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.
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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 women seeking care, therefore violating their constitutional right to choose pregnancy termination. Undue burden is what led to the striking down of the fifth restriction: the spousal notification provision. The court also established in Casey that the state has an interest in protecting fetal life — which is something that hadn’t been fully recognized by Roe — and therefore it could take some measures to encourage patients to continue their pregnancies instead of ending them. To this day, many are unaware of how significant Casey’s ruling was: While Roe established a woman’s right to choose, it is Casey that has determined abortion access since then.
“Casey affirmed that abortion can’t be banned previability, and the court noted that that was fundamental to Roe to recognize protection for abortion in the Constitution,” Amy Myrick, senior staff attorney at the Center for Reproductive Rights, said. “But beyond that, Casey changed the framework for evaluating abortion restrictions.”
This shift has allowed for abortion opponents to mount relentless attacks against reproductive health care. Since 2011, states have passed more than 400 abortion restrictions, according to the Guttmacher Institute. Many of these laws and policies have faced legal challenges throughout the years, such as the many bans on the most common second-trimester procedure, known as dilation and evacuation (D&E); increasingly onerous restrictions on minors seeking abortions; and the requirement that patients undergo mandatory ultrasounds. It takes a while for legal challenges to come up through the SCOTUS pipeline, and anti-abortion advocates have been betting one of them will spell the end of Roe. But even if a carefully designed challenge was brought before a conservative supermajority once again, the court could choose not to overturn the 1973 decision outright. Barrett herself has endorsed this possibility. “I don’t think the core case — Roe’s core holding that, you know, women have a right to an abortion — I don’t think that would change,” she said in 2016. “But I think the question of whether people can get very late-term abortions, you know, how many restrictions can be put on clinics — I think that would change.”.
Even though some conservative justices are personally anti-abortion — from Chief Justice John Roberts to the most junior member of the court, Justice Brett Kavanaugh — they are also deeply aware of how overturning a 50-year-old precedent at a time where support for abortion rights is at its highest could impact the perception of the integrity of the court.
While Roe established a woman’s right to choose, it is Casey which has determined abortion access since then
The alternate route, then, is to chip away at abortion rights by keeping it legal but upholding even more restrictions — making Roe a right only on paper, not in practice. We’ve seen the effect of this dynamic play out already in large swaths of the country: Abortion deserts, or areas where patients have to travel 100 miles or more in order to access care, are prevalent in all regions of the U.S. but the Northeast. Legislation such as the 1976 Hyde Amendment, which prohibits the use of federal funds to pay for abortions in most cases, has meant pregnancy terminations have been often inaccessible for low-income people and patients dependent on other federal health insurance programs — such as military personnel and inmates in federal prison — for nearly half a century unless they can pay out of pocket.
An indication of the reluctance to overturn Roe outright can be found in how Kavanaugh approached June Medical Services v. Gee this summer. The Louisiana law at the heart of the case was struck down because it required abortion providers to have hospital admitting privileges, and it was nearly identical to a Texas measure that was struck down in 2016 by the Supreme Court on Whole Woman’s Health v. Hellerstedt. “Kavanaugh didn’t even want to decide the case on the merits, he wanted to kick it back down to the lower court,” Mary Ziegler, professor at Florida State University College of Law and author of Abortion in America: A Legal History, Roe v. Wade to the Present, said. “He didn’t think the law was unconstitutional pretty clearly, which was not surprising given how he likely feels about abortion rights. But if he didn’t want to deal with June, that doesn’t make it likely he’s going to go writing a dramatic opinion overturning Roe. In the near term, we’re still probably mostly looking at something slow.”
The slow-motion dismantling of legal abortion would likely enrage both anti-abortion advocates (who want Roe explicitly overturned) and abortion-rights advocates (who believe a right without access is not a right). At the same time, though, it would — at least in theory — preserve the idea of the integrity of the court.
This path is only possible because of the standards created by Casey.
We can’t predict exactly how justices will behave, but we know there are several paths to upholding more and more restrictions. Straight abortion bans, like the recent wave of “fetal heartbeat” bans, are unlikely to take hold any time soon because they restrict abortion before viability — which both Roe and Casey explicitly prohibit. But the court could choose to narrow what “undue burden” means, making it harder for reproductive rights advocates to prove that legislation is indeed impacting patients’ ability to seek care.
“In Casey, they said that the benefits of the law have to outweigh the burdens it imposed. Chief Justice Roberts has signaled that he doesn’t believe that that’s an approach that’s appropriate,” Jennifer Dalven, director of the ACLU Reproductive Freedom Project, said. “He thinks as long as you can come up with some reasonable reason — even a tiny little benefit — you may have to show very significant obstacles.”
Defining how significant these obstacles are is entirely subjective, a fact that anti-abortion advocates will exploit as they argue before a conservative supermajority. “Most abortion restrictions do have really serious impacts on access,” Myrick, from the Center for Reproductive Rights, said. “But sometimes it can be harder to demonstrate that they’re closing off access completely because patients and providers will jump through all kinds of hoops to retain access to medicine even if it is extremely burdensome.”
Another way to limit access to abortion care is for the court to be more open to the “scientific uncertainty” argument established by Casey. This has since allowed lawmakers to regulate abortion more strictly if there’s any “scientific uncertainty” of how fetal life is being impacted. This framework set the stage for the 2007 ruling on Gonzales v. Carhart, which upheld the Bush administration’s ban on “partial-birth” abortion. The legislation made intact dilation and extraction (D&X) illegal. Abortion-rights advocates fear that, for example, a challenge to D&E would have a similar conclusion, limiting what type of care providers can offer people beyond the first trimester. “You can kind of create scientific uncertainty if you find your own experts and find people who will say this [procedure] is unnecessary,” Ziegler said. “Chief Justice Roberts has sort of telegraphed that he’s interested in that [approach] again.”
Diluting the protections of Casey, and by extension Roe, could impact other aspects of reproductive health care, such as contraception and assisted reproductive treatments. Barrett’s interpretation of in vitro fertilization has come under scrutiny for this very reason. (In 2006, she publicly supported an organization that called for criminalizing the discarding of unused embryos in the course of the IVF process.)
“What does the state mean by abortion? Because some anti-abortion groups have long argued — and you probably remember this from Hobby Lobby — that birth control and IUDs are abortion and not birth control,” Ziegler said. “What does it mean if the doctor prescribes the birth control pill or IUDs? What does it mean for in vitro fertilization?”
Abortion-rights supporters fear that attacking pregnancy terminations outright is just the beginning. With Barrett on the bench, the Supreme Court could continue to erode access to contraception and other key women’s rights. We saw a preview of that possibility this summer when the Court upheld the Trump administration’s rules on Little Sisters of the Poor v. Pennsylvania, which allows private employers to deny women birth control coverage under the Affordable Care Act if they have moral or religious objections.
To end legal abortion at the federal level and send the question of legality back to the states, the court would need to overturn both Roe and Casey. But because of the way Casey is set up to uphold a woman’s right to abortion, a likely scenario is that the court will continue to use its framework to erode access to care. “Going the more incremental route allows anti-abortion forces to make use of the undue burden idea to limit access to abortion, and also make the idea of a right to choose a joke,” Ziegler said. “If in theory there still is an abortion right and no one can get an abortion, there’ll eventually be a lot less resistance to overturning Roe, because it will stop meaning anything for most people.”
Whether Roe is immediately overturned or it continues to be slowly hollowed out, it’s a win-win situation for the anti-abortion camp. They’ve waited nearly half a century to end legal abortion in America. What’s a few more years?