Abortion: the never ending controversy.

The Casey decision, which pleased nobody, changed the terms of the abortion debate and the focus of state legislation.

In the year and a half since the U.S. Supreme Court's latest ruling on a major abortion case, Planned Parenthood of Southeastern Pennsylvania vs. Casey, the debate on abortion has grown no less heated, but it's no longer simply a matter of pro-life vs. pro-choice.

In the battle over abortion, the focus has changed from whether or not abortion will be allowed to what kinds of restrictions are permissible.

The Casey ruling pleased no one. After months of speculation, pro-life forces were surprised and disappointed that Roe vs. Wade hadn't been overturned and abortion outlawed; pro-choice supporters said Roe had been decimated.

In its opinion, the Court made it clear that Roe vs. Wade was still the law of the land, and that states did not have the power to ban abortion prior to viability. But the Court gave the states a stronger hand in imposing restrictions on access to abortion by upholding almost all of the limits of Pennsylvania's statute.

Whether or not one agrees with the Casey decision, it was part of a trend in recent rulings on abortion cases that have continued to support a woman's right to privacy under the 14th Amendment, but have given greater latitude to the states in limiting that right.

The Casey decision questioned any "undue burden" placed by state restrictions. The Pennsylvania statute required that a woman be given specific information so that her consent to an abortion would be informed; that she wait 24 hours after being given that information before the procedure could be performed; that if married, she notify her husband; and that if a minor, she obtain the informed consent of one parent.

The Court upheld the informed consent, waiting period and parental consent provisions, ruling that they did not place an undue burden on a woman seeking an abortion.

The husband notification provision was rejected as unconstitutional based largely on equal protection rather than on the right to privacy. To have upheld spousal notification requirements would have given husbands legal authority over their wives and "precluded women's full and independent legal status under the Constitution."

In the flurry of legislative activity since the Casey decision, several trends have become evident. For the most part, states have stopped trying to ban abortion, since such laws would be unconstitutional based on Casey. But there have been a multitude of bills introduced that support alternatives to abortion or call on Congress to reject the proposed Freedom of Choice Act, which would guarantee a woman's right to choose abortion. Though fewer in number, there have also been a significant number of resolutions asking Congress to enact the Freedom of Choice Act and support a woman's right to privacy in personal decisions.

The largest trend is to place limitations on abortion. Certain that limits that go no further than the Pennsylvania law will be constitutional, states have been quick to introduce bills requiring that information be provided before an abortion is performed and that waiting periods be imposed. Almost 100 bills dealing with informed consent and waiting periods were introduced during the 1992 and 1993 sessions. Laws passed in Nebraska, Michigan and Wisconsin.

More than 70 bills concerning parental consent and notice requirements for minors seeking abortions were introduced during the same period. Although many states had such laws before the Casey decision, not all were being enforced. Many states provide for judicial bypass, which allows a minor to petition the courts for permission for an abortion if she feels she cannot approach her parents or if parents are not able or willing to give their consent. Parental consent and notice requirements are likely to be adopted in more states since such provisions were ruled constitutional under Casey.

A third trend involves the use of tax money for abortion. Although public funding for low-income women was not part of the Pennsylvania law, most states had already prohibited use of state funds for abortion with limited exceptions. All states will pay for abortion if the life of the mother would be threatened by continuation of the pregnancy, but only 12 states cover the costs of abortion from assistance funds for most or all circumstances. Twenty states pay for abortion if the pregnancy is the result of rape or incest. Of those, 15 will also pay for an abortion if a fetal defect is likely to result in death. During the 1992 and 1993 sessions more than 60 funding bills were introduced, almost all of them to further limit the use of public money for abortion.

Despite the Supreme Court decision on what types of restrictions are permissible (informed consent, waiting periods and parental notice or consent) and which aren't (spousal notification), further litigation is almost certain.

Pro-life advocates will push for broader restrictions than those approved in Casey, but they will have to pass the "undue burden" test. For example, Pennsylvania's statute requires a 24-hour waiting period and was ruled constitutional. But would a 48-hour period be unduly burdensome and therefore unconstitutional? Is it possible a 48-hour wait would be acceptable in cities where clinics are readily available, and unacceptable in rural areas where extensive travel would be involved, requiring time and expense for staying over or a second trip?

