How planned parenthood v. casey (pretty much) setded the abortion wars

Yale Law Journal

Volumn 118, Issue 7, 2009, Pages 1318-1354

  Neal, Devins ^a  

^a The College of William and Mary   (United States)

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EID: 70349260305     PISSN: 00440094     EISSN: None     Source Type: Journal    
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References (254)

1. See Ian Urbina, Social Initiatives on State Ballots Could Draw Attention to Presidential Race, N.Y. TIMES, Aug. 11, 2008, at A12. A third antiabortion initiative, in California, would have required physicians to notify the parents of unemancipated minors forty-eight hours before performing an abortion.
2. See id.
3. For a description and analysis, see Emily Bazelon, Required Viewing: Oklahoma's Gallingly Paternalistic Ultrasound Law, SLATE, Oct. 22, 2008, http://www.slate.com/id/2202765/.
4. Further suggesting that there was "rough weather ahead," the U.S. Court of Appeals for the Eighth Circuit, in June 2008, approved a South Dakota law requiring doctors to inform women that abortions "terminate the life of a whole, separate, unique human being." Robert Post, Rough Weather Ahead, Balkinization, Sept. 9, 2008, http://balkin.blogspot.com/2008/09/rough- weather-ahead.html (discussing Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724 (8th Cir. 2008));
5. see also Robert Post, Informed Consent to Abortion: A First Amendment Analysis of Compelled Physician Speech, 2007 U. ILL. L. REV. 939 (2007) (assessing the constitutionality of South Dakota's informed consent law).
6. Jeffrey Rosen, The Myth of Biden v. Bork, N.Y. TIMES, Aug. 27, 2008, at A23.
7. Cass Sunstein, The Fate of Roe. Wade and Choice, BOSTON GLOBE, Sept. 14, 2008, at D9. For its part, the Obama campaign ran radio ads talking about what would happen "[i]f Roe v. Wade is overturned." Ben Smith, Obama Ad Slams McCain on Abortion Rights, POLITICO, Sept. 2, 2008, http://www.politico. com/news/stories/0908/13103.html.
8. 550 U.S. 124, 157, 159 (2007).
9. For a discussion of right-to-life claims that abortion hurts women and the salience of those claims to the Carhart decision,
10. see Reva B. Siegel, Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart, 117 YALE L.J. 1694 (2008) [hereinafter Siegel, Dignity] ; and
11. Reva B. Siegel, The Right's Reasons: Constitutional Conflict and the Spread of Woman-Protective Antiabortion Argument, 57 DUKE L.J. 1641 (2008).
12. 410 U.S. 113(1973).
13. See CHARLES FRIED, ORDER AND LAW: ARGUING THE REAGAN REVOLUTION-A FIRSTHAND ACCOUNT (1991) (discussing Reagan Administration efforts to reverse Roe through Supreme Court arguments and judicial appointments);
14. RONALD REAGAN, ABORTION AND THE CONSCIENCE OF THE NATION 19 (1984) (analogizing Roe to Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856)).
15. Advertisement, WASH. POST, Sept. 14, 1987, at A9.
16. Webster v. Reprod. Health Servs., 492 U.S. 490, 518 (1989).
17. 505 U.S. 833(1992).
18. See NEAL DEVINS, SHAPING CONSTITUTIONAL VALUES: ELECTED GOVERNMENT, THE SUPREME COURT, AND THE ABORTION DEBATE 67-73 (1996).
19. William Schneider, The Battle for Saliency: The Abortion Issue in This Campaign, ATLANTIC ONLINE, Oct. 1992, http://www.theatlantic.com/politics/ abortion/batt.htm (quoting thenGovernor Bill Clinton).
20. Indeed, for the pro-choice community, the threat to reproductive liberty is even greater today. Dawn Johnsen, who had served as legal director of NARAL Pro-Choice America during the 1987-1992 period, put it this way: "As bad as things looked in that critical 1987-1992 period, I never imagined that a majority of Justices on the Supreme Court would join an opinion that included some of the language contained in the Court's 2007 Carhart decision." Dawn Johnsen, Why the 2008 Election Matters fir Reproductive Rights, Balkinization, Sept. 24, 2008, http://balkin.blogspot.com/2008/09/why-2008-electionmatters-for. htm (italicization added).
