The Slow-Motion Death of Roe

Dahlia Lithwick has an excellent article about the increasing willingness of state legislatures to restrict access to abortion. The facts are depressing:

Since the start of this year, 916 measures seeking to regulate reproductive health have been introduced in 49 states. According to the Guttmacher Institute, by the end of March, 15 laws had been enacted in seven states. These laws include an expansion of the waiting period in South Dakota from 24 to 72 hours and a requirement that counseling from “crisis pregnancy centers” include scientifically flawed data on risk factors. There are new regulations in Utah and Virginia governing abortion clinics. Legislation has been introduced in 13 states requiring that women have an ultrasound procedure before having an abortion—and in seven of those states, the woman must view the fetus and listen to a detailed verbal description as well. Measures have been introduced in 17 states copying a Nebraska law banning abortion at 20 weeks, on the theory—again based on questionable medical data—that this is when a fetus can feel pain.

As Lithwick points out, some of these regulations — especially ones that ban pre-viability abortions — contradict existing law. But perhaps the bigger problem is that many of these regulations don’t unambiguously contradict the existing law. It’s understandable that Planned Parenthood v. Casey is most commonly remembered today for its refusal to overrule Roe v. Wade; given the personnel of the Court, any ruling that didn’t overrule Roe outright was a pleasant surprise. But by upholding several arbitrary abortions regulations — including waiting periods and parental involvement requirements — that place a particular burden on poor and rural women, Casey also facilitated the piecemeal dismantling of abortion rights. Even the ban on some pre-viability abortions was encouraged by the repudiation Roe’s “trimester framework.”

While Roe set out relatively clear standards for what regulations were permissible, Casey’s vacuous “undue burden” standard makes it unclear (apart from perhaps an outright ban of first-trimester abortions) what regulations are legal and which aren’t. Like any “minimalist” standard Casey is only as good as the judge applying it. And given federal courts dominated by reactionary Republican appointments, in many states we’re returning to the pre-Roe status quo in which affluent women have access to safe abortions and other women are forced to the black market.