Academic journal article The Hastings Center Report

Casey and the Resuscitation of Roe V. Wade

Academic journal article The Hastings Center Report

Casey and the Resuscitation of Roe V. Wade

Article excerpt

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. …

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