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New: Casey at 20 Shows Progress Despite Judicial Hitch

Friday will mark the 20th anniversary of the Supreme Court’s Planned Parenthood v. Casey decision. This case involved the constitutionality of several provisions included in Pennsylvania’s Abortion Control Act and marked the most recent time that the Supreme Court reconsidered its holdings in Roe v. Wade.

When the Supreme Court refused to reverse Roe, it was a substantial setback for the anti-abortion movement. Still, the 20 years since Casey are a story of legislative, political, social and legal progress for the movement — progress that has occurred not only because of perseverance but also because the movement shrewdly used legal openings granted to them through the Casey decision.

The movement has devoted few resources to chronicling its own history, so many people forget how much it had invested in the Casey decision. During the early 1980s, the 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, considering the fact that the Republicans controlled both the presidency and the Senate. Indeed, from 1980 to 1992, Presidents Ronald Reagan and George H.W. Bush appointed five new Supreme Court justices. As such, a reversal of Roe v. Wade appeared not just plausible, but likely. That is what made the Supreme Court’s Casey decision so disappointing.

Beyond Casey, there existed plenty of reasons for pessimism. 1992 saw the election of the first president publicly committed to keeping abortion legal. There was serious discussion about removing the abortion plank from the Republican Party’s platform, and governors who supported abortion rights such as Christine Todd Whitman of New Jersey, William Weld of Massachusetts and Pete Wilson of California were heralded as the future of the Republican Party.

Even worse, the anti-abortion side was losing 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 steadily increasing since the 1970s. As a result, there were good reasons to question the long-term political viability of the movement.

However, the Casey decision contained a silver lining. Even though the Supreme Court did not overturn Roe v. Wade, it abandoned the trimester framework invented in Roe and adopted a doctrine of “undue burden.” This allowed for state regulation of abortion as long as the regulation did not impose an “undue burden” on the woman seeking an abortion.

Under this new standard, the Casey decision upheld most of the provisions included in Pennsylvania’s Abortion Control Act, including the parental consent provision, the reporting requirements, the waiting period and the informed consent language. Only the spousal notification requirement was struck down.

The constitutional protection Casey granted these laws, coupled with gains in numerous state legislatures since 1992, has led to a substantial increase in the number of state-level laws restricting abortion.

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. The number of states with abortion clinic regulations has increased from 21 to 30. More importantly, after Casey, many states strengthened existing restrictions. 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.

This incremental strategy has paid a variety of dividends. There is a growing body of peer-reviewed research showing that public funding restrictions, parental involvement laws and properly designed informed consent laws all reduce abortion rates. Furthermore, the ongoing debates about these incremental laws — many of which enjoy broad public support — have succeeded in reframing the abortion debate on more favorable terms.

Indeed, many of the most-worrisome trends of the early 1990s have reversed themselves. It is now Democrats who appear more conflicted over their party’s platform on abortion. The governors who supported abortion rights and were once thought to be the future of the Republican Party have vanished from the political scene.

Additionally, the anti-abortion position is gaining public support. A 2009 Gallup poll showed that, for the first time, a majority of Americans described themselves as “pro-life.” A May Gallup poll 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 cause.

At some point, 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 the court will continue to allow for greater state-level regulation of abortion. It will be up to the next generation of activists to effectively use 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.

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