21. See Nicholas Riccardi, Initiatives To Curb Abortion Defeated, LA TIMES, NOV. 5, 2008, at A18; infra note 142 (discussing the electoral defeat of right-to-life prosecutor Phill Kline).
22. NARAL PRO-CHOICE AM. FOUND., WHO DECIDES? THE STATUS OF WOMEN'S REPRODUCTIVE RIGHTS IN THE UNITED STATES tbl. (2009).
23. When Casey was decided, Pennsylvania was one of a handful of "challenger" states that regularly enacted anti-abortion restrictions. See Glen Halva-Neubauer, Abortion Policy in the Posf-Webster Age, 20 PUBLIUS 27, 32 (1990)
24. Correspondingly, even though voters may not be aware of the details of complicated regulatory statutes, lawmakers typically prefer to steer clear of contentious, socially divisive issues. See infra notes 41, 74 and accompanying text. Put another way, absent a strong prolife constituency that will reward the pursuit of antiabortion policies, lawmakers will take no chances and simply steer clear of the abortion issue.
25. In particular, since the states are unlikely to enact significant new restrictions, the judicial appointees of Barack Obama will have few opportunities to meaningfully tighten the Casey undue burden standard. At the same time, I am not making the broader point that presidential politics is irrelevant to reproductive rights. Presidential elections, for example, speak to whether pro-choice or pro-life policies will be advanced through presidential directives.
26. See DEVINS, supra note 11, at 97-120;
27. Neal Devins, Through the Looking Glass: What Abortion Teaches Us About American Politics, 94 COLUM. L. REV. 293, 304-09 (1994) (reviewing BARBARA HINKSON CRAIG & DAVID M. O'BRIEN, ABORTION AND AMERICAN POLITICS (1993));
28. Johnsen, supra note 13. My argument, instead, is about the basic Roe right - that is, the power of states to directly regulate abortion.
29. Ross Douthat, Abortion Politics Didn't Doom the G.O.P., N.Y. TIMES, Dec. 7, 2008, Week in Review 10.
30. Faith Bremner, Related Measures Fail in California, Colorado, ARGUS LEADER (Sioux Falls, S.D.), Nov. 9, 2008, at 1A (italicization added) (quoting NARAL Pro-Choice America president Nancy Keenan).
31. For another treatment of this topic, see Robin West, From Choice to Reproductive Justice: DeConstitutionalizing Abortion Rights, 118 YALE L.J. 1394 (2009).
32. See DAVID J. GARROW, LIBERTY AND SEXUALITY: THE RIGHT TO PRIVACY AND THE MAKING OF ROE V. WADE 370-71, 576-77 (1994) (highlighting defeat of pro-choice legislative reform proposals and pro-choice ballot initiatives);
33. Neal Devins, The Countermajoritarian Paradox, 93 MICH. L. REV. 1433, 1445-48 (1995) (review GARROW, supra).
34. This is how Justice Potter Stewart, who concurred in Roe, depicted Justice Blackmun's draft opinion.
35. See Bob Woodward, The Abortion Papers, WASH. POST, Jan. 22, 1989, at Di.
36. LINDA GORDON, THE MORAL PROPERTY OF WOMEN 295 (3d ed. 2002) ;
37. see also Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 HARV. C.R.-C.L. L. REV. 373, 409-425 (2007) (detailing how mobilization against Roe was tied both to opposition to women's movement and to efforts by evangelicals to link abortion to secular humanism).
38. See GARROW, supra note 21, at 285-305.
39. Reflecting this change in public opinion, eighteen states had liberalized their abortion policies-principally to allow women to have abortions in cases of fetal deformity, rape, incest, or when there was a substantial health risk.
40. See DEVINS, supra note 11, at 57-60.
41. See Michael J. Klarman, Roe's Backlash, Balkinization, Sept. 11, 2008, http://balkin.blogspot.com/2008/09/roes-backlash.html.
