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Casey and the resuscitation of Roe v. Wade.

Despite pro-choice cries that Roe v. Wade[1] is dead, the Supreme Court decision in Casey v. Planned Parenthood Association of Southeastern Pennsylvania[2] is a great victory for procreative liberty. By a 5-4 vote the Court reaf-firmed the basic principle of Roe v. Wade: a woman has a right to terminate pregnancy up until viability, and thereafter when necessary to protect her life or health.

The decision does allow states greater leeway to counsel pregnant women about alternatives to abortion and the fetus's anatomical stage of development, and upholds a requirement that they wait twenty-four hours after receiving this information before having the abortion. For women who have to travel long distances to an abortion provider, a twenty-four hour waiting period may entail an overnight stay, extra expense, childcare, and employment problems. But it is not clear how many states will enact such restrictions, or what the overall burden on women will be. It surely is less of a burden than if Roe had been reversed and ten to fifteen states had outlawed most abortions.

The Casey decision has thus resuscitated a woman's right to choose abortion from the terminal illness it appeared to have suffered after Webster v. Planned Parenthood of Missouri.[3] Indeed, that right has been restored to renewed vigor, not merely resuscitated to prolong an inevitable dying process. True, the patient has been somewhat scarred by the ordeal, because the old trimester system is gone, but the right is strong and vibrant nevertheless.

This result is all the more surprising because both Justices O'Connor and Kennedy reached it by changing earlier expressed views about the compelling nature of prenatal life throughout pregnancy.[4] Their turnaround reflects how deeply the right to abortion resonates in the public psyche.

Issues in Casey

Casey did not involve a state law that challenged the basic right to abortion recognized in Roe v. Wade, but rather a law that chipped away at ancillary aspects of the abortion right. Previous post-Roe decisions had clearly held some of those provisions to be unconstitutional. The fear was that if the Court now upheld those provisions, it would signal the imminent death of Roe, with the coup de grace to be delivered by cases from Guam, Louisiana, or Utah waiting in the wings of lower federal courts for resolution.

The Pennsylvania law at issue in Casey regulated abortion by requiring that physicians provide women with information about fetal development and alternatives to abortion such as adoption and child support. The woman receiving this information must wait twenty-four hours before having the abortion. It also required that married women sign a statement that they notified their spouse, subject to certain exceptions, before having an abortion. A parental consent and a recordkeeping provision were also challenged, though in light of previous cases they seemed less significant. All of the provisions were subject to exceptions in the case of medical emergency.

Under Roe and its progeny, it was clear that everything except possibly the recordkeeping and parental consent with judicial bypass provisions would be found unconstitutional.

From views expressed in Webster and other cases, it was widely expected that a majority of the Court would uphold all provisions, with the possible exception of spousal notification. Many persons also expected Justices Souter and Thomas as well as Justices Kennedy and O'Connor to signal their disapproval of the essence of Roe, thus opening the door to more restrictive abortion laws in many states and further politicizing abortion in state and national elections. The result would be great pressure on Congress to pass the federal Freedom of Choice Act, which would prevent the states from enacting laws that conflicted with the holding in Roe v. Wade. The expected veto by President Bush and failure to override it would further complicate presidential politics in an election year.

The Court, however, due to the emergence of a solid three-vote center of O'Connor, Kennedy, and Souter, surprised almost everyone and left pro-life forces reeling. The Reagan-Bush appointment of five Justices had not succeeded in overruling Roe, despite these administrations' studied efforts to accomplish that result. Ironically, the pro-choice forces have not been celebrating as wildly as one might have expected. For example, two days after the Casey decision was announced, Planned Parenthood of America took out a full-page ad in the New York Times stating, "Roe v. Wade is Dead," and many pro-choice groups wailed about the threat of mandatory counselling and twenty-four-hour waiting periods. In fact, their biggest problem may be that Casey's unexpected reaffirmation of Roe interferes with pro-choice fundraising and political agendas, including efforts to enact the federal Freedom of Choice Act. However, Casey is a great victory for choice in abortion. The Court has ringingly reaffirmed the essence of Roe at a time when most people thought that right was dead.

