Roe 80% Overturned in Casey (1992)

[Jackson Lennock]

I recognize that there was a thread on overturning Roe in Casey a year ago. What if the Court had done the second closest thing, overturning it for the most part but leaving just a little bit left?

In Webster v. Women's Reproductive Services (1989), a majority agreed it wanted to roll back Roe but disagreed on how far. Scalia said go all the way. O'Connor said save it for another day. Justice Rehnquist, joined by Kennedy and White, abandoned the viability rule and judicial scrutiny of abortion regulations in the second trimester. How abortion restrictions would be viewed in the first trimester was up in the air. In Rust v. Sullivan, a majority comprised of Rehnquist, White, Scalia, Kennedy, and Souter appeared to apply Webster's plurality as the governing standard. Lower Courts between Webster and Casey were unsure of whether the "Undue Burden" rule of Justice O'Connor's opinions throughout the 1980s or the Webster framework (which itself was unclear on what exactly was required) governed.

White and Rehnquist had initially been inclined to concur in Roe v. Wade on narrower grounds - that Texas's law had too few exceptions. Their dissent was that the lower Court and majority had argued for something broader, and so they could not uphold the lower court's decision.

Byron White's Doe v. Bolton Dissent (joined by Rehnquist):

It is my view, therefore, that the Texas statute is not constitutionally infirm because it denies abortions to those who seek to serve only their convenience, rather than to protect their life or health. Nor is this plaintiff, who claims no threat to her mental or physical health, entitled to assert the possible rights of those women whose pregnancy assertedly implicates their health. This, together with United States v. Vuitch, 402 U. S. 62 (1971), dictates reversal of the judgment of the District Court.

Chief Justice Burger appears to have argued that was the basis of his vote in Roe v. Wade. Texas's law needed exceptions for Life, Physical Health, Mental Health, Rape, Minority, and Incest (ergo, what was legal under Georgia's law in Doe v. Bolton). How 'necessary' an abortion would be for purposes of risk to the woman's life, health, or mental health were to be left to the good faith judgment of a doctor.

I agree that, under the Fourteenth Amendment to the Constitution, the abortion statutes of Georgia and Texas impermissibly limit the performance of abortions necessary to protect the health of pregnant women, using the term health in its broadest medical context. See United States v. Vuitch, 402 U. S. 62, 402 U. S. 71-72 (1971). I am somewhat troubled that the Court has taken notice of various scientific and medical data in reaching its conclusion; however, I do not believe that the Court has exceeded the scope of judicial notice accepted in other contexts.

In oral argument, counsel for the State of Texas informed the Court that early abortion procedures were routinely permitted in certain exceptional cases, such as nonconsensual pregnancies resulting from rape and incest. In the face of a rigid and narrow statute, such as that of Texas, no one in these circumstances should be placed in a posture of dependence on a prosecutorial policy or prosecutorial discretion.

The 1980 Supreme Court decision Harris v. McRae also takes a surprisingly ambivalent approach on what the core holding Roe was.

Because even the compelling interest of the State in protecting potential life after fetal viability was held to be insufficient to outweigh a woman's decision to protect her life or health, it could be argued that the freedom of a woman to decide whether to terminate her pregnancy for health reasons does, in fact, lie at the core of the constitutional liberty identified in Wade. But, regardless of whether the freedom of a woman to choose to terminate her pregnancy for health reasons lies at the core or the periphery of the due process liberty recognized in Wade, it simply does not follow that a woman's freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.

So what if the Supreme Court in Casey had narrowed Roe to the following: a right to abortion access in the first trimester for specified reasons of life, physical health, psychological well-being, rape, statutory rape, or incest? The 'Undue Burden' rule of Casey would be applied in reviewing abortion regulations in the first trimester, and the right to abortion access for purposes of life or physical health would exist throughout pregnancy. The Court rules 7-2 in this way, but splits 5-4 in applying the Casey rule to reach a similar outcome as historically (upholding everything about Pennsylvania's law other than a spousal notification requirement). Pregnancies resulting from abusive relationships likely would get lumped into the category of "psychological health," given the role of such circumstances in justifying Casey's outcome.



This pretty much sets the abortion right squarely in the center of public opinion. In theory it can be quite strict, but doctors would have a lot of leeway and probably construe necessity broadly in the first trimester. It would be very difficult to successfully prosecute a doctor for erring on the safe side and performing abortions in arguable cases.

It would be a win for pro-life forces, but takes the wind out of the sails of those who hoped to use a Roe overturn to fire up the pro-choice side in the 1992 election. Would it give George HW Bush a boost in the 1992 election?

From 1989 to 1992 historically, there was a stark drop in the number of pro-life pieces of legislation introduced in the States. A lot of politicians stopped being so pro-life when there was a possibility that the laws would go into effect.

With health being centered as the core of Roe, I wonder if a case like Geduldig v. Aiello (saying it isn't discrimination on the basis of sex to not fund pregnancy as a disability) would be revisited.

 

[Francisco Cojuanco]

It would be a win for pro-life forces, but takes the wind out of the sails of those who hoped to use a Roe overturn to fire up the pro-choice side in the 1992 election. Would it give George HW Bush a boost in the 1992 election?

I still think it would fire up the pro-choicers, kind of like the way it did to a limited extent with Dobbs.

Even if legally it's the dead center of what your average American voter wants, by this time the fight over abortion is also a fight over cultural symbolism, progress vs reaction, "get your rosaries off my ovaries," that sort of thing.

Is it the majority of the population? By no means. But in American politics, never doubt the power of a small, comparatively radical but vocal and dedicated minority to dominate the political conversation - just ask Wayne LaPierre.

It does expand the freedom of action for pro-lifers though.