive planning. Indeed, to thus limit our understanding of reliance on abortion would be to refuse the fact that for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.[2]

When the original endowment that is the creature itself is forgotten and thus “taken for granted,” the human person is valued primarily in terms of his or her achievements.

Rather than specify actors and actions potentially affected by a change in law, Casey broadens the concept of reliance to present abortion access as a salutary condition of human sexuality, the determination of personal identity, and the relation between individual and community. The opinion thus amplifies abortion’s significance and does so in a way that not only protects past reliance interests but encourages future reliance on its availability.[3] Though speaking of cultural phenomena taking place in the two decades before its composition, the text implicitly argues that abortion rights are good because they promote women’s future participation in economic and social life. The cost to women of losing abortion access is counted with regard not so much to pregnancies already achieved but to each woman’s ability to organize her intimate relationships and activities in the world with the assurance that she could abort a pregnancy were one to occur. Casey therefore argues for abortion as a good assuring each woman that, whatever her future choices and behavior, a child will not become an obstacle to her plans.

Dobbs v. Jackson Women’s Health Organization (2022) rejected Casey’s expansion of the reliance standard, holding that the court lacks both “authority” and “expertise” to determine the effects of the right to abortion on women’s lives.[4] It remains, however, that two such beliefs central to the reasoning in Casey still determine the popular understanding of what it means for a woman to flourish. These are the beliefs that a baby is a burden and that it is burdensome principally as a barrier to participation, where participation is conceived as a woman’s ability to profit from economic and social activity extending beyond the activities of homemaking and childrearing.

The prevalence of these ideas is well-attested by amici curiae in the Dobbs case. The brief filed by the National Women’s Law Center argues, for example, that “existing laws promoting gender equality” do not “remove the substantial economic, educational, and professional burdens of being forced to continue a pregnancy.”[5] The amici also reject the claim that “people forced to carry a pregnancy to term will not face barriers to equal participation in social and economic life.”[6] The brief on behalf of women athletes makes these claims more concrete: women rely on abortion to avoid “the physical tolls of forced pregnancy and childbirth” that “would undermine athletes’ ability to actualize their full human potential.”[7] The success of women’s sports depends upon “the right to access safe and legal abortion care, and the ability of ‘the woman to retain the ultimate control over her destiny and her body.’”[8] Without abortion, women would also be deprived of “collateral benefits . . . , including greater educational success, career advancement, enhanced self-esteem, and improved health.”[9] What is presupposed in such views is that there is a mutual exclusivity between a woman’s flourishing, on the one hand, and what is out of her control, on the other. It is only when one retains control over one’s destiny, including the definition of “one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” that one can fully participate in what it means to be human.[10]

It would be naïve to deny the hardships and sacrifices that women—especially those already in a state of social and economic disadvantage—face on account of motherhood. In this regard, the concern voiced by many pro-abortion parties for the disproportionate effect of becoming a mother on women lacking resources such as money for childcare, completed educational degrees, or a supportive spouse and extended family is legitimate. Yet without denying our responsibility to mothers in this regard, it is essential to note that the idea of participation espoused by Casey’s reliance standard comes too late: it overlooks the fact that our very existence is already a participation, and that this participation in being—by which we exist in and as ourselves and in communion with everything else—is not the product of our own actions but the universal condition of any personal achievement or perfection.

Openness to children, with all its risks and sacrifices, is one of the clearest manifestations and intensifications of our original participation in being.

Another way of saying this is that the foundation and paradigmatic form of our participation in anything, including social and economic life, is the reception of our being from the God who “is” absolutely. “To be” (esse) for the finite being is to participate in something given—namely, being. What this means regarding a woman’s reception of a child is that she first has to receive herself, that is, accept that her very being-herself is something received from another. To the degree that she cannot ratify and complete this gift in an ever-deepening reception of herself, she will find the reception of another more challenging, because it will seem extrinsic to her own project of existing and thus to the way she experiences her profound desire to be and thrive. If a woman cannot affirm her own existence as the giving and receiving of another, her being will seem an original loneliness to be justified through subsequent participation in, for example, intimate relationships and professional activities.

