Preserving Roe v. Wade ... when you win only half the loaf.

• Author: Wharton, Linda J.
• Position: 40th Anniversary of Roe v. Wade Commemorative Articles

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. For these women, even in the absence of direct criminalization, the cumulative impact of these barriers may cause them to delay or entirely forego their abortions. (13) In addition, in recent years an energized anti-abortion political base has had electoral successes, especially in the 2010 mid-term elections, that have emboldened attacks on a wide range of other reproductive freedoms, including birth control, that were unimaginable in the days before Casey. (14) Ironically, these initiatives, which include federal and state efforts to reduce funding for family planning services and to defund Planned Parenthood, (15) may increase unintended pregnancies and thus the need for legal abortion. The Article concludes by evaluating recent developments in reproductive rights advocacy and reminding pro-choice supporters who may have been lulled into complacency by Casey that remaining vigilant, wary, and politically active in the face of a "win" in the courts may be the only way to preserve a still-fragile constitutional right.

1. THE CASEY LITIGATION STRATEGY

   Our decision to seek review in the Supreme Court was motivated by politics as much as law. Timing was a key aspect of our political strategy. A decisive victory at trial in the district court (16) had been followed by a stunning loss in the United States Court of Appeals for the Third Circuit. (17) The Third Circuit refused to apply Roe's strict scrutiny standard, construing Webster v. Reproductive Health Services (18) and Hodgson v. Minnesota (19) as having established a new standard of review to assess restrictions on abortion--the undue burden standard found in Justice O'Connor's concurring and dissenting opinions. (20) Applying that standard, the court of appeals upheld all of the challenged restrictions except the requirement that married women notify their husbands of the abortion decision. (21) Justice Samuel Alito, then a member of United States Court of Appeals for the Third Circuit, dissented on the ground that the husband notification provision did not, in his opinion, unduly burden women's access to abortion. (22)

   The court of appeals's decision was handed down on October 21, 1991--less than one week after Justice Clarence Thomas's contentious confirmation hearing ended (23) and one year before the 1992 presidential election that pitted George H.W. Bush against Bill Clinton. Two days later, Justice Thomas ascended to the Court, securing what nearly all believed was a majority of Justices poised to overturn Roe. (24) The only silver lining in this grim reality was the possibility of forcing the Supreme Court's hand before the November election. Particularly given the lingering furor over Justice Thomas's appointment, we believed that the pendency of an abortion rights case before the Court would energize pro-choice forces and raise public awareness about the vulnerability of Roe. Moreover, if Roe v. Wade was to be overruled, the election provided the opportunity for pro-choice voters to express their dissatisfaction at the polls by electing a pro-choice President and members of Congress who would, in turn, secure abortion rights through future Supreme Court nominations and national legislation. In other words, a pre-election overruling of Roe, while deeply undesirable in other respects, had the potential to turn the 1992 presidential election into a referendum on abortion rights, fueling the election of pro-choice candidates and support for a pro-choice legislative agenda. (25) After thorough discussions with us, weighing the advantages and disadvantages of this approach, our clients chose to go forward with this unconventional strategy--pushing for review and the potential loss of Roe as quickly as possible. (26)

   So as to maximize the chances that, if review was granted, the case would be heard and decided by the end of the October 1991 term, we filed our petition for certiorari on November 7, 1991, just two weeks after the court of appeals's decisions Seeking to ensure that the electorate understood that Roe's validity, not just the specific provisions of the Pennsylvania law, was at stake, our petition squarely called the question: "Has the Supreme Court overruled Roe v. Wade, holding that a woman's right to choose abortion is a fundamental right protected by the United States Constitution?" (28) Despite internal maneuvering by Chief Justice Rehnquist to try to delay consideration of the case, (29) on January 21, 1992, the Court granted certiorari. (30)

   In our merits briefs and at oral argument, we argued that the doctrine of stare decisis required reaffirmation of Roe, (31) emphasizing its constitutional validity, the importance of adhering to its strict scrutiny standard, the workability of its trimester framework, and the utter lack of any principled basis for overturning it. (32) We also highlighted the gross inadequacies of the undue burden and rational basis standards of review, arguing that they would "sanction and invite intolerable legislative interference with private reproductive decisions" and "ensure an irrational patchwork of state laws and would return to the vicissitudes of local politics what Roe properly removed from that forum." (33) Consistent with past precedent, we invoked principles of personal privacy to support Roe's constitutional validity, but also strongly emphasized the link between reproductive autonomy and women's equality:

   [B]y affording women greater control over their childbearing, Roe has permitted American women to participate more fully and equally in every societal undertaking. The option of safe, legal abortion has enabled great numbers of women to control the timing and size of their families and thus continue their education, enter the workforce, and otherwise make meaningful decisions consistent with their own moral choices. As a result...