The “Mystery of Life” in the Lower Courts: The Influence of the Mystery Passage on American Jurisprudence
The “Mystery of Life” in the Lower Courts: The Influence of the Mystery Passage on American Jurisprudence
Trent L. Pepper, 51 How. L.J. 335 (2008)
The “mystery passage” has been the subject of substantial controversy in the more than fifteen years since it was first articulated by the Supreme Court in Planned Parenthood of Southeastern Pennsylvania v. Casey. It has been praised for “bring[ing] the right to privacy into a more public, transcendent realm” and “recogniz[ing] a more public and potent right to dignity and respect,” and it has been dismissed as “an embarrassing muddle,” “faux philosophic argument,” and resembling “a bad freshman philosophy paper.” Although lauded by some for its “distinguished pedigree,” it also has been criticized for being grounded in “modish and untested philosophical notions and extreme libertarianism that would have left our Framers aghast.” The vigor of the debate over the mystery passage is not surprising, as the passage reflects a particular perspective on the nature of the human person and liberty.