Beyond Roe, after Casey: the present and future of a “fundamental” right

Abstract

Although the US Supreme Court recently reaffirmed a woman's right to end a pregnancy before viability, many women remain unable to exercise that right because their access to abortion is limited. 83% of the counties in the nation have no abortion providers, and many women must travel hundreds of miles to obtain an abortion. In its Planned Parenthood of Southeastern Pennsylvania vs. Casey decision, the Supreme Court upheld what it felt were the central tenets of Roe vs. Wade but appointed an "undue burden" standard instead of a "strict scrutiny" standard for the courts to use when determining whether or not a state restriction is to be allowed. This means that women must prove "undue" harm from a restriction. 2 other new concepts contained in Casey are that the state has an interest in fetal life throughout a pregnancy and that the government does not have to remain neutral in an abortion case even if it did not involve the issue of funding. This means that states can try to discourage a woman's choice to have an abortion. Since Casey, the Supreme Court has refused to review several abortion cases and federal courts have taken action allowing abortion restrictions to go into effect in Pennsylvania, Utah, South Dakota, North Dakota, and Mississippi. State courts in Ohio, Oklahoma, Tennessee, Alaska, New York, and West Virginia have also heard abortion restriction cases in the past year. These restrictions involved a waiting period, criminalization, a residency requirement, a community hospital's ban on abortions, and state funding for abortion. Following the Casey decision, efforts were made to codify Roe by reintroducing the Freedom of Choice Act in Congress. During the committee process, however, the bill was amended in such a way as to make pro-choice advocates doubt that the amended version will be able to accomplish the aims of the original Act. Because the High Court ruled in Bray vs. Alexandria Women's Health Clinic that the ability of abortion clinics to prevent antichoice blockades is limited since the blockades do not violate civil rights laws, Congress is advancing a measure called "The Freedom of Access to Clinic Entrances Act" to counteract the harassment which occurs outside of the clinics. State legislatures have taken action to impose mandatory delays and biased counseling on abortion-seekers, restrict the access of young women to abortion, prohibit Medicaid funding for abortion, require unnecessary reporting regulations on the part of abortion services, and institute protective measures for reproductive rights. Although the right acknowledged in the Roe vs. Wade decision continues to exist, the struggle for women's reproductive autonomy must go forward to assure constitutional protection for the right to choose and guaranteed access to that right for all women.