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Roe v. Wade/Planned Parenthood v. Casey

By: David Ostrowsky

Over the past few weeks, in light of the Supreme Court case Dobbs v. Jackson Women’s Health Organization, hearing arguments over Mississippi seeking to ban abortions after fifteen weeks of pregnancy, the landmark 1973 Roe v. Wade case has come to the forefront of our attention. For the sake of understanding historical context, the following is a brief background to the case that laid the groundwork for the current Supreme Court precedent on abortion rights … and may get overturned by the summer.

For one, there was no actual person named “Roe.” There was, however, a young impoverished Texas woman by the name of Norma McCorvey who wanted to terminate her pregnancy (she had already given up two children for adoption), but couldn’t in her home state where abortion was only legal when a woman’s life was endangered. Unlike more privileged American women with the financial resources to travel to countries where abortion was legal or pay an exorbitant fee to a domestic physician willing to secretly perform the procedure, hundreds of thousands of women such as McCorvey often opted for illegal (and highly risky) “back-alley” abortions. In McCorvey’s case, she was unable to undergo an illegal procedure, which prompted her to seek legal representation.

The subsequent 1970 trial held at a Texas district court pitted McCorvey (referred to in court documents as “Jane Roe”) against Henry Wade, the district attorney of Dallas County, where McCorvey resided. While the court ruled that Texas’ abortion ban was illegal on grounds that it violated one’s constitutional right to privacy, Wade appealed to the U.S. Supreme Court. Eventually, on January 22, 1973—well after McCovey delivered her child whom she later put up for adoption—the Supreme Court, in a 7-2 decision, struck down the Lone Star State’s law criminalizing abortion. Thus, American women, by virtue of their right to privacy rooted in the Due Process Clause of the Fourteenth Amendment, were entitled to terminate pregnancy in the first trimester, irrespective of whether or not their health was jeopardized and without undue interference by the State. It was decided that the state could regulate abortion in the second trimester and ban abortion in the third trimester, except when a woman’s well-being was endangered – balancing the privacy rights of the individual against the government’s compelling interest to protect the health and safety of the mother and the life of the fetus.

Which brings us to the lesser known, but equally significant, case of Planned Parenthood v. Casey (1992). Nineteen years after Roe, the Supreme Court reaffirmed the constitutional right to abortion, but also implemented a new standard for analyzing abortion restrictions. Whereas Roe v. Wade analyzed abortion rights within a trimester framework, Planned Parenthood v. Casey overturned said parameters in favor of a viability analysis, effectively permitting states to implement restrictions applicable to the first trimester of pregnancy.  Translation: more conservative courts had new opportunities for limiting abortion protections.

While the Supreme Court still maintained it was dedicated to “the right of the woman to choose to have an abortion before viability” the ruling permitted states to regulate that choice at any juncture as long as they did not impose an “undue burden” on access to abortion services. Essentially, the Planned Parenthood v. Casey decision permitted abortion regulations unless someone could prove that these regulations created “undue and significant burdens” on a woman’s ability to undergo an abortion. Broadly speaking, regulations creating an undue burden or significant obstacle to women exercising their right to abortion prior to fetal viability were thus unconstitutional, while restrictions that did not create such an obstacle were constitutional.

Roe v. Wade established the constitutionality of the right to abortion over fifty years ago, and Planned Parenthood v. Casey laid out the framework by which abortion restrictions have been reviewed for the last thirty years. To be clear, the impending Supreme Court decision does not aim to outlaw abortions nationwide. But in certain states, the precedents established in Roe v. Wade could be further undermined by more stringent restrictions being implemented on a woman’s ability to abort her pregnancy.