THE NEVER-ENDING STRUGGLE FOR REPRODUCTIVE RIGHTS.

• Author: Toti, Stephanie

For me, the annual Book Review issue is a time for reflection. It provides an opportunity to take stock of scholarly trends, reassess conventional wisdom, and gather new insights to apply to the practice of law. The reviews contained in this year's issue address a wide range of subjects, including the history of public defenders, the use of bigotry rhetoric in conflicts over marriage and civil rights law, the role of cost-benefit analysis in federal policymaking, and racial inequities in tax policy. This impressive commentary on an astute and varied collection of books about the law will inspire many of us to pause and consider larger questions about our own work: Where do things stand? How did we get here? What comes next?

My career has largely focused on reproductive rights. It is an area of the law that is perpetually at a crossroads and therefore always ripe for reflection. These rights, long recognized and deeply valued by a majority of Americans, are continually under attack and always--it would seem--on the brink of elimination. Almost from the day Roe v. Wade was decided, (1) critics began calling for it to be overruled, and commentators began predicting its downfall. (2) Although it has weathered the storm for nearly fifty years, those critics and commentators remain undeterred, still forecasting Roe's imminent demise. (3) And who knows? Perhaps this charged moment in our nation's history, which seems increasingly like the dystopian future that prescient novelists warned of long ago, will see a disruption in constitutional protection for reproductive rights. Or perhaps the rights that have been central to the liberty and equality of women and gender-expansive people for half a century will continue to endure.

In this Foreword, I would like to reflect on two aspects of reproductive rights law in particular. First, there is a seeming duality in the Supreme Court's abortion jurisprudence. On the surface, it embodies a longstanding commitment to safeguarding the right to abortion. But just below the surface, the caselaw reflects a deep tension between this commitment and the Court's recognition that certain members of our society--some motivated by "unprincipled emotional reactions" and others motivated by "principles worthy of profound respect" (4)--will never accept that the Constitution grants the authority to make decisions about the outcome of a pregnancy to the individual who is pregnant rather than to the government. Second, the abortion right has proven surprisingly durable despite powerful efforts to subvert it. It seems that the vital relationship of this right to core constitutional values like liberty, equality, and freedom of belief, and the critical role that it plays in the ability of women and all people with the capacity for pregnancy to participate fully and equally in society, make it extremely difficult to cast aside, rhetorical denunciations notwithstanding.

1. THE DUALITY OF THE SUPREME COURT'S ABORTION JURISPRUDENCE

   Few areas of the law are more fraught than reproductive rights. The view from ten thousand feet may not suggest this: it shows an unbroken line of cases spanning nearly five decades in which the Supreme Court has held that the right to end a pre-viability pregnancy is a fundamental component of the liberty protected by the Due Process Clause. (5) On the ground, however, there have been nonstop efforts to unsettle this seemingly settled area of law, with abortion opponents constantly mounting strategic campaigns to chip away at the scope of the abortion right and seat jurists who are hostile to abortion. Despite Justice Kennedy's famous declaration that "[l]iberty finds no refuge in a jurisprudence of doubt," (6) doubt abounds in the legal landscape surrounding reproductive rights, and the contours of the abortion right have often fluctuated with the membership of the Court.

   The Court first recognized a constitutional right to abortion in 1973 in Roe v. Wade (7) and its lesser-known companion, Doe v. Bolton. (8) Both cases were decided 7-2, indicating broad support for the newly recognized right, with no clear ideological or partisan fault lines separating the majority and dissent. (9)

   But just a few years later, the Court seemed to lose some of the courage of its conviction, holding first in Maher v. Roe and then in Harris v. McRae that the Constitution permits governments to prohibit public health-insurance programs from covering abortions. (10) As Justice Marshall noted in dissent, such coverage bans are "the product of an effort to deny to the poor the constitutional right recognized in Roe v. Wade." (11)

   Over the next twelve years, the Supreme Court reaffirmed Roe on several occasions, striking down state and local laws that flouted its holding. (12) Nevertheless, the Supreme Court's membership became steadily more conservative--and inimical to abortion rights--as Presidents Ronald Reagan and George H.W. Bush collectively filled five vacancies on the Court. (13) This led to increasing calls by sitting justices to reconsider Roe. (14) By 1989, when the Court decided Webster v. Reproductive Health Services, which concerned the constitutionality of a Missouri statute regulating abortion, it was so fractured that it could not produce a majority decision. (15) Justice Kennedy joined Roe's dissenters in urging the Court to reconsider Roe's holding, (16) Justice O'Connor said that she continued to find Roes analytical framework "problematic," (17) and Justice Scalia made an outright call for the Court to overrule Roe. (18) Following the appointment of Clarence Thomas in 1991, it was widely believed that the Court was poised to do just that. (19)

   One year later, in Planned Parenthood of Southeast Pennsylvania v. Casey, the Supreme Court did reconsider whether the Constitution protects the right to pre-viability abortion. To the consternation of Roe's critics, however, it once again answered the question affirmatively. (20) At the same time, however, a plurality of the Court replaced Roe's trimester framework--a variation of strict scrutiny--with the less rigorous undue burden standard. (21) Applying this standard, the Court upheld mandatory waiting-period and disclosure requirements of a kind that it had previously deemed unconstitutional...