The recent spate of anti-abortion regulations in states across the country has made me pessimistic about the future of reproductive rights, but Irin Carmon is correct to note that the legal picture is not entirely bleak. The problem with landmark abortion-rights case Casey v. Planned Parenthood is that the "undue burden" standard it applied to restrictions on abortion is that it's only as bad or good as the judge applying it. Precisely because the ruling says nothing about whether innovative abortion regulations are constitutional or not, in the hands of a good judge, the Casey precedent can be used against regulatory regimes intended to deny women access to safe abortions. As Carmon explains, this is what happened with South Dakota's 72-hour waiting period, which the district court correctly ruled unconstitutional.
Some progressives have argued that it doesn't matter if Roe v. Wade is overruled because Casey has essentially rolled it back anyway. There's some truth to that critique, but it goes too far. It's true that some states have severely restricted access to abortion based on Casey-approved regulations, and it's impossible to imagine the current Supreme Court finding any abortion regulation short of an outright ban unconstitutional. But not only is the prohibition on pre-viability bans important; lower courts and (let's hope) future Supreme Courts can use Casey to "stop the states from trying to ban abortion through the back door." The protections offered by Casey aren't as strong as those offered by Roe, but they're certainly better than nothing.
