As a follow-up to Dahlia Lithwick’s excellent recent piece about the proliferation of state anti-abortion restrictions, I have a new Prospect column arguing that while in some ways these restrictions challenge the Supreme Court doctrine, the bulk of the regulations are all too consistent with Casey:
But the victory came at a steep price. Casey, as O’Connor had long advocated, replaced Roe’s clear “trimester framework” with the opaque “undue burden” standard. That is, an abortion regulation was now unconstitutional if it unduly burdened a woman’s fundamental right to choose, and the Court held that all but the spousal notification requirement were not so burdensome as to curb rights. In theory, this subjective formulation could provide a fairly robust protection of reproductive freedom. The way the Casey plurality actually applied the standard, however, all but guaranteed that it would not. The Pennsylvania law is now a model for the proliferation of anti-abortion legislation that has followed in its wake.
Particularly problematic in Casey was the plurality’s decision to join the anti-Roe dissenters in upholding a 24-hour waiting period for women who wish to obtain an abortion. Waiting periods would seem to be the definition of an undue burden in at least two respects. First, with the justices’ assumption that women who choose to obtain an abortion may be acting impulsively or irrationally, the waiting period, like the spousal-notification provision, is inconsistent with the Court’s decisions protecting gender equality. Second, waiting periods place a particular burden on poor and rural women, for whom an additional trip to an abortion provider can be prohibitively costly or time-consuming, while urban women with flexible job schedules may have easier access.
I think the last point is particularly crucial. I could have lived with the new “undue burden” if the Court had signaled that it would pay some attention to regulations that had a disproportionately large impact on women who already had limited geographical and financial access to abortion. Instead, starting with Casey it did the opposite. I don’t think it’s a coincidence that the two regulations the Court found unconstitutional under Casey (the ban on D&X abortions and the spousal notification provision) would not have a significantly greater on poor, rural women than women similarly situated to Sandra Day O’Connor.