The joint dissent in Dobbs v. Jackson Women’s Health Organization, in which a majority of the Supreme Court decided to abolish the constitutional right to abortion, is an impassioned, meticulous, and at times usefully nonplussed document. Written by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, it itemizes all the familiar, but no less horrifying, likely consequences of the Court’s opinion: rape survivors forced to bear their rapists’ children, prison terms for abortion providers, and bounty laws that “turn neighbor against neighbor . . . in the effort to root out anyone who tries to get an abortion.” It points toward a cascade of new legislation and court challenges that may result from the decision: restrictions on interstate travel for abortion providers and patients, criminal sanctions on women who seek abortions, the reversal of other Court decisions that safeguard liberty and equality, even a federal ban on abortion. (The last of these will not seem far-fetched if Republicans win back Congress and the White House in 2024.) “As of today,” the three dissenting Justices write, “this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare.”
But the dissent in Dobbs has a blind spot, and it has to do with Planned Parenthood v. Casey, the case decided in 1992 that revisited and revised Roe v. Wade. It is somewhat understandable that Casey has not become synonymous with the American abortion debate in the same way that Roe did, or that Dobbs will. After all, Casey neither established nor rescinded reproductive freedom for women in America. But our vague, muddled grasp of Casey—and its vague, muddled wording—is integral to its power: Casey’s role in emboldening anti-abortion activists and curtailing abortion rights unfolded quietly and gradually, state by state, bill by bill. The decision epitomized a centrist, compromising approach to bodily autonomy, one that ostensibly sought comity between opposing sides, but which permitted the language, precepts, and assumptions of the anti-abortion movement to seep into the mainstream discourse on reproductive rights. The road to Dobbs was cleared in part by Casey.
For nineteen years, up until the decision in Casey, Roe v. Wade held that the government had no “compelling interest” in a pregnancy whatsoever during the first trimester, when the vast majority of abortions are performed. Writing for the majority in Roe, Justice Harry Blackmun stated that, for those first twelve or so weeks:
The language of Roe is regrettably patriarchal, as it casts the pregnant woman as a mere consultant to the (male) physician. But the protective boundaries that Roe marked around reproductive freedom were bright and unmistakable. The state had no business anywhere near abortion decisions in the first trimester. It could only intervene in the second trimester in order to protect maternal health. And, before viability, it could not restrict abortion for the purposes of “protecting fetal life.”
Justice Alito posits, in Dobbs, that Roe v. Wade was less a constitutional decision than a poor imitation of “a statute enacted by a legislature,” and a mockery of substantive due process. It is received wisdom among many centrist and liberal Court observers, too, that Roe was a weak decision—a political position in search of a constitutional justification. The first time I heard this sentiment expressed was by a professor in a constitutional-law class I took as an undergraduate, a quarter century ago; I shared and even parroted this view for years as consensus, as fact. But Roe was pretty awesome at what it intended to do, which was to insure, for the first time, a woman’s self-evident right to possession of her own body. The success of the sustained right-wing backlash against Roe is less an indictment of the decision itself than of the flaccid, hand-wringing, extremely Democratic Party response to the backlash by some of the liberals who might have been expected to be Roe’s staunchest defenders. The skeptics included Ruth Bader Ginsburg, who somehow believed that a Roe-like abortion decision would have been less likely to be strafed by the Moral Majority had it been based on equal protection rather than substantive due process.
An illustration of the strength of Roe’s framework can be found in the 1983 Supreme Court case City of Akron v. Akron Center for Reproductive Health, which concerned an anti-abortion city ordinance. The Court found every single one of the rules at issue—including parental notification and consent; a twenty-four-hour waiting period; a requirement that second-trimester abortions be performed in hospitals; and a script in which a patient was told, among other things, that life begins at conception—to be unconstitutional. The Court correctly identified the restrictions as efforts to stall or change a woman’s decision to end her pregnancy—in other words, as efforts to protect fetal life, which Roe did not condone before viability. One of the dissenters in Akron was a relatively new Justice, and the first woman ever named to the Court, the Reagan appointee Sandra Day O’Connor. According to Evan Thomas’s biography of O’Connor, she wrote in her personal notes at the time that the “interest of the state in protecting the unborn is essentially the same at all stages of pregnancy,” which meant, in her view, that regulations were permissible throughout. She disagreed with viability as a useful borderline for deciding abortion law, believing that medical advances would likely keep pushing it earlier and earlier. (Roe v. Wade, in 1973, placed its earliest estimate of viability at twenty-four weeks, which still roughly holds.)
O’Connor went on to co-author the plurality opinion in Planned Parenthood v. Casey, which took up provisions of a Pennsylvania abortion law that required a twenty-four-hour waiting period; counselling; and, depending on the patient, spousal or parental consent. As in Akron, all of these restrictions appeared to contravene the trimester framework of Roe. But, a decade later, the Court had a majority that was widely expected to reject that framework. The decision in Casey, in the end, was a compromise brokered by O’Connor and two of the other newer Justices, David Souter and Anthony Kennedy. It did reaffirm the constitutional right to abortion—and yet, with the exception of the spousal-notification requirement, it upheld the abortion restrictions at hand in the Pennsylvania law. As the plurality explained, “to promote the State’s interest in potential life throughout pregnancy, the State may take measures to ensure that the woman’s choice is informed.” The government could now enact restrictions on abortion care at any time before viability, so long as they did not place “an undue burden on a woman’s constitutional right to decide to terminate a pregnancy.” But a definition of this brand-new “undue burden” standard—or another phrase deployed in the decision, “substantial obstacle”—was not forthcoming in the opinion. Anti-abortion forces could now test its meaning in the courts, with the onus on abortion-rights advocates to prove which burdens were undue. Three Republican-appointed Justices—O’Connor, Kennedy, and Souter—saved Roe, it seemed, by critically wounding it. (Meaghan Winter wrote an excellent piece for Slate in 2016 on the historical background and the practical effects of the Casey decision.)
Roe was far from perfect, but it was, to a great extent, clear, definitive, quantifiable; Casey, with its hazy, conciliatory talk of “undue burdens,” was not. Roe sought to make procuring an abortion as frictionless as possible; Casey sought to uphold the right while allowing states to second-guess and nitpick and means-test it within an inch of its life. (In the year that Casey was decided, Bill Clinton made the prim slogan “Abortion should be safe, legal, and rare” into a refrain of his Presidential candidacy.) Roe shut the door before the second trimester; Casey opened it. And anti-abortion advocates have been pushing through that door ever since, using legislative measures that have little other pretense than to discourage, delay, and thwart abortion care. Abortion providers in various states have been legally compelled to tell patients that life begins at conception or that a medication abortion can be reversed midway (it can’t). Six states have mandated seventy-two-hour waiting periods between two required visits. So-called crisis pregnancy centers, which fraudulently pose as abortion clinics in order to persuade women to continue unwanted pregnancies, have proliferated unchecked in swaths of the country. A 2013 Texas law, which required that abortion providers have admitting privileges at nearby hospitals and held abortion clinics to the same standard as ambulatory surgical centers, stood for three years and shut down half the clinics in the state before it was invalidated by the Supreme Court case Whole Woman’s Health v. Hellerstedt, in which Justice Breyer wrote the majority opinion.