Reaching the Result in Casey

The Court accomplished this startling result by reaffirming its authority to define fundamental unenumerated rights through "reasoned judgement" in interpreting the liberty clause of the Fourteenth Amendment. Recognizing that basic rights of "liberty"--the joint opinion never mentions "privacy"--are not confined to those rights mentioned in the Bill of Rights nor those specifically recognized by past traditions, it drew upon past cases recognizing rights to bodily integrity and "a person's most basic decisions about family and parenthood." If past decisions protect personal decisions "relating to marriage, procreation, contraception, family relationships, childbearing and education," then a woman must also have a basic right to terminate pregnancy, because it is a central aspect of that protected sphere of decisionmaking. Because nothing had occurred since Roe to cast doubt on the validity of these underlying precedents, the principle of stare decisis and respect for the Court's legitimacy required adherence to the basic right recognized in Roe.

Having reaffirmed the basic liberty right to terminate pregnancy established in Roe, the Court also reaffirmed that the state's otherwise "important and legitimate interest in potential life" did not outweigh this right until viability at roughly the twenty-fourth week of pregnancy. As in Roe, it merely restated the meaning of viability to justify this conclusion--"a realistic possibility of maintaining and nourishing a life outside the womb." However, the Court indirectly addressed the issue of fetal status in explaining why personal liberty must include the decision to abort. Prior to viability one's assessment of the priority to be granted fetal status was a matter of

the right to define one's own concept or existence, of meaning of the universe, and of the mystery of human life. The destiny of the woman must be shaped to a large extent on her own conception of her own spiritual imperatives and her place in society.

This reasoning is important, because it resituates the basic right to abortion in the Court's long tradition of substantive due-process decision-making, and answers those academic critics of Roe who argued that the decision was made up of whole cloth, a deviation from the strong current of past precedent.[5] Indeed, the dissenting justices (Chief Justice Rehnquist and Justices White, Scalia, and Thomas) did not challenge the line of precedent on which the Court relied, but simply asserted that it does not extend to ending pregnancy, either because most states outlawed abortion at the time of enactment of the Fourteenth Amendment or because abortion is a different claim because it destroys fetuses. However, the dissenters gave no analysis of why concerns about prenatal life at any stage of fetal development should outweigh such a basic decision, other than to say that the right is not basic, and therefore any legitimate or rational state interest, such as protecting potential life, sufficed to restrict abortion.

The Casey Court did make one significant change in Roe that has been the focus of controversy and debate: it rejected Roe's trimester framework for measuring abortion regulations. Finding that this rigid framework did not sufficiently recognize the state's legitimate interests in potential life and maternal health that even Roe had admitted existed throughout pregnancy, it found that state laws, such as the Pennsylvania statute before the Court, which ensure that the abortion decision is "thoughtful and informed" are valid if they do not impose an "undue burden" or "substantial obstacle" on access to abortion.

Although some persons will argue that this test is a major deviation from the compelling state interest standard that Roe applied to state laws affecting abortion, this standard can be analyzed as a further refinement of that test. If state regulations serve legitimate state concerns in how abortions are provided but do not substantially affect access to abortion, they are not an "undue burden" and should be acceptable. As long as the core interest in terminating an unwanted pregnancy is protected, ancillary restrictions that serve valid state interests but only marginally increase the costs or burdens of abortion are not "undue" and should be permitted.

Of course, the undue burden test is open to discretionary application, and allows states to impose some restrictions that could not be justified under the strict scrutiny standard of Roe. Although pro-choice activists discern a major threat to procreative choice in this test, by definition the restrictions permitted under this test cannot be "substantial obstacles" or "unduly" burdensome, or they will be struck down. The impact of this test will ultimately depend on how courts view the burdens created by particular regulations.

The Supreme Court found that physician disclosure and twenty-four-hour waiting period provisions, previously struck down under Roe's strict scrutiny approach, did not create a substantial barrier to abortion and thus were upheld. It viewed these provisions as merely assuring that women contemplating abortion were aware of "philosophic and social arguments" in favor of continuing pregnancy and of the "procedures and institutions" concerning alternatives such as adoption or child support if the woman chose to raise the child herself. The record contained no evidence that a twenty-four-hour waiting period would so increase the burdens and costs of travel to clinics that it constituted an "undue burden" on the right to have an abortion. However, the Court left open the possibility that actual experience might show otherwise, in which case a challenge to those provisions could later be entertained. At the same time, the Court struck down the spousal notification provision, because of much clearer evidence that informing abusive and controlling spouses of a desire to terminate pregnancy would effectively prevent many women from obtaining abortions.

