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How Abortion Ends Without Overturning Roe v. Wade
The key to ending access to abortion in America could be in a ruling from 28 years ago
A conservative supermajority in the U.S. Supreme Court could spell the end of Roe v. Wade, making it once again legal for states to ban abortion. It’s what a generation of anti-abortion advocates have fought to achieve since the landmark Roe decision was passed in 1973, and they are closer now than ever before. As the U.S. Senate begins the confirmation hearings of Amy Coney Barrett, a conservative judge who is likely to join the bench by the end of the month, abortion-rights advocates are trying to once again raise the alarm about losing reproductive rights. That doesn’t necessarily mean a direct repeal of Roe; a conservative court could also end abortion access in the United States thanks to a ruling from 28 years ago that gets far less public attention.
When Planned Parenthood of Southeastern Pennsylvania v. Casey was heard by the Court in 1992, the bench looked very similar to how it will if Barrett is confirmed, with conservatives in full control. The anti-abortion restrictions at the heart of the case were a meticulously designed invitation for SCOTUS to overturn Roe. But the court — led by Justice Sandra Day O’Connor, the first woman to ever serve on the high court — came up with an alternative that weakened abortion rights without formally ending them. “The justices have blown a hole in Roe big enough to drive a Mack truck through,” Kathryn Kolbert, then co-counsel for the ACLU Reproductive Freedom Project, which litigated the case, said at the time.
The court’s decision upheld four of the five restrictions in the Pennsylvania Abortion Control Act. These included instituting parental consent for minors and requiring a 24-hour waiting period, both of which are widespread in the U.S. today. In its ruling, SCOTUS introduced the concept of “undue burden.” That standard, while not explicitly defined, is meant to weigh whether limits on abortion create a “substantial obstacle” for…