42. Id.
43. Halva-Neubauer, supra note is, at 32.
44. Barry Friedman, Will of the People 489-490 (Oct. 28, 2008) (unpublished manuscript, on file with author).
45. Republican Platform Text, 1980 reprinted in 36 CONG. Q. ALMANAC 58-B, 62-B (1980).
46. FRIED, supra note 7, at 72.
47. THE WHITE HOUSE REPORT: INFORMATION ON JUDGE BORK'S QUALIFICATIONS, JUDICIAL RECORD & RELATED SUBJECTS, reprinted in 9 CARDOZOL. REV. 187, 206 (1988).
48. Joseph Carroll, Public Supports Roberts Serving on U.S. Supreme Court, GALLUP NEWS SERVICE, Aug. 1, 2005, http://www.gallup.com/poll/17578/Public- Supports-RobertsServing-U S-S upreme-Court.aspx.
49. S. REP. NO.100-7, at 20 (1987).
50. Rather than turn the Bork hearings into a formal referendum on abortion rights, however, the Block Bork Coalition focused on Bork's repudiation of all privacy rights
51. See generally MICHAEL PERTSCHUK & WENDY SCHAETZEL, THE PEOPLE RISING: THE CAMPAIGN AGAINST THE BORK NOMINATION 257 (1989) (detailing how the anti-Bork coalition seized on the privacy issue).
52. 492 U.S. 490 (1989).
53. DEVINS, supra note 11, at 67.
54. See Ed Anderson, Legislature Bans Abortions; Roomer's Veto Overridden, NEW ORLEANS TIMESPICAYUNE, June 19, 1991, at A-1;
55. Tamar Lewin, Strict Anti-Abortion Law Signed in Utah, N.Y. TIMES, Jan. 26, 1991, at A10.
56. Overview, ST. REPROD. HEALTH MONITOR (The Alan Guttmacher Inst., New York, N.Y.), Dec. 1990, at i.
57. See DEVINS, supra note 11, at 68-70.
58. See Alan I. Abramowitz, it's Abortion, Stupid: Policy Voting in the 1992 Presidential Election, 57 J. POL. 176, 179(1995)-
59. See Samantha Luks & Michael Salamone, Abortion, PUBLIC OPINION AND CONSTITUTIONAL CONTROVERSY 80, 90-92 (Nathaniel Persily, Jack Citrin & Patrick J. Egan eds., 2008) (detailing how Webster did not impact public opinion).
60. Reflecting the growing confidence of pro-choice interests, pro-choice Congressman Les AuCoin warned that pro-choice forces were "going to take names and kick ankles" of lawmakers who cast anti-choice votes. 135 CONG. REC. 18, 170 (1989) (statement of Rep. AuCoin). For additional discussion,
61. see supra notes 74-77 and accompanying text.
62. See DEVINS, supra note 11, at 70-73.
63. Luks & Salamone, supra note 40, at 94.
64. Spousal notification provisions were supported by just under 70% of Americans.
65. Richard Davis, The Supreme Court Heeds the Voice of the People, CHRISTIAN Sci. MONITOR, July 1, 1992, at 19.
66. Transcript of Oral Argument at 4, Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (No.91-774) (oral argument of Kathryn Kolbert).
67. Planned Parenthood framed Casey this way for political reasons, recognizing that the decision might affect the 1992 presidential race.
68. See EDWARD P. LAZARUS, CLOSED CHAMBERS 460-466 (1998).
69. Underscoring the malleability of the undue burden standard, Justice Stevens would have invalidated both the waiting period and informed consent requirements. Casey, 505 U.S. at 917-18 (Stevens, J., concurring in part and dissenting in part). Before the Third Circuit, then-Judge Samuel Alito thought none of these provisions an undue burden. Planned Parenthood of Se. Pa. v. Casey, 947 F.2d 682, 722 (1991).
70. Casey, 505 U.S. at 867.
71. Robin Toner, The Supreme Court, Ruling Eases a Worry for Bush, but Just Wait, His Critics Warn, N. Y. TIMES , June 30, 1992, at A1.
72. Tamar Lewin, Long Battles Over Abortion Are Seen, N.Y. TIMES, June 30, 1992, at A18.
73. Id. (quoting NARAL legal director Dawn Johnsen) (internal quotation marks omitted).
74. Id.
75. See Devins, supra note 11, at 67-73.
76. See supra note 39.
77. In an effort to neutralize the issue, President George Bush signaled his support for limited abortion rights, saying he was "pleased with the Supreme Court's decision [in Casey]." Statement on the Supreme Court Decision on Abortion, 28 WEEKLY COMP. PRES. Doc. 1661 (June 29, 1992).