In his little gem, The Gift: Creation, late philosopher Kenneth Schmitz fills out the picture of what it means for a finite being to receive herself ex nihilo: out of nothing, or, more positively, as pure relation to God.[11] A central point is that the radical dependency on God that creaturehood entails is not oppressive with regard to the creature’s freedom and perfection. On the contrary, because perfection presupposes an existing subject that can become perfect, the gift of creation precedes and generates any claim of the creature to its own happiness.[12] When the original endowment that is the creature itself is forgotten and thus “taken for granted”—considered as a given rather than a gift, as a mere starting point for subsequent action, in which alone meaning is to be found—the human person is valued primarily in terms of his or her achievements. Schmitz associates such emphasis on human agency with a technological society, and it is not a stretch to see how exaggerated esteem for human action fosters reliance on the technologies of contraception and abortion in the search for one’s own meaning and actualization.[13] Divorcing participation from the gift of being and associating it solely with certain freely chosen actions following upon this gift reflects a forgetfulness of the fullness we have all received simply in existing.

Schmitz also helps us appreciate that the very essence of gift radically challenges the claim that absolute control over one’s destiny is essential to happiness. Every gift is a gift insofar as it is gratuitous, that is, given and received freely rather than under some obligation or necessity. The gratuity that delights us when someone sends flowers “for no reason” thus also characterizes the gift of personal being, which, like all gifts, includes not only surprise but also risk. Schmitz observes: “The term gift is rooted in a domain of significance that is charged with . . . risk, vulnerability and surprise.”[14] To the extent that something is given when it did not have to be, its unexpected arrival asks that the one surprised by its presence make room to receive it. However welcome the gift, its free reception is thus not a safe affair: it means vulnerability in openness “to the intention of the giver and to the significance of the gift.”[15] When we receive a gift, then, we also receive a purpose for it and for ourselves, a meaning that we did not originate. The gift stretches us beyond what we had foreseen and beyond what lies exclusively under our control. While at times uncomfortable, the reception of what is not simply our own is essential to the exercise of human freedom for the sake of happiness. For without the risk of received meaning, every good will eventually fall under the determination of the willing subject. Only a good that, coming from another, transcends subjective determination and control will liberate the human person from the confines of her own temporal circumstances and from the arbitrariness of choosing both anything and nothing. This happens profoundly when in receiving both herself and her child as gifts, a woman is placed, to her surprise, on a horizon of meaning that frees her for an end—a good—greater than what she would have prescribed for herself.

Recognizing this, it could still seem that acknowledging the gratuity of every true gift only exacerbates the problem of freely receiving it. Many women seek abortions because they do not feel free in regard to the presence of the child within them. This suffering, whether experienced in pregnancy or later as one faces a child’s daily demands, merits sincere attention. It also reveals all the more our need for children, who incessantly ask of us the generosity that is our life-blood. Even when we are not yet capable of receiving them with gratitude, children by their very presence reestablish this generosity as the criterion for human success. And to the extent that we can receive them freely, the gratuity of their presence spreads to all other areas of personal and family life. I have found, for example, that a position of openness to life brings with it the assurance that, as subject to the endowments of another, I am not solely responsible for the shape of my family, the arc of my career, or my relationship to my husband and the demands I make on him as a partner in the household. A certain recklessness in abandonment to God’s generosity thus affords me greater freedom and confidence in his fidelity to the gift and its goodness. Children also provide a path toward true leisure. All parents know the frustration of being pulled away from accomplishing one’s agenda. Yet when digging in the backyard instead of writing lectures, I have no choice, as it were, but to participate gratuitously in the task my toddler gives me. I am mercifully required to encounter the world in a way that transcends my immediate purposes, and in this, I sometimes discover anew the happiness of delighting in something together with my son and of knowing his delight in me despite my many imperfections as a mother. Children want to be with us, and in this desire they invite us to participation.

