Winter count: taking stock of abortion rights after Casey and Carhart.

• Author: Borgmann, Caitlin E.

In 1973, the United States Supreme Court decided Roe v. Wade, (1) the landmark case that established the right to abortion as a fundamental constitutional right. The Court faced its first real opportunity to reverse that monumental decision a mere sixteen years later. In Webster v. Reproductive Health Services, (2) the State of Missouri and the United States explicitly asked the Court to overrule Roe. (3) Women in the United States waited anxiously to see whether the Court would end the brief and besieged era of the constitutional right to abortion. (4) The Court in Webster ultimately ducked the question, but its decision presaged a fundamental change in how the Court would approach the right to abortion. (5) The right would be different from the one announced in Roe, and it would be weaker.

Within three years of Webster, the Court's composition changed, and the change boded ill for abortion rights. President George H. W. Bush appointed Justices Souter and Thomas, in quick succession, to replace two of the Court's liberal stalwarts, Justices Brennan and Marshall. (6) Hot on the heels of this shift, the Court accepted review of Planned Parenthood v. Casey, (7) a case in which the government again asked the Court to overrule Roe. The stakes for abortion as a constitutional right could not have been higher.

In a surprise decision, the Court declined to overturn Roe, with an improbable alliance of Justices reaffirming what it called Roe's "essential holding." (8) The constitutional right to abortion had now dodged its second bullet, this time with a Court that appeared even less sympathetic to the abortion right. Some commentators proclaimed that the major legal battle over abortion was finished. (9) Indeed, today, at age thirty-one, Roe has yet to be expressly overruled. The Court recently reaffirmed a woman's right to choose abortion, striking down Nebraska's "partial-birth abortion" ban in Stenberg v. Carhart. (10) In that decision, the Court firmly announced it would not reexamine the constitutionality of abortion rights: "This Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman's right to choose.... We shall not revisit those legal principles." (11) A cursory look at Casey and Carhart might lead an observer to conclude that, although the Court has renounced key aspects of Roe's framework, the right to abortion remains well-protected under the federal Constitution.

But such a conclusion would ignore the implications of the Court's decision in Casey and would place too much hope in Carhart. Casey fundamentally changed the character of the right to abortion in this country, reinventing the right in a form more vulnerable to continued erosion. (12) And Carhart, although drawing an important line in the sand against extreme abortion measures, did not alter this basic fact. (13) Justice Blackmun, Roe's author, had forecast the sea change in his dissent in Webster. The worst of Blackmun's fears have not been realized: abortion may not be banned altogether and severe restrictions that obstruct access to safe abortions are likewise impermissible. Beyond this bottom line, however, little of Roe's protections remain and the right to abortion continues to be burdened in ever more creative ways. The women most at risk--including many poor women and teenagers--cannot overcome all of the barriers and have effectively lost their right to abortion. (14) In this article, I examine Casey and Carhart to assess the state of abortion rights today.

1. WEBSTER V. REPRODUCTIVE HEALTH SERVICES

   Webster v. Reproductive Health Services (15) presented a constitutional challenge to Missouri's omnibus abortion statute. (16) The legislation was crafted by anti-choice activists specifically to put an abortion test case before the Supreme Court. (17) In a highly fractured decision, a plurality of the Court declined to overrule Roe explicitly although it upheld all of the statute's challenged provisions. (18) Justice Rehnquist, writing for the plurality, claimed that the case "affords us no occasion to revisit the holding of Roe, ... and we leave [Roe] undisturbed." (19)

   Although it carefully avoided overruling Roe outright, the plurality advocated limiting Roe dramatically. (20) Justice Rehnquist's opinion did not directly identify what level of review should apply to abortion restrictions, but the plurality's deference to the state's interests (21) signaled a significant retreat from Roe's strict scrutiny standard, the highest level of constitutional review. (22) Justice Blackmun called the plurality's analysis "nothing more than a dressed-up version of rational-basis review, this Court's most lenient level of scrutiny." (23) The most hotly debated provision was a viability-testing requirement for all abortions performed starting at twenty weeks of pregnancy. (24) Admitting that this provision increased the costs of abortions and curbed physician discretion, Rehnquist nonetheless proclaimed himself "satisfied that the requirement of these tests permissibly furthers the State's interest in protecting potential human life." (25) Rehnquist concluded, "To the extent indicated in our opinion, we would modify and narrow Roe and succeeding cases." (26)

