The Greatest Trick The Supreme Court Ever Pulled Was Convincing The World Roe v. Wade Still Exists

A Jurisprudence Of Doubt

Roe was a complicated opinion that is difficult to summarize in a few short sentences, but the gist of it is this: the Court recognized that women have a robust right to an abortion, especially in the first trimester of pregnancy, but that right becomes more qualified as the pregnancy progresses. Nevertheless, the Court recognized abortion as a “fundamental” right — meaning that any law abridging the right would be treated as preemptively unconstitutional. Moreover, while the justices did lay out a framework for when this presumption could be overcome, that framework provided few opportunities to do so during the earliest stages of the pregnancy. During the first trimester, “the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.”

Nineteen years later, the justices largely abandoned Roe‘s framework. Though the Court’s 1992 opinion in Planned Parenthood v. Casey purported to retain Roe‘s “essential holding,” the opinion’s authors went out of their way to express their discomfort with this result. Despite “whatever degree of personal reluctance any of us may have,” the Court wrote in an unusual joint opinion signed by Justices Sandra Day O’Connor, Anthony Kennedy and David Souter, “the stronger argument is for affirming Roe’s central holding.”

Yet, while Casey did not strip women entirely of the rights they gained in Roe, it did qualify those rights significantly. The right to an abortion is no longer treated like a “fundamental” right under Casey. Nor do women in their first trimester of pregnancy enjoy the same robust protection that they once did under Roe. Indeed, where Roe proclaimed that such women enjoy a right to terminate their pregnancies “free of interference by the State,” Casey said the opposite — “it is an overstatement to describe [the abortion right] as a right to decide whether to have an abortion ‘without interference from the State.’”

Under Casey, a new standard would prevail. States are now free to regulate abortion so long as these laws do not impose an “undue burden” on the right to choose.

If you’re confused by the vagueness of this standard, you aren’t the only one. And the Court’s description of what constitutes an “undue burden” does little to clear up this confusion. “An undue burden exists, and therefore a provision of law is invalid,” according to Casey, “if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Abortion regulations would no longer be treated as preemptively unconstitutional, but instead would be weighed according to this highly flexible standard by hundreds of judges throughout the country.

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