Though mistaken in its approval of abortion, Casey rightly upholds this fundamentally good desire for our own perfection through participation in a common life. Tragically, this longing is often wounded by some experience of a break in the dynamic of generosity that structures being and sustains human life. Abortion repeats and compounds this interruption of being, whereas the free reception of a child reopens those to whom it is given to the plenitude of being as gift. Openness to life is, then, not a merely moral obligation but something on which each of us relies radically for the sake of our own lives. Receiving a child undoubtedly requires an at least implicit trust in the goodness of an intention and power greater than our own—a plan for our lives, written by another, that is ultimately a plan for our good. Yet it is by welcoming the child that we are educated to this trust anew, above all because in being given a child, we are given life and released from the burden of having to build it up from nothing. The child is thus a living sign of the reality that each one’s existence is already a participation in the perfection that being is. Openness to children, with all its risks and sacrifices, is therefore one of the clearest manifestations and intensifications of our original participation in being.

All of us, therefore, rely most truly not on abortion access but on the gift of children, because they are sacraments of the gratuity, risk, and plenitude that found true participation in human life. Olympic gold-medalist Chrissy Perham wrote as amica to the Dobbs court: “Women know what’s best for our own bodies and lives, and our autonomy needs to be respected.”[16] Yet we often do not know what is best for our lives, and we need the good to come from beyond our current capacity to evaluate what is best. Only the reception of a transcendent good allows us to grow and to take part in a reality that is truly common, like the life of a nation. Realism thus demands accepting that our lives are inevitably shaped by surprises, actors other than ourselves, and dependency. The child is, in this regard, prophet and guardian. His presence will perhaps necessitate the sacrifice of money, social visibility, career plans, physical health, and control. Yet it brings greater goods. The child recapitulates the gift of the mother to herself, affirming her own existence and inviting her to receive it more deeply. By ratifying the generosity made personally concrete in the child, she participates retrospectively in her own creation and becomes, in generosity, more like the Giver of all life. The child also brings meaning that can be sourced only in gratuitous gift. He therefore bestows freedom to relish the contingent, particular, and small, along with the freedom of depending on another instead of bearing absolute responsibility for the destiny of oneself and others. In her suffering, finally, a mother gains the love of a child and the wealth of being able to give the very gift of life to another. She thus participates essentially in the economy of human life by allowing others to do the same.

[1] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 855 (1992).

[2] Casey, 505 U.S. at 856.

[3] Bradley Aron Cooper, “The Definition of ‘Person’: Applying the Casey Decision to Roe v. Wade,” Regent University Law Review 19 (2006): 235–50, at 245–46.

[4] Dobbs, 597 U. S. at 65.

[5] Brief of Amici Curiae National Women’s Law Center and 72 Additional Organizations Committed to Gender Equality in Support of Respondents, p. 20, Dobbs, 597 U. S. 1.

[6] Ibid., p. 4. b.

[7] Brief of Over 500 Women Athletes, the Women’s National Basketball Players Association, the National Women’s Soccer League Players Association, and Athletes for Impact Who Have Exercised, Relied on, or Support the Constitutional Right to Abortion as Amici Curiae in Support of Respondents, p. 4, Dobbs, 597 U. S. 1.

[8] Ibid., p. 3.

[9] Ibid., p. 4.

[10] Casey, 505 U.S. at 851.

[11] Kenneth L. Schmitz, The Gift: Creation (Milwaukee: Marquette University Press, 1982); see also Thomas Aquinas, Summa theologiae, I, q. 45, a. 3.

[12] Schmitz, The Gift: Creation, 31–34, 73–76. “Nothing is due to anyone, except on account of something already given him gratuitously by God.” Aquinas, Summa theologiae, I, q. 25, a. 3, ad 3 in Summa theologica: Complete English Edition in Five Volumes, vol. 1, trans. Fathers of the English Dominican Province (Notre Dame, IN: Christian Classics, 1981), 138.

[13] Schmitz, The Gift: Creation, 34–44, 63–87.

[14] Ibid., 44.

[15] Ibid., 48–49.

[16] Brief of Women Athletes, p. 5.

Caitlin Jolly is a wife, mother of three, and Visiting Assistant Professor of Philosophy at St. Patrick’s Seminary and University in Menlo Park, CA.

Posted on June 23, 2023

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