The Senate confirmation hearings with Brett Kavanaugh for associate justice on the U.S. Supreme Court began on Sept. 4. One of the most divisive and turbulent topics to reach the highest court in the country for the last 40 years has been the right to abortion access, set as a constitutional right in 1973 with the Supreme Court decision handed down in Roe v. Wade.
Much interest revolves around Kavanaugh’s conservative voting record, and how to interpret his statement that Roe v. Wade is “settled law.” Despite his remarks, Serena Mayeri, a professor at Penn Law School, says there is plenty in Kavanaugh’s record to suggest that “he is sympathetic to the argument that Roe was wrongly decided.” Furthermore, it is not Roe v. Wade alone that would potentially be revisited under a majority conservative Supreme Court.
Planned Parenthood v. Casey, though less famous than Roe v. Wade, is a more relevant case to set current abortion access. Roe v. Wade established the constitutional right to abortion based on the Due Process Clause of the 14th Amendment, citing an individual’s right to privacy. In the 1992 Casey decision, the Supreme Court affirmed the core holding of Roe, but broadened the states’ authority to regulate abortion.
“The legal right did not change, but it was narrowed,” says Allison Hoffman, a professor at Penn Law. “‘Undue burden’ was a test added to help determine when ‘a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus,’ to quote the Casey ruling.”
In the Casey case, Planned Parenthood challenged Pennsylvania state laws restricting abortion that were enacted in the 1980s and early ’90s.
The Casey decision replaced the trimester framework for limiting abortion with an undue burden standard on any pre-viability procedure. The ruling did strike down state laws requiring spousal notification before an abortion, citing the restriction as a “substantial obstacle” that creates an “undue burden,” and violates a woman’s constitutional right to an abortion.
What that means is that the Court is not tethered to the Roe decision to alter the landscape of abortion access across the country.
“The court can significantly limit a woman’s right to an abortion without changing the stated law at all, based on its application of the undue burden test,” explains Hoffman. “With Whole Woman’s Health v. Hellerstedt in 2016, the Supreme Court reviewed a Texas law that required abortion providers to have admitting privileges at a hospital within 30 miles of an abortion clinic, and for the clinic to meet the licensure standards of an ambulatory surgical center. The Court held these requirements constituted an undue burden.” Former Justice Anthony Kennedy, who Kavanaugh will replace if confirmed, was the deciding vote in the Hellerstedt ruling.
The Texas case was not the first case that challenged state laws restricting abortion access.
When challenged, these laws, referred to as TRAP (Targeted Regulation of Abortion Providers) laws, are held under scrutiny to determine whether or not they place an undue burden on a woman’s access to an abortion.
“The undue burden standard announced in Planned Parenthood v. Casey is malleable enough to enable the Court to be much more permissive in allowing states to enact abortion restrictions of all kinds, including, but not limited to, TRAP laws,” says Mayeri. “The Court would not have to overturn Roe directly in order to thoroughly undermine reproductive freedom; it could instead interpret Casey to allow intrusive state and federal regulations. There is reason to think, in fact, that some abortion opponents would prefer decisions that more gradually undermine abortion rights so as to avoid the backlash that would follow an outright reversal of Roe.”
By April of this year, five state legislatures had adopted 10 new abortion restrictions, and 347 measures to restrict access to either abortion or contraception had been introduced in 37 states. Current restrictions in dozens of states include mandatory counseling, a 24- to 48-hour waiting period, mandatory ultrasounds, and bans on dilation and evacuation procedures, a common abortion procedure also used following miscarriage.
The Supreme Court is now more ideologically conservative than at the time Roe was decided, and Justice Kennedy had been the deciding factor in abortion access and TRAP law cases since 1988.
Should an actual reversal of Roe happen, 22 states could immediately ban abortion. For legal cases intent on restricting women’s access to abortion by challenging what constitutes an undue burden, Kavanaugh’s stance on Roe is a moot point, Hoffman says.
“It is quite possible that Kavanaugh, if confirmed, could be more skeptical about what rises to the level of undue burden, which would, in effect, limit access to abortion in some states, even if the doctrine remains exactly the same,” she says.
