Casey at twenty: pro-life progress despite a judicial setback
July 17, 202 (thePublicDiscourse.com) - Earlier this summer we marked the twentieth anniversary of the Supreme Court’s decision in Planned Parenthood v. Casey. Public Discourse published insightful essays by Michael Paulsen and William Saunders criticizing the Supreme Court’s ruling.There is certainly much for social conservatives and others to criticize about the jurisprudence used in Casey. However, even though the decision was a setback, the past 20 years have still been a story of legislative, political, and even some jurisprudential progress for the pro-life movement.This progress has occurred not only because of the perseverance of pro-lifers, but also because pro-lifers shrewdly used legal openings granted to them through the Casey decision.
The pro-life movement has devoted few resources to chronicling its own history, so many people forget how much effort pro-lifers invested in the Casey decision. During the early 1980s, pro-life political strategy shifted from enacting a constitutional amendment to changing the composition of the Supreme Court. At this time, a more conservative Supreme Court seemed almost inevitable, given that Republicans controlled both the presidency and the Senate. Indeed, between 1980 and 1992, President Reagan and President Bush appointed a total of five new Supreme Court justices. As such, a reversal of Roe v. Wade appeared not just plausible, but likely. That set-up is what made the Supreme Court’s Casey decision so disappointing to the pro-life movement.
At the time of Casey, pro-lifers had plenty of other reasons for pessimism. The year 1992 saw the election of the first president publicly committed to keeping abortion legal. Republicans seriously discussed removing the pro-life plank from the party platform, and pro-choice governors like Christine Todd Whitman, William Weld, and Peter Wilson were considered the future of the party. Even worse, pro-lifers lost ground in the court of public opinion. Gallup surveys found that the percentage of people who felt abortion should be “legal under any circumstances” had been slowly but steadily increasing since the 1970s. These circumstances made it easy to question the long-term political viability of the pro-life movement.
Despite discouraging political setbacks, the Casey decision did contain silver linings for pro-life law and strategy. Even though the Supreme Court did not overturn Roe v. Wade, it abandoned the trimester framework instituted in Roe and instead adopted a doctrine of “undue burden.” This allowed for state regulation of abortion so long as the regulation did not pose an “undue burden” to the woman seeking an abortion. As a result, the Casey decision upheld most of the provisions included in Pennsylvania’s Abortion Control Act including the parental consent law, the reporting requirements, the waiting period, and the informed consent law. Only the spousal notification requirement was struck down.
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The constitutional protection Casey granted these pieces of legislation, coupled with pro-life gains in numerous state legislatures, has led to a substantial increase in the number of state level pro-life laws. Americans United for Life reports that since 1992, the number of states with parental involvement laws has increased from 20 to 38. The number of states with informed consent laws has increased from 18 to 33. Finally, the number of states with abortion clinic regulations increased from 21 to 30. More importantly, after Casey, many states strengthened existing pro-life laws. In particular, several states improved their informed consent laws by including more information about health risks, fetal development, and sources of support for single mothers.
In recent years, pro-lifers have pursued some different legislative strategies. For instance, pro-lifers have made good use of the increased scrutiny that Planned Parenthood is receiving. Audits of Planned Parenthood affiliates in several states demonstrate a consistent pattern of overbilling and abuse involving Medicaid funds. Furthermore, LiveAction videos have shown that Planned Parenthood employees are unwilling to enforce parental-involvement laws and unwilling to report statutory rape, but willing to assist a pimp who prostitutes minors. As a result, nine states have cut Planned Parenthood funding from their state budgets, saving taxpayers over 61 million dollars.
Additionally, 21 states have included provisions in their informed consent bills to give women information about the availability of ultrasound services prior to the abortion. Six of these states mandate an ultrasound for each abortion and require the abortion provider to offer the opportunity to view the image. Also, 27 states passed homicide laws that recognize the unborn as victims. Technological developments prompted five states to ban the use of telemedicine for the provision of abortion medication. However, the most popular pro-life legislation during the past two years has been fetal-pain laws. Since 2011, six states—Nebraska, Idaho, Indiana, Kansas, Oklahoma, and Alabama—have enacted these laws, which ground protection for unborn children after 20 weeks on medical evidence that they can feel pain starting at that point of gestation.
These fetal-pain laws are good pro-life strategy for two reasons. First, it is just as politically difficult today for pro-choice groups to support abortion at a late stage in pregnancy, especially when there is evidence that the unborn can feel pain, as it was to defend partial-birth abortion in the 1990s. Second, fetal pain laws can provide another legal justification for protecting the unborn. Supreme Court jurisprudence has only allowed states to protect the unborn after viability. Of course, since these viability protections must also broadly exempt situations where the mother’s life is endangered physically or emotionally, they are very weak. However, if fetal-pain laws receive constitutional protection, they may give the unborn greater legal standing than do current viability protections, and thus pave a path for greater legal protections in the future.
Overall, pro-lifers’ incremental strategies since Casey have paid a variety of dividends. A growing body of peer-reviewed research shows that public funding restrictions, parental involvement laws, and properly designed informed consent laws all reduce abortion rates. Furthermore, the ongoing debates about these incremental steps—many of which enjoy broad public support—have successfully reframed the abortion debate in terms favorable to the pro-life movement. Indeed, many surveys show that the pro-choice position’s consistent gains came to an abrupt halt when the partial birth abortion ban became a salient issue in the mid 1990s.
In fact, several of the trends that concerned pro-lifers in the early 1990s have reversed themselves. It is now Democrats who appear more conflicted about their party’s platform on abortion. The pro-choice governors who were once thought to be the future of the Republican Party have vanished from the political scene. Additionally, the pro-life position is gaining public support, as a 2009 Gallup poll showed that for the first time, a majority of Americans describe themselves as “pro-life.” Additionally, a Gallup Poll taken this May registered the lowest-ever percentage of Americans who identify themselves as “pro-choice”—41 percent. Most importantly, the number of abortions is steadily declining. Since 1992 the number of abortions performed in the United States has declined by about 20 percent. All of this bodes well for the future of the pro-life movement.
At some point in the future, the Supreme Court will reconsider its holdings in both Roe and Casey. Predicting judicial rulings is far from an exact science. The Supreme Court may well decide to overturn Roe v. Wade. However, even if Roe is upheld, there is a good chance that the Supreme Court will continue to allow for greater state level regulation of abortion. It will be up to the next generation of pro-life activists to effectively utilize future legal openings to advance the culture of life.
Michael J. New is an Assistant Professor at the University of Michigan–Dearborn and an Adjunct Scholar at the Charlotte Lozier Institute. This article reprinted with permission from thePublicDiscourse.com