Casey and its impact on abortion regulation.

• Jurisdiction: United States
• Date: 01 March 2004
• Author: Moses, Michael F.
• Published date: 01 March 2004
• Author: Moses, Michael F.

This year marks two important anniversaries. Roe v. Wade (1) is thirty-one years old. Planned Parenthood v. Casey (2) just turned twelve. Casey is less of a household name than Roe. But in some ways, Casey is more important because it changed the way courts review abortion laws. Casey did not make it easier to ban abortion. After Casey, just as before, the government may not prohibit abortion before viability, nor prevent any abortion necessary to preserve a woman's life or health. (3) But for abortion laws that fall short of a ban, Casey declared that courts should use an undue burden standard, (4) a standard that is more lenient than the strict scrutiny used in Roe. (5)

Why the change? The Court admitted in Casey that in previous cases it had not given enough recognition to the states' interest in protecting human life. (6) Combined with the new standard, this meant that after Casey states would be freer to regulate abortion than previous cases had allowed. (7) Casey explicitly overruled earlier decisions that had been too begrudging of state efforts to regulate the abortion procedure. (8)

That was how the decision was read by both sides of the abortion debate. Janet Benshoof, a longtime abortion rights advocate, warned that Casey "severely limited [the] women's constitutional protections" given in Roe. (9) A less restrained Planned Parenthood of New York City, two days after Casey was decided, placed a full page ad in the New York Times warning that "Roe v. Wade is dead." (10) Roe's demise was greatly exaggerated. There was, however, universal agreement that Casey left states in a better position to regulate abortion. Just last term, Justice Scalia reminded us that "Casey provided a less expansive right to abortion than did Roe." (11)

One way to assess the impact of Casey is to therefore to ask whether the courts have kept the promise made in Casey. Is it easier now to regulate abortion? Do courts now defer to legislatures more than they did before Casey? The answer is mixed.

In the twelve years since Casey, judges have rejected some of the more incredible claims made by the abortion industry, but usually only after years of litigation. (12) For example, in Montana, a physician's assistant challenged a law that said only doctors can perform abortions. (13) It seems just common sense that states do not violate the Constitution if they forbid non-physicians from performing surgery. Abortion is a surgical procedure. But a federal court of appeals struck the law down (14) and it took a Supreme Court decision to get it reinstated. (15)

In Texas, the abortion industry claimed that it was an equal protection violation to impose stricter regulations on doctors' offices that perform over 300 abortions a year than on those that perform fewer. (16) It is not unusual for legislatures to use numerical cutoffs. (17) But a federal judge struck down the Texas law (18) and again, it took an appeal to get it reinstated. (19)

In Indiana, Planned Parenthood claimed that a law imposed an undue burden because it required doctors to meet face to face with patients before performing an abortion. (20) The purpose of the law was to simply to see that women got information about their pregnancies and about abortion before undergoing an abortion. (21) It seems clear that nothing in the Constitution prevents states from requiring doctors simply to meet face to face with their patients to talk about a procedure the doctor is about to perform on the patient. But, again, a federal judge struck the law down. (22) And again, it took an appeal to get it reinstated. (23)

All of the claims described above were ultimately rejected. But it took many years of litigation. During all that time, the laws being challenged were not being enforced because they had been enjoined while the litigation was pending. (24)

Unfortunately, some of the bad decisions have not been reversed on appeal. For example, a Texas regulation provided that abortion clinics had to treat patients in a way that would "enhance each patient's dignity." (25) A court thought that the notion of "dignity" too vague to be enforceable and struck it down even though federal health regulations use the same word repeatedly in similar contexts. (26) A parental consent abortion law in Arizona was struck down because, though it had a judicial bypass, it did not have specific deadlines. (27) The Supreme Court has held that bypass petitions have to be heard promptly, (28) but it will never be known how Arizona would have implemented its law because it never got a chance.

