If Judge Brett Kavanaugh is confirmed to the U.S. Supreme Court, he will create a conservative majority that could overturn Roe v. Wade. Such a ruling would severely limit access to abortion across the country.
But abortion access has already drastically changed since the landmark decision, thanks mostly to Planned Parenthood v. Casey, a Supreme Court case from Pennsylvania.
"Planned Parenthood v. Casey is the case that every law student in the country reads,” said Sue Frietsche, senior staff attorney at the Women’s Law Project. “It established the constitutional standard by which abortion restrictions are measured.”
Planned Parenthood of Southeastern Pennsylvania sued then-Gov. Bob Casey Sr. over the Abortion Control Act, a state law that mandated a 24-hour waiting period, insisted on parental consent for minors, and required women to notify their husbands before getting an abortion, among other provisions. Planned Parenthood thought it violated Roe's holding that access to an abortion was a Constitutional right.
“The 1988-1989 Abortion Control Acts were a set of regulations that were designed specifically to get to the Supreme Court, so that Pennsylvania would be the state that resulted in the overruling of Roe,” Frietsche said.
Stephanie Dangel is the executive director of the Innovation Practice Institute at the University of Pittsburgh School of Law. She also was a Supreme Court law clerk for Justice Harry Blackmun (who wrote the Roe v. Wade decision) when Planned Parenthood v. Casey was argued.
“It was a rollercoaster,” Dangel said. “I mean, when the case was initially appealed, there was this question on whether it would be decided before the election in the fall. And our chambers felt quite strongly that if they were going to make the decision to overrule Roe, it should be done prior to the election.
“At the time the case was argued, all the justices on both sides kind of anticipated that Roe would be overturned,” Dangel recalled. “But in the process of the oral arguments and subsequent discussions among three of the justices -- Kennedy, O’Connor, and Souter -- they decided amongst themselves that the essential ruling of Roe could be upheld.”
Justice Anthony Kennedy — who Judge Kavanaugh is seeking to replace — was the swing vote. Justices who wanted to overturn Roe lobbied him heavily.
“We were on pins and needles worrying that that switch was gonna happen up until the day it was released,” Dangel said.
The court upheld Roe, and most of Pennsylvania's law, with a caveat called the undue burden standard. It said restrictions were legal as long as they weren’t proposed with the intention of creating a significant obstacle for women who wanted an abortion.
The only provision of the Abortion Control Act that the court found to be an undue burden was the spousal notification provision.
“The Roe standard was weakened,” said Frietsche. “And it was significantly weakened. And it allowed states to regulate abortion in ways that a pure Roe standard would never have permitted.”
Sue Frietsche says new restrictions have made it difficult for all but privileged women to access abortion.
“A lot of [those restrictions] are in effect in Pennsylvania today,” Frietsche said.
Since Casey, the number of abortion restrictions increased dramatically throughout the U.S.
In Pennsylvania, for example, there are rules about the size of rooms in clinics. Abortions based on the sex of the fetus are illegal.
When Casey was decided, there were 81 abortion providers in the state. That number dropped to 42 by 2014, according to the Guttmacher Institute.
State Representative Rick Saccone opposes abortion rights. The Republican says he aligns himself with the late Governor Casey.
“You know, he said that Roe v Wade is a law we must observe but never honor,” said Saccone.
The Casey decision allowed lawmakers like Saccone to propose new restrictions — like his bill banning abortion as soon as a fetal heartbeat is detected. There’s been no action on Saccone's bill since he introduced it in May, though similar laws have passed elsewhere.
The Supreme Court could use the Casey decision to uphold state restrictions if Kavanaugh is confirmed.
“The question at the front of everyone’s mind is whether or not Planned Parenthood is going to survive the appointment of a new justice,” said Dangel. “And time will tell.”
But in many states, regulations borne from the Casey decision may effectively end abortion, even if the next justice leaves Roe in place.