Casey's Effect on Abortion Law

Casey's resuscitation of Roe v. Wade does alter the landscape of abortion legislation in some significant ways. At a minimum the undue burden test will permit states to enact informed consent and waiting periods along the lines of the Pennsylvania law upheld in Casey. An important question will be whether states may increase the waiting period beyond twenty-four hours, as many European countries do. The validity of longer waiting periods will turn on whether such a period of reflection actually aids an informed decision or is merely obstructionist, and whether a record of substantial obstacle to obtaining an abortion can be established. Another question is whether the undue burden test will permit previously invalidated restrictions, such as that all second trimester abortions occur in hospitals. Because Justice O'Connor voted in favor of such a regulation in the 1983 Akron case, a majority of the Court might now find that such additional restrictions do not constitute an undue burden on access to abortion. Bitter battles are likely to continue in state legislatures as these issues are thrashed out. Unless the federal Freedom of Choice Act is passed, it is likely that ten to twenty states may pass such regulations.

Although pro-choice activists would decry such a result, many persons would find the Casey system of access to abortion with some regulation a desirable compromise. Astute commentators like Mary Ann Glendon have long pointed out that the United States has the most liberal abortion system in the world, one that is unnecessarily politicized because constitutionalizing the issue has removed almost all ability for compromise by either side. If the federal Freedom of Choice Act is defeated, Casey will open the door to more compromises in procedures for obtaining abortion and could bring the American system much closer to the European system for obtaining abortion, at least in those states that enact counselling and waiting periods.

As long as Roe-Casey survives, however, important differences from the European mode will remain, with continued politicization likely. Abortions later than the first trimester will still be possible, which is less often the case in Europe. Nor will there be a requirement that a woman show that abortion is necessary to prevent severe distress, as the recently enacted German law requires. Under Roe-Casey no check on her reasons is permitted--her desire to end pregnancy for any reason is enough. Finally, consent and waiting periods will have a much greater impact on American than on European women. The paucity of abortion providers and the need to travel long distances to obtain an abortion is less of a problem in Europe than it is in many American states.

Finally, an important question that Roe-Casey leaves unresolved is whether Roussel Uclaf, the French company holding the patent to the contragestive drug RU 486, will find that enough of a consensus about the acceptability of abortion now exists in the United States to satisfy its self-imposed conditions for release of the drug for premarketing testing. A reversal of Roe and the enactment of abortion restrictions in several states would have clearly kept the drug out of the United States for many years. Now that Roe is reaffirmed and abortion will remain legal for the foreseeable future, Roussel Uclaf might decide to make the drug available for testing and marketing in the United States.

Such a step would have great importance for women and may eventually hold the key to lessening the worst aspects of the abortion debate. Because RU 486 operates before or shortly after implantation of the pre-embryo in the wall of the uterus, it prevents or terminates pregnancy before a fetus or even embryo proper has developed. Because it operates so early, contragestion by RU 486 and similar agents is safer for women and less destructive of values of respect for fetuses and prenatal life than later abortions. If most abortions occurred five to seven weeks after fertilization, the potential for defusing the abortion debate for the vast majority of Americans would greatly increase. If Casey helped make RU 486 available in the United States, it will be a significant step forward in resolution of this wrenching social issue.

Reproductive Rights Other Than Abortion

Casey may also be regarded as a victory for reproductive rights other than abortion. A reversal of Roe had the potential to undermine the right to use some widely available forms of contraception and would have cast doubt on the substantive due process grounding of a right to procreate.

If reversal had been based on the Court's finding that there was no fundamental right to end pregnancy, then rights to avoid procreation altogether, such as by contraception, would also have been in doubt. Because Roe rests so firmly on Griswold v. Connecticut, a reversal of Roe on this ground would have called Griswold itself into doubt.

While it seems unlikely that any state, even if it had the constitutional power, would outlaw barrier methods of birth control, fervency and consistency by anti-abortionists might well have led a few states to ban methods of birth control that operate after fertilization. After all, if the fertilized egg is a person from conception, as pro-life advocates insist, then any technique that prevents its coming to term is murder, whether it occurs immediately or several months after fertilization. Casey's resuscitation of Roe thus prevents state erosion of the right to avoid procreation by postcoital and contragestive methods of birth control.

