Preserving the Core of Roe: Reflections on Planned Parenthood v. Casey

In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court backed away from affording women the highest level of constitutional protection for the abortion choice, but nonetheless promised to preserve Roe v. Wade's core objectives by instituting the undue burden standard for measuring the constitutionality of restrictions on abortion. In the years following the Casey decision, states and the federal government have added more and more restrictions on women's access to abortion. This Article asks whether Casey's undue burden standard has meaningfully protected a woman's right to an abortion. The Article begins by describing the undue burden standard's development and application, from pre-Casey decisions to the Casey joint opinion. Part III describes the Supreme Court's clarification and application of the standard in its subsequent abortion decisions. Part IV reviews the ways in which lower courts have implemented the undue burden standard, concluding that, if correctly and fairly applied, the Casey standard can provide meaningful t Associate Professor of Political Science, Richard Stockton College of New Jersey; Lecturer in Law, University of Pennsylvania School of Law (1996-2003); J.D. , Rutgers University School of LawCamden. As the Managing Attorney of the Women's Law Project, a non-profit public interest law firm in Philadelphia, Wharton represented the plaintiff-reproductive health care providers in all stages of the litigation in Planned Parenthood v. Casey, including the proceedings that took place before the United States Supreme Court, where she served as co-lead counsel with Kathryn Kolbert. ft Senior Staff Attorney, Women's Law Project; Adjunct Professor of Law, University of Pittsburgh School of Law; Lecturer in Law, University of Pennsylvania School of Law (1997-2002); J.D. , Temple University School of Law. Frietsche was the Deputy Director of the ACLU of Pennsylvania and served as its state lobbyist while the Pennsylvania abortion restrictions challenged in Planned Parenthood v. Casey were being considered by the Pennsylvania General Assembly. In 1992, she joined the legal team representing the plaintiff-reproductive health care providers in Planned Parenthood v. Casey. ttt Senior Research Administrator, Annenberg Public Policy Center, University of Pennsylvania; J.D. , Temple University School of Law. As staff attorney with the ACLU's Reproductive Freedom Project in New York, Kolbert presented the oral argument to the Supreme Court and represented the plaintiff-reproductive health care providers in all other stages of the litigation in Planned Parenthood v. Casey. Kolbert participated in the legal team of nearly every abortion case before the Supreme Court from 1986 to 1997 and co-founded the Center for Reproductive Rights. The authors are deeply grateful for the support and feedback we received from Seth Kreimer and Nancy Rosoff and for the superb and tireless research assistance of Jennifer Rellis. Thanks also to students Sasha Shapiro, Danielle Berndt, Dana Butia, Jessica Warren, and Kara O'Bryon for the research assistance they provided. Copyright © 2006 by the Yale Journal of Law and Feminism Yale Journal of Law and Feminism protection for the abortion right. The Article ends with recommendations for solidifying and clarifying the undue burden standard, which will ensure that Roe's core is preserved as promised in Casey. I. IN TRO D U CTION . 3 19 II. THE MEANING OF THE UNDUE BURDEN STANDARD: ITS EVOLUTION IN C A SE Y . 32 3 A. The Journey to the Supreme Court in the Casey Litigation . 324 B. The Casey Joint Opinion: Preserving Protection for the Right to Abortion via a Newly Minted Undue Burden Standard . 329 C. The Joint Opinion's Application of the Undue Burden S tan dard . 332 D. The Casey Concurring and Dissenting Opinions . 340 III. POST-CASEY SUPREME COURT UNDUE BURDEN JURISPRUDENCE . 342 A . M azurek v. A rm strong . 343 B . Stenberg v. Carhart . 346 C. Ayotte v. Planned Parenthood of Northern New England . 349 D. Post-Casey Insights from Individual Justices . 351 IV. LOWER COURTS' APPLICATION OF THE UNDUE BURDEN STANDARD . 353 A. Implementation of the Effects Prong . 354 1. Inconsistency in the Standard for Facial Challenges . 354 2. The Special Difficulties of Challenging Provisions Similar to Those Upheld in Casey: Mandatory Waiting Periods and Counseling Provisions . 357 3. Challenges to Laws Regulating the Medical Practice of A bortion Providers . 367 4. Challenges to Abortion Procedure Bans . 374 B. Implementation of the Purpose Prong . 377 V . C ON CLU SION . 385 [Vol. 18:2 Preserving the Core of Roe