'TRAP'ing Roe in Indiana and a common-ground alternative.

Author:Johnsen, Dawn


The voters of South Dakota twice defeated ballot measures that sought to criminalize the performance of abortions, first in 2006 and again in 2008. (1) If enacted, either version of the ban clearly would have violated the constitutional right that the U.S. Supreme Court first recognized by a strong seven-Justice majority in Roe v. Wade (2) and that the Court continues to recognize more than three decades later, albeit by a diminished margin. (3) Those who crafted the ballot measures hoped that by the time the inevitable constitutional challenge worked its way up to the Supreme Court, the Court's composition would have changed sufficiently to uphold the law. Instead, the South Dakota electorate defeated the bans and the nation elected a president, Barack Obama, whose judicial appointees are likely to continue to support Roe. The 2008 election thus reinforced the prevalent view that women's right to decide whether to continue a pregnancy is essentially secure: the political system will defend the right from serious infringement, and the Court will not overrule Roe.

A measure of complacency has prevailed among Roe's supporters since the Court's 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey. (4) By contrast, during the decade prior to Casey, abortion ranked high among the issues that occupied law and politics. Two successive presidents, Ronald Reagan and George H.W. Bush, were elected on platforms that called for the appointment of Justices who would overrule Roe. By the time the Court announced it would hear Case),, those two presidents had appointed five Justices and elevated a sixth to Chief Justice, and the Court appeared to have the votes to overrule Roe.

The Casey Court defied expectations. To the great relief of some and the bitter disappointment of others, the Court reaffirmed what it described as Roe's central holding. In the process, the Justices offered their most fully developed articulations to date of the nature of the right at stake and its centrality to women's liberty and equality-the most striking of which came in a plurality opinion jointly written by three Justices appointed by Presidents Reagan and Bush. The unexpected nature of the ruling and the Court's eloquence contributed to a sense of relief and victory among Roe supporters and distracted attention from the fact that the Court, in some respects, had also diminished Roe's protections.

In the post-Casey world, a reversal of Roe is not the only threat to reproductive health and liberty. To be sure, public discourse over abortion has continued to focus on Roe's formal status, but it has inadequately appreciated the ways in which abortion restrictions already in place, or on the near horizon, threaten to make abortion services unavailable to growing numbers of the most vulnerable women. While South Dakota's high-profile, anti-Roe strategy has floundered, an under-the-radar, ground-level strategy to restrict access to abortion services has flourished.

Advocates of Roe's reversal have differed on how to accomplish their goal. Some have supported the South Dakota approach of enacting outright criminal bans, arguing that the Court (and most important, Justice Kennedy) might be persuaded to change its position if the public case against Roe were reoriented away from fetal protection and toward arguments that keeping abortion legal harms women who have abortions. (5) The second and dominant anti-Roe strategy recognizes that the success of criminal bans would seem to require changing the Court's composition, (6) which is unlikely in the short run. It therefore favors instead an incremental approach: the cumulative effect of legal restrictions short of bans and extralegal pressures to restrict the provision of legal abortion services and create "abortion free" states without criminalization. (7)

Even prior to President Obama's election, the incremental approach was prevalent. In a 2007 memorandum assessing "how best to advance the pro-life cause at present," (8) long-time general counsel to the National Right to Life Committee James Bopp commended "[a]stute pro-life leaders" for "rallying pro-lifers around passing what restrictions were permissible": "clinic regulations (which often shut down clinics), parental involvement, waiting periods, and informed consent." (9) He advised that "now is not the time to pass ... bills banning abortion" because "such an effort is presently doomed to expensive failure" before the Court--a failure that would make a future overruling of Roe even more difficult. (10) Since the 2008 election, the consensus behind the incremental strategy has understandably strengthened among leading anti-Roe advocates, who have sought to convince their constituents, for example, that incrementalism is both "ethical" and "effective," (11) and that "regulations which emphasize the risks to women and the need to protect women (such as informed consent, abortion clinic regulations, etc.) will be more effective means to curtail or overturn Roe than abortion prohibitions." (12)

To help explore some of the ramifications and lessons of abortion restrictions short of direct bans, this Essay takes as its principal example efforts to restrict access to abortion services in Indiana. In 2006, the year South Dakotans first rejected an abortion ban, an Indiana legislator also introduced a bill to outlaw abortion in most circumstances. (13) That bill did not even progress to the point of a hearing, but two moderate-sounding bills that would have restricted the provision of abortion services came close to enactment. (14) One of these bills is particularly worthy of study because, under the guise of health-related building standards, it would have ended the provision of abortion services at every clinic operating in the state. The phrase "TRAP laws," which is short for targeted regulation of abortion providers, is sometimes used to describe such regulations by those who oppose them. (15) Indiana abortion providers, like those throughout the country, continue to confront these and other restrictions in the state legislature and--beginning in 2008--in county commissions as well, in what the president of Indiana Right to Life described as "a new strategy" to work at the county level. (16)

Abortion, of course, has proven to be an issue of enduring public controversy and difficulty. Most Americans would welcome a workable compromise that maintains Roe's core protections while reducing the number of abortions, (17) and the 2008 election may bring some progress on that front. (18) The particulars, however, matter tremendously. As recent Indiana events help to demonstrate, abortion restrictions crafted to sound reasonable and to appeal to moderate legislators who would not support outlawing abortion can operate, in practice, to make abortion unavailable, even while the Court continues to reaffirm Roe and protect the right from direct attacks. Abortion restrictions can impose burdens not apparent on their face, especially on the most vulnerable women--those who, because of their life circumstances, are most unable to bear increased costs, travel additional distances, or otherwise overcome government-imposed barriers to abortion.

Part I of this Essay describes the legal restrictions in effect in Indiana and throughout the nation as a backdrop for Part II's examination of the initiatives proposed during the 2006 legislative session. The surprising role that abortion opponents played in stopping this legislation is the subject of Part III. Part IV examines one lesson that can be taken from the Indiana experience: though their effects may be difficult to predict or measure, politically appealing "compromise" restrictions can harm women's health and undermine our nation's commitment to liberty and equality. This Essay concludes by suggesting a second lesson: the superiority of "common-ground" approaches that promise greater success in reducing the number of abortions while affirming our nation's fundamental values.


    Ever since Roe prevented states from imposing criminal prohibitions on the performance of abortions prior to the point of fetal viability, states have enacted a wide range of statutes that have restricted the provision of abortion services in other ways. During the two decades between Roe and Casey (1973 to 1992), federal courts invalidated, under a "strict scrutiny" standard, several kinds of state restrictions. (19) The Court's decision in Case), is best known for its reaffirmation of Roe's "central holding," (20) but it also substituted a less protective "undue burden" review standard for Roe's traditional and more predictable "strict scrutiny" of abortion restrictions. (21) The Court's articulation and application of the undue burden standard in Casey promised more protection than has since been provided in some later applications. Casey itself, however, signaled that the new standard would be less protective than Roe's by upholding restrictions that the Court had invalidated in two earlier decisions under strict scrutiny. (22)

    Indiana has adopted almost all of the abortion restrictions the courts have upheld. Prior to Casey, Indiana enacted the two significant types of restrictions the Court had found survived Roe. First, Indiana prohibited women enrolled in Medicaid from receiving abortion services through that program with only minor exceptions; (23) currently, thirty-three states and the District of Columbia (as well as the federal government) impose similar funding limitations. (24) Indiana also required girls under eighteen to obtain the consent of a parent before having an...

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