The same questions of degree apply to informed consent. How much and what type of information - whether it is provided in verbal or written form and whether it is written by the state, interest groups or health professionals - may make a difference in whether an informed consent requirement could be considered unduly burdensome. Many of the bills introduced during the 1993 session detailed the nature of the information provided and who would publish it, opening the door for further litigation of informed consent requirements.

Pro-choice advocates have been active, too. A number of bills have been introduced protecting the right of choice.

Advocates have also taken on the issue of increased violence aimed at clinics and abortion providers, based on incidents that have troubled many pro-life, as well as pro-choice, supporters. Six states already had statutes on the books that protect health facilities, including those that perform abortions. California and Colorado passed laws during the 1993 session aimed at curbing violence at abortion clinics.

For the most part, the battle is likely to continue over the next few years with the same game plan: Abortion foes will seek to impose limits, rather than bans, and abortion supporters will argue that those limits are unduly burdensome.

But there are two new factors to consider: the impact of Ruth Bader Ginsburg's elevation to the Supreme Court and the likelihood that the "French abortion pill" RU-486 will become available in the United States in the next few years.

The Supreme Court has been sharply divided in its views on abortion over the last decade. The Casey decision was a 5-4 split. Then Justice Byron White, who dissented on Roe vs. Wade and supported a narrower interpretation of the liberties granted by the 14th Amendment, retired. His replacement by Justice Ginsburg, who indicated that both the right to privacy and the right to equal protection support choice in personal reproductive decisions, will affect the Court's treatment of future abortion cases, including those that will weigh the burden of further restrictions imposed by the states.

With a pro-choice president and a pro-life Congress lessening the likelihood of national action on abortion, the states will continue to be the major forum in the abortion debate.

The introduction of RU-486, delayed because its French manufacturer Roussel Uclaf did not want to enter the emotional battle over abortion in the United States or become the target of boycotts and demonstrations by abortion foes, will also have an effect.

RU-486 makes the abortion decision much more private. It can be prescribed by any physician, requires no invasive procedures and eliminates the need to go to an abortion clinic. That lessens the impact of one of the major anti-abortion weapons: clinic blockades and protests, which have been very successful in reducing the number of abortion providers over the last 10 years.

Though four states have passed bills supporting the use of RU-486 when it becomes available, pro-life forces have vowed to find ways to prevent it. Will states pass restrictions on its use and will such restrictions be "unduly burdensome" under the standards set by the Casey decision, especially given the changes in the composition of the Court?

Though the focus may have changed for the time being, the abortion debate is far from over. Approximately 300 abortion-related bills are introduced each year; litigation follows the passage of each significant law. Both sides promise not to rest until they win. But in this battle, it's hard to define "win."

A Retrospective of

Significant Cases

1973

Roe vs. Wade

In a landmark decision, the U.S. Supreme Court ruled that states have no compelling interest in regulating abortions during the first trimester of pregnancy. The Court held that "the right to privacy, whether it be founded in the 14th Amendment's concept of personal liberty and restrictions upon state action or in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

1983

City of Akron vs. Akron Center for

Reproductive Health 

The Supreme Court ruled that states cannot impose fixed waiting periods on women seeking abortions or require that they be given specific information regarding fetal development and alternatives to abortion. The ruling also struck down parental consent requirements for minors over age 15.

1989

Webster vs. Reproductive

Health Services 

The Supreme Court upheld a Missouri statute prohibiting the use of public facilities and employees to perform abortions or public funds to counsel women regarding abortion, and upheld fetal viability testing. The Court abandoned the use of trimesters in determining when abortion is permissible, referring for the first time to the state's "compelling interest" in protecting potential human life throughout pregnancy, a concept that had been rejected in Roe.

1990

Hodgson vs. Minnesota

and

Ohio vs. Akron Center for Reproductive Health

The Supreme Court upheld a Minnesota statute requiring that both parents be notified 48 hours before an abortion on a minor and an Ohio law requiring 24-hour notification of one parent. In both opinions, the Court departed from earlier references to abortion as a fundamental right, and instead, called it a "liberty interest."

1992

Planned Parenthood of Southeastern Pennsylvania

vs. Casey

Although reaffirming Roe vs. Wade as the law of the land, the Supreme Court upheld the constitutionality of restrictions on abortion, including mandatory waiting periods, informed consent, parental consent for minors seeking abortion and abortion reporting requirements. The only provision ruled unconstitutional was a requirement that a married woman inform her husband before obtaining an abortion.

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