   Justice Blackmun, author of the majority opinion in Roe, saw a dangerous duplicity in the plurality's approach:

   Never in my memory has a plurality gone about its business in such a deceptive fashion. At every level of its review ... the plurality obscures the portent of its analysis. With feigned restraint, the plurality announces that its analysis leaves Roe "undisturbed," ... [b]ut this disclaimer is totally meaningless. The plurality opinion is filled with winks, and nods, and knowing glances to those who would do away with Roe explicitly, but turns a stone face to anyone in search of what the plurality conceives as the scope of a woman's right under the Due Process Clause to terminate a pregnancy free from the coercive and brooding influence of the State. The simple truth is that Roe would not survive the plurality's analysis, and that the plurality provides no substitute for Roe's protective umbrella. (27) In Planned Parenthood v. Casey, three Justices offered that substitute in the form of the undue burden test.

2. PLANNED PARENTHOOD v. CASEY

   The Court confronted another opportunity to overrule Roe just three years later in Planned Parenthood v. Casey, (28) but this time the Court directly rebuffed the government's request that it do so. (29) Casey is widely known for upholding Roe v. Wade, but many do not comprehend the extent to which Casey in fact dismantled Roe's protective framework. Indeed, the majority opinion's sweeping language, celebrating the importance of reproductive freedom for women's autonomy and equality, (30) masked, perhaps deliberately, the decision's alarming retreat from the lines the Court drew in Roe.

   The joint opinion (31) opened dramatically, heartening those who feared a total loss of the constitutional right to abortion: "Liberty finds no refuge in a jurisprudence of doubt." (32) The opinion went on to decide that "the essential holding of Roe v. Wade should be retained and once again reaffirmed." (33) Apprehensive women reading these first pages of the joint opinion may well have breathed a sigh of relief. (34) Of course, the Court could have done away completely with the constitutional right to abortion. (35) Viewed in that light, Casey was a victory. But readers who managed to reach the latter parts of the voluminous joint opinion discovered that the Justices' moving rhetoric was misleading.

   The most obvious danger sign was that Casey upheld all but one of the challenged provisions of the restrictive Pennsylvania Abortion Control Act. (36) Among other provisions, the joint opinion upheld a requirement that a woman receive state-mandated information designed to dissuade her from having an abortion and then wait twenty-four hours before obtaining the abortion. (37) The joint opinion could reach this result only by overruling parts of two earlier decisions in which the Court had struck similar regulations under Roe's strict scrutiny analysis. (38)

   How did the Justices manage to uphold all of these restrictions while "reaffirming" Roe? They did so first by radically revising Roe's "essential holding." (39) Roe established the following framework for evaluating abortion restrictions: 1) in the first trimester, the state may not regulate abortion, but instead must leave "the abortion decision and its effectuation ... to the medical judgment of the pregnant woman's attending physician"; 2) after the first trimester, the state can regulate the abortion procedure, but only in ways "reasonably related to maternal health"; 3) after viability, "the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion," so long as it provides exceptions to protect the woman's life and health. (40)

   The Casey joint opinion redefined Roe's holding as comprising three parts: 1) a recognition of the woman's right to choose an abortion before viability and to obtain it "without undue interference" from the state; 2) a confirmation of the government's power to restrict abortions after fetal viability, provided such restrictions contain exceptions "for pregnancies which endanger the woman's life or health"; and 3) a recognition that the government has "legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus." (41)

   This construction diverged significantly from Roe's framework. Although Roe had generally acknowledged the state's "important and legitimate" interest in the fetus, Justice Blackmun was careful to recognize that interest as compelling only after viability. (42) Because the Roe Court had established that the right to abortion was a fundamental right, the state could...