78. Freedom of Access to Clinic Entrance Act of 1993, H.R. REP. No.103-306, at 6 (1993), reprinted in 1994 U.S.C.C.A.N. 699.
79. 18 U.S.C. §248 (2000).
80. BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 168 (1921).
81. See generally NEAL DEVINS & Louis FISHER, THE DEMOCRATIC CONSTITUTION (2004) (detailing ways in which social and political forces shape Supreme Court decisionmaking).
82. "From a crass political perspective," as Sandy Levinson has argued, "the best thing that could happen to the Democratic Party is the overruling of Roe and the full 'politicization' of abortion." Sanford Levinson & Jack M. Balkin, Should Liberals Stop Defending Roe?, LEGAL AFF., NOV. 5, 2005, http://www.legalaffairs.org/webexclusive/debateclub-ayotte1105. msp. In particular, Levinson argues that "the overturning of Roe would likely produce 'a sea change in suburban voting patterns."' Id. (quoting Republican Congressman Thomas Davis);
83. see also supra notes 29-39 and aying text (detailing the political unacceptability of the Republican campaign to overturn Roe).
84. See supra notes 21-41 and accompanying text (detailing the political upheaval that followed Roe).
85. Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National PolicyMaker, 6 J. PUB. L. 279, 285 (1957).
86. See Adam Liptak, Roberts Drops Hints in "Precedent" Remarks, N.Y. TIMES, Sept. 18, 2005, at A30;
87. Richard W. Stevenson & Neil A. Lewis, Court in Transition: The Overview: Alita, at Hearing, Pledges an Open Mind on Abortion, N.Y. TIMES, Jan. 11, 2006, at A1.
88. Then-Judge John Roberts was asked only one question about the application of Casey. See Confirmation Hearing on the Nomination of John G. Roberts, Jr. To Be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. (2005). Eleven of eightyfive abortion-related questions asked of then-Judge Samuel Alito concerned Casey, although very few of these questions spoke to the application of Casey. See Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. To Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 323, 382, 401, 506-08, 554 (2006) (statements of Sen. Arlen Specter, Sen. Herbert Kohl, Sen. Diane Feinstein, Sen. Joseph Biden, and Sen. Charles Schumer). Rather than ask Judge Alito what he thought to be an undue burden under Casey, senators focused on Alito's prior statements, writings, or lower court opinions.
89. See, e.g., id. at 401 (statement of Sen. Diane Feinstein, Member, S. Comm. on the Judiciary). In particular, most senators asked why Judge Alito would have upheld the very spousal notification provision that Justice O'Connor voted to invalidate.
90. See, e.g., id. at 382 (statement of Sen. Herbert Kohl, Member, S. Comm. on the Judiciary). Judge Alito's answers turned on his understanding of the relevant standard of review before the Supreme Court decision in Casey, not the application of the Casey undue burden test. See, e.g., id. at 319 (statement of Judge Samuel Alito) (discussing stare decisis).
91. Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. REV. 375, 381 (1985);
92. see also Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U. L.REV. 1185, 1198 (1992).
93. Supreme Court Nominee, 29 WEEKLY COMP. PRES. Docs. 1081 (June 15, 1993).
94. JAN CRAWFORD GREENBURG, SUPREME CONFLICT: THE INSIDE STORY OF THE STRUGGLE FOR CONTROL OF THE UNITED STATES SUPREME COURT 224 (2007).
95. See Jack Balkin, Which Is More Likely: Overturning Roe or Attacking Iran, Balkininzation, May 28, 2008, http://balkin.blogspot.com/2008/05/which-is-more- likely-overturning-roeor.html;
96. see also Levinson & Balkin, supra note 56 (noting how the Republican Party reaps political benefits by simultaneously attacking Roe and appointing Supreme Court nominees who will not overturn Roe)
97. Id.
98. For this very reason, a Justice who simply votes her policy preferences will have little reason to revisit the Casey precedent. Correspondingly, since very few states are pushing the boundaries of casey. there is little risk that there will be a significant number of federal courts of appeals decisions that are truly out of whack with the preferences of Supreme Court Justices.
