Winter Count: Taking Stock of Abortion Rights after Casey and Carhart
Borgmann, Caitlin E., Fordham Urban Law Journal
In 1973, the United States Supreme Court decided Roe v. Wade, (1) the landmark case that established the right to abortion as a fundamental constitutional right. The Court faced its first real opportunity to reverse that monumental decision a mere sixteen years later. In Webster v. Reproductive Health Services, (2) the State of Missouri and the United States explicitly asked the Court to overrule Roe. (3) Women in the United States waited anxiously to see whether the Court would end the brief and besieged era of the constitutional right to abortion. (4) The Court in Webster ultimately ducked the question, but its decision presaged a fundamental change in how the Court would approach the right to abortion. (5) The right would be different from the one announced in Roe, and it would be weaker.
Within three years of Webster, the Court's composition changed, and the change boded ill for abortion rights. President George H. W. Bush appointed Justices Souter and Thomas, in quick succession, to replace two of the Court's liberal stalwarts, Justices Brennan and Marshall. (6) Hot on the heels of this shift, the Court accepted review of Planned Parenthood v. Casey, (7) a case in which the government again asked the Court to overrule Roe. The stakes for abortion as a constitutional right could not have been higher.
In a surprise decision, the Court declined to overturn Roe, with an improbable alliance of Justices reaffirming what it called Roe's "essential holding." (8) The constitutional right to abortion had now dodged its second bullet, this time with a Court that appeared even less sympathetic to the abortion right. Some commentators proclaimed that the major legal battle over abortion was finished. (9) Indeed, today, at age thirty-one, Roe has yet to be expressly overruled. The Court recently reaffirmed a woman's right to choose abortion, striking down Nebraska's "partial-birth abortion" ban in Stenberg v. Carhart. (10) In that decision, the Court firmly announced it would not reexamine the constitutionality of abortion rights: "This Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman's right to choose.... We shall not revisit those legal principles." (11) A cursory look at Casey and Carhart might lead an observer to conclude that, although the Court has renounced key aspects of Roe's framework, the right to abortion remains well-protected under the federal Constitution.
But such a conclusion would ignore the implications of the Court's decision in Casey and would place too much hope in Carhart. Casey fundamentally changed the character of the right to abortion in this country, reinventing the right in a form more vulnerable to continued erosion. (12) And Carhart, although drawing an important line in the sand against extreme abortion measures, did not alter this basic fact. (13) Justice Blackmun, Roe's author, had forecast the sea change in his dissent in Webster. The worst of Blackmun's fears have not been realized: abortion may not be banned altogether and severe restrictions that obstruct access to safe abortions are likewise impermissible. Beyond this bottom line, however, little of Roe's protections remain and the right to abortion continues to be burdened in ever more creative ways. The women most at risk--including many poor women and teenagers--cannot overcome all of the barriers and have effectively lost their right to abortion. (14) In this article, I examine Casey and Carhart to assess the state of abortion rights today.
I. WEBSTER V. REPRODUCTIVE HEALTH SERVICES
Webster v. Reproductive Health Services (15) presented a constitutional challenge to Missouri's omnibus abortion statute. (16) The legislation was crafted by anti-choice activists specifically to put an abortion test case before the Supreme Court. (17) In a highly fractured decision, a plurality of the Court declined to overrule Roe explicitly although it upheld all of the statute's challenged provisions. …