Planned Parenthood v. Casey

The results of a conservative governing class

WASHINGTON MARCH 8: Demonstrators rally in support of abortion and other women’s rights, and against President Trump’s administration, on March 8, 2017, International Women’s Day, in Washington, DC. Courtesy of Shutterstock.

A leak within the Supreme Court of the United States of America began the month of May.

This draft opinion by Supreme Court Justice Samuel Alito signals the end of federal abortion protections. It would effectively render Roe V. Wade, the historic court decision around a woman’s right to autonomy over her health and body, useless and without teeth. The opinion itself has caused many to wonder whether similar things could happen to other rights and precedents, like in the Obergefell decision.

There have been signals for some time now that debilitating Roe was the ultimate goal. It became common knowledge that the GOP’s deal with the Trump monster was around packing the court with “unqualified” and spiteful conservatives.

Mitch McConnell effectively stole a Supreme Court seat from Barack Obama.

Susan Collins is again disappointed by other GOP men lying to her.

Laurence Tribe @tribelaw

For Senators like Susan Collins, that proud boast by Alito when he sought a DOJ job was overcome by his meaningless assurance when he sought a SCOTUS seat that he considered Roe to be a “precedent of the Court.” That’s frankly either idiotic or willfully self-delusional.

Harry Litman @harrylitman

When Alito applied for a senior job at the DOJ in 1985, he wrote in his cover letter that as a “life-long registered Republican,” he was “particularly proud” to have worked on cases arguing “that the Constitution does not protect a right to an abortion.”

Since the 1992 Supreme Court decision in Planned Parenthood of Southeastern Pennsylvania V. Casey, the right to an abortion has been subjected to the “undue burden” legal standard rather than the “strict scrutiny” legal standard that came after the Roe decision.

The strict scrutiny standard demands that the state have a specific reason for wishing to prohibit an abortion. The undue burden standard relaxed these demands and opened up state restrictions to abortion access as long as it didn’t impose an “undue burden” on the overall ability to gain an abortion.

The 1992 decision was preceded by a dispute over whether a woman should notify her spouse or guardian if they were seeking an abortion. The dispute was spurred by an amendment to the Pennsylvania Abortion Control Act of 1982 (proposed in 1988 and 1989). It included a 24-hour waiting period and a husband/ legal guardian notification requirement. Changes also included “informed consent” requirements with a change in the frames used to view abortion viability - previously understood through the lens of trimesters (with the third trimester being when the state could regulate abortions except in the case a women’s health is at risk).

The law was challenged by five clinics, a class of physicians providing services, and one independent physician representing himself. The case trickled up from the district to the circuit court which was on track to consider the provisions unconstitutional, specifically, the husband notification requirement. But then Samuel Alito, who was a circuit judge at the time, was the lone dissenter against the court’s decision in appeals court. The husband notification requirement was dropped with everything else intact.

So, the case reached the halls of the Supreme Court as new conservative nominees were elevated during a spate of GOP presidencies (Reagan and Bush).

Alito’s judicial activism against reproductive rights obviously didn’t stop there.

The appeals court’s decision was sustained by SCOTUS in a 5-4 decision, with Justice David Souter (appointed by Bush the First) surprising the court by joining Justice Sandra Day O’Conner, Justice Harry Blackmun, and Justice John Paul Stevens in dissenting.

The legal standard had shifted from “strict scrutiny” to “undue burden” and opened up the legal gates for more nefarious attempts to render Roe unenforceable.

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A mainstay of this current governing era is the consistent attacks on women’s reproductive rights. Ever since the Roe decision occurred, American conservatives and religious activists have focused their ire on the way the decision forces states to provide for women’s health needs. Whether one is trying to “protect the unborn” (as they say) or whether one is shedding a condescending sense of control over women, the tenacious (and oftentimes) mean-spirited campaign to end the protections offered by Roe v. Wade has been a signature piece of today’s Republican consensus.

Between Ronald Reagan and George Herbert Walker Bush, the conservative movement installed six justices on the Supreme Court of the United States. Only two justices (Harry Blackmun and William Rehnquist) were on the court during the original Roe decision.

From fights over busing and racial equality to spreading accurate knowledge about women’s healthcare, the conservative movement pinpointed the judiciary while corrupting it in order to make edicts out of a skewed and biased traditionalism. If one is to look at the trajectory of reproductive rights within the judiciary from the decision in Webster v. Reproductive Health Services in 1989 to this current case in Dobbs v. Jackson Women’s Health Organization - then one can conclude the conservatives were remarkably successful.

It constantly seems like an outcome of this current era (overshadowed by the ghost of the “Reagan Revolution”) is the loss of rights and equality in a number of matters and dimensions.

It is the tragedy of an insurgent political movement that failed demographically and ethically but has attained ultimate and undeserved political power in an age of decadence.