Title

Un-Dueing Roe: Constitutional Conflict and Political Polarization in Planned Parenthood v. Casey,

Document Type

Article

Publication Date

2019

Abstract

Planned Parenthood of Southeastern Pennsylvania v. Casey is “the most important abortion decision you may never have heard about,” and not only because it has governed state regulation of pregnancy terminations longer than Roe v. Wade ever did. When it was decided in June 1992, Casey seemed most important for what it did not do: overturn Roe. In the quarter century since the Court’s surprise decision upholding Roe’s “core” but replacing its controversial “trimester” framework with the protean “undue burden” standard, activists, scholars, lawyers, litigants, judges, and ordinary citizens have debated and shaped Casey’s significance—not only for reproductive rights and justice, but also for social movement activism, the constitutional meanings of equality and liberty, partisan electoral strategy, and the centrality of judicial appointments to American politics.

In this regard, Casey is not simply a sequel to Roe v. Wade; it is a story about how constitutional law is made. Acting on cherished beliefs about constitutional principle, social movement activists on both sides of the abortion debate worked to shape the Constitution’s meaning—in courts of law, but also in legislatures, in the streets, and in the court of public opinion. They strategized, lobbied, and litigated; they engaged in electoral politics and direct action; they fought with energy and urgency born of deep conviction.

Advocacy for and against abortion rights informed the Supreme Court’s decision in Casey, shaping the decision’s paradoxical result. On the one hand, the ruling provided a more powerful constitutional foundation for abortion rights, foregrounding the claims to women’s equal citizenship long emphasized by feminists. On the other, Casey honored the state’s interest in potential life, and by green-lighting a wider range of abortion regulations, allowed anti-abortion activists and legislators to limit abortion access in the name of protecting women. For feminist advocates of reproductive justice, Casey’s invocation of women’s equality has fallen short of its promise, given the deleterious consequences of post-Casey abortion regulations for poor and low-income women’s access to reproductive health care. For the conservative legal movement, Casey symbolizes the paramount importance of securing judicial appointees committed to its tenets. As conservatives’ efforts reshape the Court succeed, the lessons learned from the Casey conflict continue to sculpt the contours of constitutional law and politics today.

Keywords

Reproductive rights, abortion, Supreme Court of the United States, SCOTUS, undue burden

Publication Title

Reproductive Rights and Justice Law Stories

Publication Citation

In Reproductive Rights and Justice Law Stories (Reva B. Siegel, Melissa Murray, and Katherine Shaw eds., Foundation Press 2019)

Full text not available in Penn Law Legal Scholarship Repository.

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