BCSWowbagger2 [score hidden] 14 hours ago*
The dirty little secret of American law is that
Roe v. Wade was overturned over 25 years ago.
In the case
Planned Parenthood v. Casey, the Supreme Court upheld the right to an abortion that had been guaranteed by
Roe, but did so on an entirely different basis.
Roe had built up a "trimester" framework for abortion rights that was based on... well, not much. Blackmun says about
ten words about the first-trimester boundary, vaguely gesturing toward contemporary "maternal health" statistics that are now 45 years out of date and placing the second-trimester boundary at "viability," which is also a moving target as medical technology advances.
And, in practice, the "trimester" framework was itself a bit of sleight-of-hand, since
Roe's companion case,
Doe v. Bolton, opened up an "exception" to the trimester framework that was so broad it effectively bypassed it altogether.
Roe held that the State could legally protect fetal life later in development, with the exception that a mother could always procure an abortion to protect her "life or health."
Doe held that "health" encompassed "all factors -- physical, emotional, psychological, familial, and the woman's age -- relevant to the wellbeing of the patient." The legal effect of this was that any prohibition of late-term abortion could be bypassed by a mother going to an abortionist and saying, "I want an abortion, and not getting one would cause me emotional distress, which would compromise my health." Abortionist agrees, abortion happens, state can't do nuffin' about it. In short, the United States had a regime of abortion on demand, and anything that got in the way of this in any substantive way was struck down as unconstitutional.
That was the law of the land from 1973-1991, and the Supreme Court enforced it pretty vigorously. There were occasional allowances -- as in
Harris v. McRae and
Webster v. Reproductive Health Services -- but for everyone one of those there was an
Thornburgh v. American College of Obstetricians and Gynecologists or
Akron v. Akron Center for Reproductive Health.
In 1992, the Supreme Court heard
Planned Parenthood v. Casey, a case about parental consent and notification laws passed in Pennsylvania by pro-life Democratic Gov. Bob Casey (father of today's Sen. Bob Casey, Jr., who does not share his father's pro-life convictions). The Court, now staffed mostly by Republican appointees, was fully expected to overturn
Roe. But it didn't do that. Justices Anthony Kennedy, O'Connor, and Souter, all appointed by GOP presidents, broke ranks and wrote a downright
strange plurality decision that upheld
Roe on the grounds that it was... well, it probably wasn't
correct, the Court decreed, but it was
precedent, and people relied on it. So they didn't overturn it, but kinda went and rebuilt it. The basis of the abortion right seems to have moved from the "maternal health" basis in
Roe to Anthony Kennedy's heart-of-liberty clause:
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
I say "seems" because the plurality in
Casey is turgidly written and self-contradictory, like
many opinions by Anthony Kennedy, and it's really difficult to work out what the actual legal conclusions are and the principles behind them and how they can be separated from Anthony Kennedy's mood about the case.
Abortion opponents and supporters alike really, really hate
Casey, because it doesn't really make sense -- arguably, it makes even less sense than
Roe, which it purported to replace because of the deep defects in
Roe.
The trimester framework was junked altogether, and the new test for whether an abortion regulation was constitutional or not imposed an "undue burden" on the mother seeking an abortion. Using this new test, the plurality went on to uphold most, but not all, of the Pennsylvania abortion restrictions in question.
But what constitutes an "undue burden"? I'm glad you asked! Nobody knows!
Casey wasn't all that clear about it, lower courts disagree about it, and the Supreme Court has gone back and forth on its meaning several times since
Casey.
That means the meaning and scope of the "undue burden" test has been
the battlefield for abortion in the courts for the last twenty-five years. Is it an undue burden to ban the partial-birth abortion procedure (also known as "dilation and extraction")? The Supreme Court of 2000
says "yes", that's too tough a burden. The Supreme Court of 2007
says "no", that's fine. That's one obvious example, but you could list literally hundreds of these cases on dozens of issues: are parental notification laws an undue burden? How about parental consent laws? Spousal consent? Spousal notification? 3-hour waiting periods? 24-hour waiting periods? 72-hour waiting periods? Bans of specific procedures? Blanket bans after a certain number of weeks? With rape exceptions? Without rape exceptions? Right-to-know laws that require abortionists to provide certain state-designated information to mothers considering abortion? Mandatory pre-abortion ultrasounds? Heartbeat monitors? Surgical center requirements? Mandatory ambulance agreements? Admitting privilege requirements? The pro-life movement has been very, very clever about finding new ways to disrupt the abortion process that have a facially constitutional justification and thus have a good shot at surviving judicial review as not being "undue burdens." And even when one gets struck down, we just find another avenue of attack and get back to it.
It's pretty unlikely, in my view, that the Supreme Court will come out and say "
Roe v. Wade was wrong the day it was decided, and it is wrong today." Not with Roberts on the Court.
I expect they will start out under the
Casey test, interpreting "undue burden" very narrowly. Justice Kavanaugh did just that in
Garza v. Hargan, where he concluded that the U.S. could refuse to facilitate an abortion for an illegal immigrant minor in U.S. custody as long as a sponsor for her immigration is "expeditiously" found and she is released into the sponsor's custody (and then the sponsor can facilitate the abortion).
From there, the floodgates will open. There's a zillion undue burden cases in state courts today -- just off the top of my head, there are clinic-regulation cases in Kentucky and Louisiana and I think Virginia, all of which would give the Supremes a chance to explicitly or effectively reverse
Whole Women's Health v. Hellerstadt (2016), a case where a 5-3 Court (would've been 5-4 if Scalia hadn't died) struck down verrrrrry similar clinic regulations in Texas.
Once
Casey has been effectively undermined, the road is opened to a full-on reversal of
Casey. Kavanaugh explained how this is done in his testimony to Congress:
Well the factors the Supreme Court looks at are whether the decision is not just wrong, but grievously wrong, whether it's inconsistent with the law that's grown up around it, what the real-world consequences are, including workability and reliance. One of the genius moves of Thurgood Marshall among many genius moves he made as a lawyer was to start litigating case by case. He knew Plessy was wrong the day it was decided, but he also knew, as a matter of litigation strategy, the way to bring about this change was to create a body of law that undermined the foundation of Plessy. He started litigating cases and showing, case by case, that separate was not really equal. He did it in cases like Sweatt vs. Painter and many other cases. He built up a record over time. By the time he went to the Supreme Court to argue Brown v. Board of Education, he had shown its inconsistency with the law built up around for those who weren't otherwise as quickly on board with the idea that Plessy was wrong the day it was decided. He was taking no chances. By the time it got to Brown v. Board of Education, the foundations for overturning Plessy had been strengthened by showing what the real world consequences were and by building up a body of law that was inconsistent with the principle—the erroneous principle set forth in Plessy. He had a strategic vision of how to do this, which was brilliant, and he effectuated it with lawyers over time, litigating case after case and building up factual records that would show the badge of inferiority from separate educational facilities, and separate facilities, more generally. That's how he was able to show that the precedent, even with principles of stare decisis in place, should be overturned.
Most people have never heard of
Casey. They've heard of
Roe. But
Roe is already dead.
Casey is the abortion law of the land today. Overturning
Casey kills what people think of as
Roe (which... that's a complicated mess anyway, because most people have no idea what
Roe actually did or what it established in practice, but let's not digress), and returns abortion policy to the states without ever getting a big scary headline like "SUPREMES KILL ROE!" from the press, which strongly favors expansive abortion rights and access.