That is where things stand today. Casey said states should be freer to regulate abortion, (29) but courts are continuing to scrutinize abortion laws closely, and in many cases striking down what appear to be reasonable regulations. (30)

There are three specific problems with Casey that have allowed this situation to continue and to fester. First of all, it is not clear what an undue burden is. The Supreme Court defined it as a "substantial obstacle," (31) but those words seem as vague as the words they define. The dissenters in Casey thought the undue burden was "based even more on a judge's subjective determinations than was the trimester framework" that Casey rejected. (32) In sum, Casey did not give us a clear test.

A second problem is deciding to whom the undue burden test should be applied. Is a law invalid if it unduly burdens everyone's right to an abortion or if it burdens only some women? Most courts, following the joint opinion in Casey, say that it is the latter. (33) But that seems like a throwback to Roe. If an abortion law is invalid because it burdens only a few people, that is much like the strict scrutiny Casey rejected. (34)

A third problem is that Casey has not prevented courts from enjoining laws that have never gone into effect. Planned Parenthood v. Lawall is a good illustration. (35) It is often difficult to know or predict what precise impact a law will have if it has never been enforced. (36) Yet courts continue to strike down laws that have never been enforced based frequently on speculative evidence. (37)

Has the Supreme Court done anything since Casey to fix these problems? Not yet. The most interesting thing about the last twelve years is just how little the Supreme Court has had to say about abortion. The Court has heard a few cases involving pro-life demonstrators, but those are more about free speech than abortion, at least on the surface. (38) In these cases, which are mostly flitting around the edges of the abortion issue, demonstrators find no natural ally, for those Justices who might be thought most sympathetic to speech rights are generally most committed to the abortion right. (39)

Four years ago the Court took up the partial birth abortion issue in Stenberg v. Carhart. (40) It was the first substantive abortion case the Court had heard since Casey. Unfortunately, Carhart was a step backwards. Usually if the government bans an unsafe medical procedure, the courts will not interfere even if some medical experts think it is safe. (41) In Carhart there was conflicting, or at least ambiguous evidence about whether partial birth abortion was dangerous for women. (42)

But instead of deferring to the legislature, the Court held that if there is significant or substantial medical authority that an abortion procedure is safe, states cannot ban it even if other evidence shows the procedure is dangerous. (43) That means the government can never ban an abortion procedure if the abortion industry can find a few authorities within the industry who say it is safe. It is comparable to saying that a car maker has a right to make a dangerous car, and the government may not interfere, as long as someone with the company says it is safe.

Carhart and lower court decisions show rather plainly that the courts have not yet given states the latitude to regulate abortion that Casey promised. Could things change? Yes. Even though it has borne little fruit to date, Casey could be a pathway for change. Roe's strict scrutiny was usually fatal. (44) Casey's undue burden test at least gives courts room to uphold abortion laws. In twenty years, we have moved from a situation where laws were almost certain to be struck down to one where there is a real chance they can be upheld.

Casey may have laid the groundwork for change. Our task now is to encourage the Supreme Court and lower courts to define and apply the undue burden test in a way that truly is more deferential to legislatures. Absent wholesale recognition of the fundamental error made in Roe, the courts should honor the promise made in Casey to permit greater regulation of abortion and should apply the more lenient standard of judicial review announced in that case.

Four specific areas seem ripe for legislative action. First, states should enact real bans on post-viability abortions. It is true that a post-viability ban requires a life/health under Roe (45) and Casey. (46) But the exception should not swallow the rule. Ever since Roe, the Court has insisted that the Constitution does not require abortion on demand. (47) That can only be true if the Constitution permits a post-viability ban with teeth.

For example, in 1997, Justice Thomas, joined by two other justices, wrote that he did not read the life/health exception for postviability abortions to include mental health. (48) Since the Supreme Court has explicitly rejected the notion of abortion on demand, the entire Court and lower courts should agree that the life/health exception excludes psychological and sociological factors, factors that can easily be manipulated to permit abortion on demand. (49)

Second, states can pass laws that protect an unborn child from harm to which the mother has not consented--laws like Laci and Connor's Law, the Unborn Victims of Violence Act. (50) Third, states can pass legislation to ensure that women know about the risks of abortion. That can be done with...