By Kathy Greenier, Reproductive Freedom Project Director
When the U.S. Supreme Court established in Roe v. Wade that women have a fundamental right to abortion, it helped to ensure that women could control their own lives. This was a huge victory for women’s equality – by ensuring that women could control their own reproductive lives, the Court helped ensure that women could control their economic and social future. Then came June 29, 1992. Twenty-three years ago today the Court decided Planned Parenthood of Southeastern Pennsylvania v. Casey. While Casey reaffirmed the right to abortion and the importance of abortion access to women’s ability to control their own lives, it also created openings for opponents to establish laws restricting abortion access. Casey set the stage for a wave of laws restricting abortion access that have swept across states in recent years, including in Virginia (click here to see a timeline of laws in Virginia that restrict access to abortion). These laws chip away at a woman’s constitutional right to abortion, and thus undermine her ability to control her own future.
How did Casey both affirm the right to abortion and restrict access to it? Usually, the Court gives the highest level of protection to fundamental rights, but in Casey the Court set a new standard to judge the constitutionality of abortion restrictions. Under the new standard, state restrictions of abortion prior to fetal viability are constitutional unless the restriction is an “undue burden,” meaning the restriction has the “purpose or effect” of placing a “substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
The new “undue burden” standard had an immediate and disastrous effect. Using the new test, the Court reversed several prior decisions and upheld Pennsylvania’s law compelling doctors to provide information designed to discourage abortion and requiring a woman wait 24 hours before receiving abortion services, despite the fact that evidence showed the mandatory waiting period increased costs and delays for a woman seeking an abortion, particularly a woman with fewer financial resources.
If laws requiring waiting periods and compelling doctors to give women materials that dissuade abortion sound familiar, you’re right – these laws have swept the country the past few years. Today, 35 states require that women receive counseling before an abortion is performed, and 26 states require women to wait a specified amount of time—most often 24 hours— between the counseling and the abortion procedure. According to Casey, a state may use the power of its laws to express a preference for childbirth over abortion, meaning that the state can use laws as a mechanism to “express profound respect for the life of the unborn,” as long as the laws are not an undue burden. That was not okay before Casey.
Allowing the state to express a preference for childbirth over abortion perpetuates stereotypes about the proper role for women. And, making it harder to challenge the constitutionality of abortion restrictions undermines the dreams and desires of women who want to pursue other roles. Becoming a parent is a role some women choose, but it is not the only role women should choose, even for those who get pregnant. Women want and need to be able to plan their lives, to plan whether and when to become a parent, so that they can plan when and how to get an education, pursue career goals, and/or best care for any children they already have. Without access to abortion, a woman’s ability to pay rent, go to school, provide for their children, or run a company are all affected.
As we mark this anniversary of Casey, we remember its reaffirmation of women’s ability to control their lives, but also the standard it established to undermine this basic right. We remember its powerful, positive message – “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives,” but also the 23 year (and counting) fight it allowed to ensure that women can realize this right. Recognizing abortion as essential to women’s equality is the message we must spread now – to create a new, better future for women without abortion restrictions. It’s time to embrace Casey’s message and dismiss its restrictions.
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