A reversal of Roe would have also cast doubt on the existence of a fundamental right to procreate. At most a right to procreate coitally for married couples might be recognized because of the long tradition associating marriage and coital reproduction. But the right to engage in nonmarital coital reproduction and all forms of noncoital reproduction, even by married persons, would be called into question. State laws that compel use of Norplant by unmarried persons, or that ban marital use of in vitro fertilization, frozen embryos, sperm and egg donation, and surrogacy, would have had a much greater chance of being found valid.

Recognition of Abortion as a Feminist Issue

Finally, one is struck in Casey with how the Court has come explicitly to see abortion as a quintessential issue of women's rights. Roe itself was hardly antifeminist, but there was language at key points in the opinion about the "right of the physician to administer medical treatment according to his professional judgement," which cast the opinion more as a Bill of Rights for physicians than for women.

In subsequent years, feminist legal scholars focused considerable attention on the precise interests of women at stake in the abortion decision. Based on the work of Judith Thomson, Sylvia Law, and Donald Regan,[6] many scholars talked about rewriting Roe in terms of equal protection--as a decision that treated women equally by protecting them, like men, from the burdens of pregnancy.

It is interesting to see that some of these ideas have infiltrated the Casey decision, particularly in the O'Connor-Kennedy-Souter joint opinion for the Court. In describing the basis for finding that termination of pregnancy is part of the Fourteenth Amendment liberty, that opinion goes far beyond Roe in eloquently describing the choice facing a pregnant woman:

The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.

Justice Blackmun, whose opinion in Roe v. Wade stands as a landmark of a woman's procreative liberty, has progressed even further. For the first time in a Supreme Court opinion, he recognizes in his concurring opinion in Casey the gender equality issue at the heart of the abortion debate:

A state's restrictions on a woman's right to terminate her pregnancy also implicate constitutional guarantees of gender equality. State restrictions on abortion compel women to continue pregnancies they otherwise might terminate. By restricting the right to terminate pregnancies, the State conscripts women's bodies into its service, forcing women to continue their pregnancies, suffer the pains of childbirth, and in most instances, provide years of maternal care. The State does not compensate women for their services; instead, it assumes that they owe this duty as a matter of course. This assumption--that women can simply be forced to accept the "natural" status and incidents of motherhood--appears to rest upon a conception of women's role that has triggered the protection of the Equal Protection Clause.

This approach shifts the focus of the Supreme Court's discussion of abortion to the burdens experienced by women in situations of unwanted pregnancy. This shift may prove significant in resolving future conflicts over the state's power to restrict abortion. The poverty of the dissenting opinions in Casey is that they give no regard at all to the uniquely female burdens of unwanted pregnancy. It is encouraging to see that five members of the Supreme Court are finally getting what the abortion debate is all about. If they continue to "get it," procreative liberty will long survive in the United States.


The author is indebted to the helpful comments of Douglas Laycock and Thomas Russell on an earlier draft.


[1.] 410 U.S. 113 (1973).

[2.] U.S. 4795 (1992).

[3.] 492 U.S. 490 (1989).

[4.] City of Akron v. Akron Center for Reproductive Health Inc., 462 U.S. 466 (1983); Webster v. Planned Parenthood of Missouri.

[5.] John Hart Ely, "Wages of Crying Wolf: A Comment on Roe v. Wade," Yale Law Journal 82 (1973): 920; Robert Bork, "Again, a Struggle for the Soul of the Court," New York Times, 8 July 1992.

[6.] Judith Jarvis Thomson, "A Defense of Abortion," Philosophy and Public Affairs 1 (1971): 47; Donald Regan, "Rewriting Roe v. Wade," Michigan Law Review 77 (1979): 1569.
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Title Annotation:includes related article detailing Pennsylvania Abortion Control Act; U.S. Supreme Court case Casey v. Planned Parenthood Association of Southeastern Pennsylvania
Author:Robertson, John A.
Publication:The Hastings Center Report
Date:Sep 1, 1992
Previous Article:La Nature est morte, vive la nature!
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