In Justice Samuel Alito’s released draft opinion overturning Roe v. Wade, he frequently mentions another Supreme Court case pivotal to abortion rights history: Planned Parenthood of Southeastern Pennsylvania v. Casey.1 In this article, I will provide a quick overview of the case, and I will also focus on its historical context, paying special attention to the state of abortion in the period between Roe and Casey.
The Case
Decided in 1992, Planned Parenthood v. Casey reaffirmed a women’s right to an abortion as part of a series of cases following the Roe v. Wade decision in 1973.2 However, it did modify a key component of Roe’s framework in evaluating abortion laws; it replaced the “strict scrutiny standard” with an “undue burden” standard.3
The Pennsylvania Abortion Control Act of 1982—the subject of the case—enumerated five provisions for a woman seeking an abortion: (1) her informed consent is required and “certain information” must be provided to her 24 hours before the procedure, (2) minors seeking an abortion must have the informed consent of a parent, (3) married women must notify their husbands of the abortion, (4) these requirements do not apply under certain “medical emergencies,” defined by the act, (5) facilities offering abortion service must fulfill reporting requirements.4 Casey overturned the provision requiring notification of the spouse, arguing that the requirement violated the due process clause of the 14th Amendment, but it upheld the other four.5 The “undue burden” standard emerged to evaluate the legality of each of these provisions. According to the decision, the state is prohibited from establishing “substantial obstacles” to a woman’s access to an abortion previability.6 This created a less rigorous test for laws restricting abortion before the fetus could be considered viable. With the “undue burden” standard, Roe’s protections of abortion rights weakened, allowing many states to pass more restrictive abortion laws.78
Abortion From Roe to Casey
After the Supreme Court legalized abortion with Roe v. Wade, abortion clinics opened across the United States, and the number of legal abortions increased dramatically to over 1 million by 1975.9 A declining abortion mortality rate encouraged physicians to establish abortion services safer than those underground abortions during the illegal era.10 However, legal abortion was not accessible to everyone. Poor women of color still faced significant obstacles to obtain legal abortions: cost, distance, language barriers. While the percentage of women of color who received abortions did increase after Roe, white women still enjoyed greater access, forcing nonwhite women to resort still to self-induced of underground abortions, often with devastating consequences.11
In response to legalization, antiabortion advocates sought to challenge Roe. The National Conference of Catholic Bishops formed a committee to support antiabortion Republican candidates and push for a pro-life constitutional amendment.12 In 1980, Harris v. McRae upheld the Hyde Amendment, preventing the government from using public funds to support abortion services for poor women.13 Advances in fetal imaging technology emphasized notions of fetal personhood that undergirded the growing antiabortion movement.14 In 1989, Webster v. Reproductive Health Services used the changing scientific distinctions of viability to decide that states can “express interest in fetal life before viability” and enact any regulations in line with that preference.15
Abortion opponents resorted to other tactics outside the legal arena. Some vandalized clinics, harassed and threatened women seeking abortions and clinic employees, and even killed physicians.16 One main strategy, however, centered on the fetus, intending to frame abortion as a horrific act of murder against the unborn child. A particularly shocking example occurred in 1988, when antiabortion activists stole fetal remains from abortion clinics; they reconstituted the body parts to resemble the body of a “baby” and even conducted burials.17 In response to the rise in resistance to abortion, many abortion providers were no longer willing to continue their services. On the other hand, several clinics tried to fight back against such protests, but success often relied on the willingness of local law enforcement and legislators to support them.18
The antiabortion activism of the 1980s impacted the way abortion was viewed by many. In the wake of Roe v. Wade, the proliferation of abortion clinics and emergence of abortion providers as established members of the medical community promoted an optimistic outlook for the future of abortion. However, after years of waging violence against abortion clinics, discrediting providers, and emphasizing fetuses as victims, abortion became even more stigmatized by the end of the 1980s.19 This hostile climate against abortion set the stage for more court cases—like Casey—that would challenge and ultimately weaken Roe’s protections.
Footnotes
1. Dobbs v. Jackson Women’s Health Organization, 28, N.A., U.S. (2022).
2. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992).
3. Rickie Solinger, Reproductive Politics: What Everyone Needs to Know (Oxford: Oxford University Press, 2013), 32.
4. Supra note 2.
5. Supra note 3.
6. Supra note 2.
7. Supra note 3.
8. Janet Benshoof, “Planned Parenthood v Casey: The Impact of the New Undue Burden Standard on Reproductive Health Care,” JAMA 269, no. 17 (1993): 2249.
9. Johanna Schoen, Abortion After Roe (Chapel Hill: The University of North Carolina Press, 2015), 24.
10. Ibid.
11. Ibid, 35.
12. Linda Greenhouse and Reva Siegel, “Before (and After) Roe v. 14. Wade: New Questions about Backlash,” Yale Law Journal 28, (2011): 2028– 2087.
13. Loretta Ross and Rickie Solinger, Reproductive Justice: An Introduction (Oakland: University of California Press, 2017), 80.
14. Rickie Solinger, Reproductive Politics: What Everyone Needs to Know (Oxford: Oxford University Press, 2013), 16.
15. Supra note 9 at 12-13.
16. Lena Lennerhed. “Review of Abortion after Roe, by Johanna Schoen.” Bulletin of the History of Medicine 90, no. 4 (2016): 750-751.
17. Supra note 9 at 155-160.
18. Ibid.
19. Supra note 9 at 245-247.