William and Mary Law School

An excerpt from How Planned Parenthood v. Casey (Pretty Much) Settled the Abortion Wars

An excerpt from Professor Neal Devins’s article,  How Planned Parenthood v. Casey (Pretty Much) Settled the Abortion Wars (Yale Law Review 2009), is below.  For the full article, please click here.

Abstract:

More than twenty-one years after Robert Bork’s failed Supreme Court nomination and seventeen years after Planned Parenthood of Southeastern Pennsylvania v. Casey, the rhetoric of abortion politics remains unchanged. Pro-choice interests, for example, argue that states are poised to outlaw abortion and that Roe v. Wade is vulnerable to overruling. In this Essay, I will debunk those claims. First, I will explain how Casey’s approval of limited abortion rights reflected an emerging national consensus in 1992. Second, I will explain why the Supreme Court is unlikely to risk political backlash by formally modifying Casey—either by restoring the trimester test or by overruling Roe altogether. Third (and most important), I will explain how it is that Casey stabilized state abortion politics. The national consensus favoring limited abortion rights remains intact. Correspondingly, the template of laws approved by the Supreme Court in Casey were politically popular at the time of Casey and remain politically popular today. Indeed, since Pennsylvania has always been one of the most restrictive states when it comes to abortion regulation, very few states are interested in pushing the boundaries of what Casey allows. And while a handful of outlier states have pushed the boundaries of what Casey allows, these states (which account for a quite small percentage of abortions) have largely worked within parameters set by the Court in Casey. Perhaps most telling, neither the confirmation of Chief Justice Roberts and Justice Alito nor the Supreme Court’s approval of federal partial-birth abortion legislation has significantly impacted state antiabortion efforts. For all these reasons, pro-choice and pro-life interests would be better served shifting their energies away from legalistic fights over abortion regulation and toward shaping the hearts and minds of the women who may seek abortions and the doctors and clinics that may provide abortion services.

Introduction:

[T]he abortion battles of today bear no meaningful resemblance to battles of the 1987-1992 era. In the pages that follow, I will argue that Planned Parenthood v. Casey significantly settled the abortion dispute, both by establishing a majoritarian split-the-difference standard and, perhaps more importantly, by providing a template that helps states determine what types of abortion regulations can be constitutionally pursued. This standard has proven sufficiently durable as both a judicial and political precedent that there is no push to change the status quo by the states, Supreme Court Justices, or either the President or the Senate through the appointments-confirmation process.

Casey settled the abortion wars in two ways. First, the decision helped create an environment in which the Supreme Court is unlikely either to overturn Roe or to return the Roe trimester test. Second, the decision helped create an environment in which state lawmakers—if and when Roe were overturned—would be unlikely to outlaw abortion or pass more stringent restrictions (than those enacted by Pennsylvania and approved by the Supreme Court in Casey).

In Part I of this Essay, I will show that Casey’s support of limited abortion rights reflected the political preferences of federal and state lawmakers as well as the American people. 1973-1986 politics made clear that Roe’s absolutism was unacceptable; 1987-1992 politics revealed that overruling Roe was equally unacceptable. Part I, moreover, will highlight the unwillingness of pro-choice and pro-life interest groups to compromise on abortion rights. In Part II, I will explain why the Supreme Court will stick with the Casey undue burden standard. In particular, I will argue that there is nothing to be gained and much to be lost by tossing Casey aside. Casey is a sufficiently malleable standard that it can be applied to either uphold or invalidate nearly any law that a state is likely to pass.

Additionally, the Court would face a fierce backlash if it either repudiated abortion rights by overruling Roe or, alternatively, embraced prochoice absolutism by reinstating Roe’s trimester test. Between 1973 and 1986, the Court’s rigid application of the trimester test to waiting periods and informed consent requirements figured prominently in pro-life attacks on the Supreme Court. These attacks translated into the election of pro-life candidates, the enactment of hundreds of anti-choice statutes, and the campaign to overturn Roe (through the nomination of judges and the filing of briefs). By the same token, 1987-1992 politics as well as the failure of 2008 initiatives makes clear that the repudiation of Roe would trigger a backlash.

Most Americans support limited abortion rights and the overturning of Roe would almost certainly result in the election of pro-choice candidates, the pursuit of pro-choice policy initiatives, and, ultimately, the nomination of Justices willing to reestablish a constitutional right to abortion.

Part III of this Essay will detail the ways in which Casey stabilized state abortion politics. By looking at post-Casey legislative enactments, I will demonstrate that (with the notable exception of partial-birth abortion) state lawmakers have typically looked to provisions of the Pennsylvania statute upheld in Casey as a template for their own legislative enactments. In part, the laws approved by the Court in Casey are the very laws that have been embraced by states who want to place restrictions on abortion. After all, Pennsylvania is ranked by the National Abortion and Reproduction Rights Action League (NARAL) as among the seven most restrictive states when it comes to abortion regulation15—so it is unsurprising that very few states are interested in enacting regulations that restrict choice beyond the Pennsylvania limits. More than that,
Casey’s invalidation of Pennsylvania’s spousal notification provision reinforced Casey’s stabilizing function. By invalidating at least one provision of the challenged statute, Casey legitimated its upholding of the other provisions.

More significantly, by showing a willingness to flesh out the undue burden standard by negative examples as well as positive ones, the Court allowed state lawmakers to escape political pressure to push for restrictions on abortion beyond those specifically approved in Casey. Knowing that abortion is highly salient to voters and knowing that public opinion on abortion has not changed significantly in the past seventeen years most state lawmakers are more than happy to work within the parameters of the Casey template.  For this very reason, neither the nominations of Chief Justice Roberts and Justice Alito nor the Supreme Court’s approval of federal partial-birth abortion legislation in Carhart has fundamentally altered state regulation of abortion. Likewise, the 2008 presidential elections were of only limited significance to state regulation of abortion rights.

Part IV of this Essay will tie these threads together, drawing on the analysis in Part III to make two broader points—one about the Court’s role in the abortion dispute and the other about the advisability of pro-choice and pro-life interests pursuing a legalistic agenda (focusing on legislative enactments and judicial review of those enactments). I will suggest that legislative restrictions on abortion access do not fully explain declines both in the abortion rate and the number of health care providers who perform abortions. Pro-choice and pro-life interests should therefore face facts and stop their incendiary battles over the future of Roe. Pro-life interests have nothing to gain by continuing to talk about their movement’s “basic political task” remaining the same and “a post-Roe world remain[ing] in reach”; likewise, pro-choice interests should not worry about pro-life forces returning “a year from now” to “take a direct attack on Roe.” Instead, pro-choice and pro-life interests should turn their attention away from courts and toward the very women who are the target of state regulation.