Preserving Roe V. Wade ... When You Win Only Half the Loaf

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TABLE OF CONTENTS  INTRODUCTION  I.   THE CASEY LITIGATION STRATEGY II.  THE CASEYDECISION III. ASSESSING THE MIXED OUTCOME IN CASEY CONCLUSION 

INTRODUCTION

"Liberty finds no refuge in a jurisprudence of doubt." (1) With these opening words, the Supreme Court in its landmark joint opinion in Planned Parenthood v. Casey reassured those who had doubted whether Roe v. Wade would survive and ultimately reaffirmed what it deemed Roe's "essential holding." (2) As lead counsel for Planned Parenthood of Southeastern Pennsylvania and other Pennsylvania reproductive health care providers in the Casey litigation, we greeted the decision with a mixture of surprise, relief, and uncertainty. After a nineteen-year concerted assault on Roe in which anti-choice forces fought for its wholesale overruling and the resulting recriminalization of abortion in America, by the narrowest of margins the Supreme Court declined to take that step. Yet, even as it reaffirmed Roe, the Court proceeded to overhaul it, replacing Roe's highly protective strict scrutiny standard (3) with a new, less protective undue burden test for measuring the constitutionality of restrictions on abortion. (4) This new standard was protective enough to sustain a facial challenge to two of the restrictive provisions challenged in Casey--the Pennsylvania law's husband notification requirement (5) and its related reporting provision (6)--and to raise concerns about the constitutionality of others despite the limited record before the Court. Moreover, the Casey plurality insisted that it intended to provide a level of protection for abortion fully consistent with Roe's core objective of "ensur[ing] that the woman's right to choose not become so subordinate to the State's interest in promoting fetal life that her choice exists in theory but not in fact." (7)

At the time Casey was decided, and indeed in much commentary that followed, the litigation strategy and resulting decision was credited as a significant legal and political victory. (8) In light of the expectations of most court watchers at the time, who fully believed that the Court was prepared to overrule Roe, (9) as well as a first--and thankfully never published--draft of the Casey opinion written by Chief Justice Rehnquist that had reduced constitutional review to the most minimally protective rational basis standard, (10) the decision in Casey was a significant victory. But as interpreted by the lower courts and later applied by the Supreme Court in the two decades since Casey, the undue burden standard has proven to be far less protective of abortion rights than the Roe standard. (11) Moreover, the public's relief that Roe was not overturned, coupled with its perception--however faulty--that Casey adequately protected women's reproductive choices, has limited the ability of advocates to organize successfully to secure the abortion right in the past two decades. Indeed, by winning only a partial victory, we secured Roe's formal status, but were unable to forestall a plethora of burdensome abortion restrictions that increasingly threaten to make abortion services unavailable to America's most vulnerable women.

On the occasion of the twentieth anniversary of Casey and the upcoming fortieth anniversary of Roe, this Article will describe our litigation strategy in seeking to preserve Roe, assess the mixed outcome in Casey, and highlight both the advantages of the surprising decision and some of its drawbacks. We are particularly concerned that the Supreme Court's erosion of federal constitutional protection for abortion in Casey and subsequent judicial rulings that fail to place teeth into the undue burden standard have led to an avalanche of new legal restrictions on abortion. (12) Together with other barriers to access, such as the high cost of abortions, misinformation, harassment, and provider shortages, these governmental restrictions have made it increasingly difficult for American women to obtain abortion services and have been particularly burdensome for young, poor, and rural women and for those who are survivors of physical abuse and sexual assault. …