99. See supra notes 29-39, 56.
100. For this very reason, the Court-absent a dominant coalition of Justices committed to the pursuit of a shared ideological agenda-is more likely to embrace fact-specific standards than hard rules.
101. See Neal Devins, Ideological Cohesion and Precedent (or Why the Court Only Cares About Precedent When Most Justices Agree with Each Other), 86 N.C L. REV. 1399, 1400-20 (2008) ;
102. Nancy Staudt, Barry Friedman & Lee Epstein, On the Role of Ideological Homogeneity in Generating Consequential Constitutional Decisions, 10 U. PA. J. CONST. L. 361, 380-81 (2008). Likewise, the Court is much more apt to reach desired outcomes by reinterpreting past precedent than by overruling precedent in favor of hard rules.
103. See MICHAEL J. GERHARDT, THE POWER OF PRECEDENT 34-40 (2008);
104. see also Phillip P. Frickey, Getting from Joe to Gene (McCarthy): The Avoidance Canon, Legal Process Theory, and Narrowing Statutory Interpretation in the Early Warren Court, 93 CAL. L. REV. 397, 413-39 (2005) (detailing how the Warren Court employed constitutional avoidance in order to minimize political fights over its free speech rulings).
105. For the best statement of how it is that the Supreme Court takes backlash into account,
106. see LEE EPSTEIN & JACK KNIGHT, THE CHOICES JUSTICES MAKE 138-77 (1998).
107. For a competing view, see JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL (1993), which suggests that Justices vote policy preferences.
108. See also SUPREME COURT DECISION-MAKING: NEW INSTITUTIONAL APPROACHES (Cornell W. Clayton & Howard Gillman eds., 1999) (discussing "new institutional" models of judicial behavior-models that emphasize the Court's interest in maximizing legal/institutional objectives, not simply policy objectives).
109. See Neal Devins & Will Fedespiel, The Supreme Court, Social Psychology, and Group Formation, in THE PSYCHOLOGY OF JUDGING (David Klein & Greg Mitchell eds., forthcoming 2010) (manuscript at 11-15, on file with author); supra note 67.
110. With the American people and elected officials supporting limited abortion rights, there is no reason to think that a majority of Justices would both disapprove of the Casey standard and coalesce around some other test. It is more likely that some Justices would represent either end of the ideological spectrum and that the median Justice would prefer an indeterminate standard like Casey.
111. See supra note 67.
112. Compare Stenberg v. Carhart, 530 U.S. 914 (2000) (invalidating a state partial-birth ban), with Gonzales v. Carhart, 550 U.S. 124 (2007) (distinguishing Stenberg and upholding the federal partial-birth abortion ban).
113. Some lawmakers, of course, represent pro-life constituencies or are strongly committed to the pro-life movement. This explains why some states have been willing to push the limits of Casey. But, as this Part makes clear, these states are outliers. More than that, even though outlier states are pushing the Casey envelope, these states nonetheless are operating largely within the Casey framework.
114. For example, Casey's approval of Pennsylvania's informed consent law paved the way for laws mandating ultrasounds as well as the disclosure of possible fetal pain or negative psychological effects of abortion. See infra notes 94-102 and accompanying text.
115. John Hart Ely's observation about the pre-Roe era is particularly salient here. Ely claimed that state lawmakers breathed "sighs of relief when the Court decided Roe, not because they supported abortion rights but because "this particular albatross" was cut from their necks.
116. John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920, 947 (1973).
117. Along the same lines, most members of Congress prefer to serve on powerful committees that formulate national economic policy than policy committees-like the judiciary committees-which "often face 'no win' policy issues... [like] abortion."
118. Mark C. Miller, Congress and the Constitution: A Tale of Two Committees, 3 SETON HALL CONST. L.J. 317, 326 (1993).
119. See infra note 158-160 and accompanying text (describing how the Court's occasional invalidation of governmental action, in fact, legitimates the Court's usual practice of upholding statutory provisions).
