The Source of Our Abortion Woes

From January to March, state legislatures passed 15 laws restricting abortion rights and introduced more than 900 others. Viewed collectively, this legislation would appear to be at odds with the Supreme Court's recognition in Roe v. Wade in 1973 that women have a fundamental right to choose to have an abortion. "Opponents and supporters of abortion," concludes Slate's Dahlia Lithwick, "appear to have taken the position that Roe v. Wade is no longer the law of the land." Indeed, many of the proposed laws Lithwick details directly contradict Roe, including laws that would ban pre-viability abortions. In an even more direct attack on Roe, writes Kate Sheppard of Mother Jones, a Louisiana state legislator has introduced a bill that would ban virtually all abortions.

While some elements of the anti-abortion trend fly in the face of the Supreme Court's holdings on abortion, the preponderance of them are actually consistent with the 1992 Planned Parenthood v. Casey decision. Casey was a challenge to Pennsylvania state restrictions on abortion and, at the time, the strongest challenge to Roe. In the Casey decision, the court upheld Roe but changed the precedent in two important ways: It made viability the point at which the states could prohibit abortion, and it allowed restrictions on abortion rights as long as they didn't place an undue burden on the mother.

In this, the Court invited the blizzard of anti-abortion regulations that make it difficult, if not impossible, for many women to obtain abortions today. Casey is remembered because the Court declined to overrule Roe, but in some respects, it was really a victory for people who want the state and federal governments to restrict abortion access.

That advocates of reproductive freedom generally see Casey as a victory is understandable and not entirely wrong. The Pennsylvania law that Casey challenged bundled a number of abortion regulations. It required doctors to inform women of the health risks of abortions and obtain informed consent. It also instituted a 24-hour waiting period, required women to notify their spouses, and required minors to get consent from their parents before an abortion. The law also imposed reporting requirements on abortion providers. The state, in arguing for the law, wanted Roe overturned outright. As the case was being argued, it appeared that the Republican-dominated Court had the votes to overrule Roe. Among the justices at the time were two original dissenters in Roe who never wavered (William Rehnquist and Byron White), an even more fervent critic of Roe (Antonin Scalia), and a recent Republican appointee who had joined a Rehnquist opinion that was hostile to Roe (Anthony Kennedy). With Clarence Thomas, who was accurately perceived as critical of reproductive rights, replacing the liberal icon Thurgood Marshall, both pro- and anti-abortion-rights litigators assumed that the Supreme Court would use the case to overrule Roe.

That's not what happened. Kennedy ultimately joined with Justices Sandra Day O'Connor and David Souter to write a plurality opinion proclaiming that "the essential holding of Roe v. Wade should be retained and once again reaffirmed." This was, at the time, a welcome surprise to abortion-rights advocates, for whom a decision that continued to prevent states from banning pre-viability abortions was preferable to the alternative of overruling Roe altogether.

But the victory came at a steep price. Casey, as O'Connor had long advocated, replaced Roe's clear "trimester framework" with the opaque "undue burden" standard. That is, an abortion regulation was now unconstitutional if it unduly burdened a woman's fundamental right to choose, and the Court held that all but the spousal notification requirement were not so burdensome as to curb rights. In theory, this subjective formulation could provide a fairly robust protection of reproductive freedom. The way the Casey plurality actually applied the standard, however, all but guaranteed that it would not. The Pennsylvania law is now a model for the proliferation of anti-abortion legislation that has followed in its wake.

Particularly problematic in Casey was the plurality's decision to join the anti-Roe dissenters in upholding a 24-hour waiting period for women who wish to obtain an abortion. Waiting periods would seem to be the definition of an undue burden in at least two respects. First, with the justices' assumption that women who choose to obtain an abortion may be acting impulsively or irrationally, the waiting period, like the spousal-notification provision, is inconsistent with the Court's decisions protecting gender equality. Second, waiting periods place a particular burden on poor and rural women, for whom an additional trip to an abortion provider can be prohibitively costly or time-consuming, while urban women with flexible job schedules may have easier access.

Even some of the current legislation that seems to contradict Casey has been enacted with the tacit invitation of the Court. One reason that O'Connor wanted to replace the trimester framework of Roe is that it was based on the concept of viability, which was shifting as technology pushed the point of viability earlier. The effects of technology have, in fact, been greatly exaggerated, and the Roe framework would still be entirely workable today. But opponents of abortion rights have seized on O'Connor's arguments, and attempts to ban abortions after the 20th week of pregnancy reflect her criticisms of Roe.

None of this is to say that there isn't a major difference between the Casey regime and overruling Roe entirely. The amount of anti-abortion activity in state legislatures makes it clear that a significant number of states would ban abortion outright should Casey be overturned, and there remains an important distinction between having too few legal abortion providers and having none at all. But many of the proposed and enacted state regulations on abortion are all too consistent with the new framework established by the Court in 1992. And as long as Casey remains law, abortion-rights advocates will have to hope that more justices are appointed who are at least willing to take the undue-burden standard seriously and give state regulations the scrutiny that a real commitment to women's fundamental reproductive rights demands.

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