Mary L. Dudziak: Worried About Roe? It Already Is on Life Support Because of the Casey Decision of 1992

Mary L. Dudziak, in the San Francisco Chronicle (12-3-04):

[Mary L. Dudziak is Judge Edward J. and Ruey L. Guirado Professor of Law and History, University of Southern California Law School.]

Roe vs. Wade is in the news again, with the likelihood of at least one new U.S. Supreme Court nominee. This week, an Associated Press poll showed that 59 percent of Americans want the president's next choice for a Supreme Court justice to uphold Roe.

But as the activists and pundits debate whether changes on the court could make it more likely that Roe might be overturned, they will be arguing about a specter, because the heart and soul of Roe was actually overruled in 1992.

Roe's demise came in Planned Parenthood vs. Casey. By the time Casey was argued, enough conservatives had been added to the bench that the fate of Roe was clearly at stake. There seemed to be enough votes to overturn the case. Liberals breathed a sigh of relief when Justices Sandra Day O'Connor, Anthony Kennedy and David Souter wrote in their joint opinion that "the essential holding of Roe vs. Wade should be retained and once again reaffirmed." They believed that departing from precedent and overturning Roe would undermine the nation's confidence in the court.

Yet while supposedly maintaining the core of Roe, the Supreme Court stripped the case of its substance. Under Roe vs. Wade, the court protected broad personal liberty at the beginning of pregnancy and allowed very broad state power to ban abortion in all but the most dire circumstances in the final trimester. In the place of Roe's measured protection of abortion rights, the court inserted a new test. Only those restrictions that placed an "undue burden" on the right to choose would be questioned. In Casey itself, the only measure that ran afoul of this test was a requirement that women notify their spouses before having an abortion. This was an "undue burden," the court believed, because it could put women at the risk of violence from abusive husbands.

Other requirements that would have been unconstitutional under Roe were upheld. The states could now promote their interest in the life of an embryo from the moment of conception. They could proselytize women to not exercise their right of choice. They could make abortions more difficult and costly. The court lowered the bar dramatically. States couldn't subject women to violence. But other than the risk of a beating, would any burden be undue?