120. On the abortion issue, there is good reason to think that state lawmakers-disinclined to enter this political thicket in the first place-wanted the Supreme Court to define the boundaries of what regulatory schemes could and could not be pursued.
121. See Mark A. Graber, The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary, 7 STUD. AM. POL. DEV. 35, 45-61 (1993) (highlighting efforts by lawmakers to have Supreme Court settle political conflicts over slavery, antitrust, and abortion).
122. More generally, today's lawmakers increasingly look to the courts for guidance on the Constitution's meaning and, as such, prefer to operate within boundaries established by the Supreme Court.
123. See George I. Lovell & Scott E. Lemieux, Assessing Jurocracy: Are Judges Rulers or Agents?, 65 MD. L. REV. 100 (2006) (describing burgeoning scholarship on ways in which lawmakers look to courts);
124. Keith E. Whittington, "Interpose Your Friendly Hand": Political Supports for the Exercise of Judicial Review by the United States Supreme Court, 99 AM. POL. SCI. REV. 583, 591-93 (2005) (explaining why lawmakers are especially apt to look to Court for guidance on particularly divisive issues like race and abortion).
125. This is precisely what happened. See infra notes 86-136 and accompanying text.
126. Memorandum from James Bopp, Jr., Member, Bopp, Coleson & Bostrom, & Richard E. Coleson, Senior Assoc., Bopp, Coleson & Bostrom, on Pro-Life Strategy Issues 6 (Aug. 7, 2007), http://www.personhood.net/docs/ BoppMemorandumi.pdf.
127. See infra note 145 and accompanying text.
128. Based on data representing the number of legal abortions in each state in 2005, these states collectively account for 2.94% of U.S. abortions overall. STANLEY K. HENSHAW & KATHRYN KOST, GUTTMACHER INSTITUTE, TRENDS IN THE CHARACTERISTICS OF WOMEN OBTAINING ABORTIONS, 1974 TO 2004, at 18-19 (2008).
129. Id.
130. Common sense suggests that there will be an inverse relationship between abortion regulations and abortion rates, so there is reason to think that at least some women are dissuaded from having abortions because of increasing state regulations. With that said, the limited empirical evidence on this question provides no support for this common sense proposition. Instead, it appears that women who choose to have abortions have inelastic preferences-so that waiting periods, informed consent requirements, and the like have no statistically significant impact on abortion rates.
131. See infra note 102 and accompanying text (discussing fetal pain legislation); infra note 142 (discussing the prosecution of a minor who had an abortion). On the other hand, regulations that noticeably impact the cost of abortion will have some statistically significant impact on abortion rates.
132. See infra note 141. Studies have shown that the state funding of abortions for poor women has a statistically significant impact on abortion rates.
133. Marshall H. Medoff, The Response of Abortion Demand to Changes in Abortion Cost, 87 Soc. INDICATORS RES. 329, 340 (2008).
134. It is unclear, however, whether ultrasound laws or TRAP laws regulating the facilities used by abortion providers have increased the cost of abortion in ways that impact abortion rates. My guess is that these laws have next-to-no impact on abortion rates. Assuming (consistent with existing evidence) that informed consent requirements do not deter women from having abortions, the only women who would be affected by the additional costs associated with onerous TRAP laws or ultrasound requirements would be women who "but for" the additional costs associated with onerous TRAP laws or ultrasound requirement could otherwise afford an abortion. Unlike a state's decision to fund abortions for poor women (something that does have a statistically significant effect), it is unlikely that this increased marginal cost substantially impacts the abortion decision for many women (especially considering the consistently low abortion rates in these states). In making this point, I am not defending these laws. Prochoice interests have good reason to depict these laws as a form of harassment of the women who seek abortions and the clinics that provide abortions to these women. By making it harder for these women to access a clinic and by forcing women to come back a second time to a clinic, these laws clearly impose costs on women. At the same time, these laws are not simply outliers-they also are unlikely to meaningfully impact abortion rates.
135. See infra note 157 and accompanying text.
136. See supra notes 16, 67; text accompanying notes 31-41.
137. I recognize, of course, that states continue to enact abortion regulations. There are only a handful of outlier states that seem willing to enact significant restrictions on abortion. While these outlier states may continue to look for new ways to regulate abortion, the central lesson of this essay is that Casey seems to have stabilized abortion politics for nearly every state. Over time, public opinion may change-and this change may impact state practices. Public opinion has been stable for the past thirty-five years.
