Roe v Casey and the Future of Roe

     There is a lot of rumbling about the future makeup of the Supreme Court. Chief Justice Rehnquist’s retirement is looming. The possibility of Justices Stevens and O’Connor stepping down is also on the radar. Now that President Bush has won re-election, the makeup of the Court could end up very conservative. The likely choices for Chief Justice are Thomas or Scalia. Although I believe Scalia might be a tad too polarizing, he is my favorite. All of this has pro-choice advocates fearful of the possible overturn of Roe v Wade 410 U.S. 113 (1973).

A little history
     Pre Roe various states had bans or restrictions on abortion. There was no federal ‘statement’ as to abortion rights. Roe changed all of that. In an effort by the Court to ‘resolve the deeply divisive issue of abortion’ the decision struck down a Texas statue banning the procedure.
     The decision established abortion, or the woman’s right to choose, as a fundamental right protected in the Privacy/Liberty interest of the 14th amendment. Strict scrutiny was now the standard of review for all abortion statutes; a review most statutes fail. The decision also set out a rigid standard of no state interference during the first trimester, yet acknowledged a state interest in protecting the life of the fetus after the first trimester as long as the health and life of the mother were protected. This decision did not resolve the issue; it divided the nation even further.

Roe v Casey
     Almost two decades later, along came another lesser known case, Planned Parenthood of Southern Pennsylvania v Casey and is the controlling opinion in abortion statutes today. 505 U.S. 833 (1992). The Pennsylvania statute set out conditions before an abortion could take place: parental consent for minors, with judicial exception; 24 hour waiting period; information about options; and spousal consent for married women. On its face this was in direct violation of Roe. It provided for state interference or restrictions during the first trimester.
     The Court in the opinion delivered by O’Connor, while vehemently affirming Roe, upheld most of the statute. In my opinion it is an affirmation only in words. Justice O’Connor says the three essential parts of Roe are upheld: a right of a woman to choose an abortion before viability without undue interference by the State; a confirmation of the State’s power to restrict abortion after viability; and third recognition that the State has a legitimate interest in the health of the mother and the life of the fetus at the outset of the pregnancy.
     This undercuts Roe. Here we get our first glimpse of undue interference or undue burden. Casey drops the standard of review from strict scrutiny to an undue burden test. In other words, if a requirement is too much of an obstacle to abortion then it is unconstitutional. The only provision considered an undue burden was the spousal consent requirement. Parental consent and the 24 hour waiting period were upheld along with the dissemination of information about other options.
     Justice O’Connor affirmed the State’s power to restrict abortion after viability. Roe was very rigid in a trimester scheme with only a slight mention of viability. This scheme was rejected by the Court, but they did not define viability. Without guidance, the States are left to their own definition. Although anything less than twelve weeks might not hold up, the definition of viability could vary widely in each State.
     The third essential part of Roe affirmed by the Casey Court, was not really a part of Roe at all. Roe rejected the State’s interest during the first trimester. In Roe, the mother’s interest in her liberty and choice outweighed any state interest in the life of the fetus. In Casey, the State’s regulatory power over abortions can begin at conception, and do not have to wait until the second trimester.
     Casey, while affirming the tenets of Roe, actually weakened it. It now allows for more State regulation during the entire pregnancy and lowers the standard of review for other abortion statutes. The lower the standard the more deference is given to the legislature enacting the statute.

The future of Roe
     While a new conservative Court might overturn Roe, I think that abortion rights are safe for now. To overturn, many things must happen. First, a person with a legitimate issue must bring a case in a Federal district court. It’ll then have to go to one of the 11 appellate circuits. This could take several years. After disposition in the appellate division, a writ of certiorari must be granted by the Supreme Court; meaning that the Court will hear the case.
     The granting of the writ is a toss up. It will depend on the actual makeup of the Court. The Chief Justice, and who that is, has a big say in whether it is heard. This makeup could also be affected by the Senatorial elections in 2006. If the Democrats gain any seats back, then less conservative judges will be appointed, perhaps the abortion litmus test will be applied.
     If it does become a more conservative Court, and the writ is granted, the most likely outcome of any decision is not an overturn if Roe, but a furtherance of Casey. The Court will likely undercut Roe to a greater degree by allowing further restrictions before viability. Is a definition of viability likely? Probably not. Do not look for the Court to suddenly declare a fetus a person. Giving the issue back to the States will happen gradually, if at all.