138. See Luks & Salamone, supra note 40, at 101.
139. In particular, even though public opinion has become more politicized and that differences have intensified in the post-Roe era, the dominant position throughout this period favors legal abortions but also approves of restrictions that limit abortion rights.
140. See also Gallup Organization, Gallup's Pulse of Democracy: Abortion, http://www.gallup.com/poll/1576/Abortion.aspx?version-print (last visited Mar. 11, 2009) (highlighting the fact that, over the past thirty years, most Americans believe abortion should be legal, but that there should be restrictions).
141. Luks & Salamone, supra note 40, at 101.
142. For a discussion of spousal consent/notification laws enacted before Casey,
143. see Barbara Ryan & Eric Plutzer, When Married Women Have Abortions: Spousal Notification and Marital Interaction, 51J. MARRIAGE &FAM. 41 (1989).
144. Devins, supra note 11, at 74;
145. Legislative Proposals and Actions, ST. REPROD. HEALTH MONITOR (The Alan Guttmacher Inst., New York, N.Y.), Dec. 1993, at I; MICHAEL J. NEW, HERITAGE CENTER FOR DATA ANALYSIS, ANALYZING THE EFFECTS OF STATE LEGISLATION ON THE INCIDENCE OF ABORTION DURING THE 1990s, at 2 (2004), http://www.heritage.org/ Research/Family/upload/54839-1.pdf.
146. THE NARAL FOUND., WHO DECIDES? A STATE-BY-STATE REVIEW OF ABORTION RIGHTS, at vi-vii (4th ed. 1993).
147. GUTTMACHER INST., STATE POLICIES IN BRIEF: COUNSELING AND WAITING PERIODS FOR ABORTION 1 (2009), http://www.guttmacher.org/statecenter/spibs/spib-MWPA. pdf;
148. THE NARAL FOUND., WHO DECIDES ? A STATE-BY-STATE REVIEW OF ABORTION RIGHTS 19 (18th ed. 2009).
149. CTR. FOR REPROD. RIGHTS, TARGETED REGULATION OF ABORTION PROVIDERS : AVOIDING THE "TRAP" 1 (2003), http://reproductiverights.org/sites/ar. civicactions.net/files/documents/ pub-bp-avoidingthetrap.pdf.
150. H.B. 1166, 2005 Leg., 80th Sess. (S.D. 2005).
151. See supra note 82; infra note 141.
152. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 886 (1992) (joint opinion of O'Connor, Kennedy, Souter, JJ.).
153. Id. at 882. At the same time, "truthful and not misleading" measures would be invalidated if they unduly burdened the exercise of abortion rights.
154. See MINN. STAT. ANN. §145.4242 (West 2008); Miss. CODE ANN. §41-41-133 (Lexis 2008);
155. TEX. HEALTH & SAFETY CODE ANN. §171.012 (Vernon 2008).
156. For additional information about the Minnesota and Texas laws,
157. see MINN. DEPT. OF HEALTH, IF YOU ARE PREGNANT (2005), http://www.health.state.mn.us/wrtk/pdf/booklet.pdf;
158. TEX. DEP'T OF HEALTH, A WOMAN'S RIGHT TO KNOW (2003), http://www.dshs.state.tx.us/wrtk/after-abortion.shtm.
159. TEX. DEP'T OF HEALTH, supra note 96.
160. See NAT'L RIGHT TO LIFE COMM., WOMAN'S RIGHT TO KNOW: STATES THAT OFFER ULTRASOUND OPTION, (2008), http://www.nrlc.org/wrtk/UltrasoundLaws/ StateUltrasoundLaws.pdf;
161. Kansas Governor Signs Bill on Fetal Images, N.Y. TIMES, Mar. 29, 2009, at A19.
162. GUTTMACHER INSTITUTE, STATE POLICIES IN BRIEF: REQUIREMENTS FOR ULTRASOUND 1 (2009), http://www.guttmacher.org/statecenter/spibs/spib-RFU.pdf.
163. See Harper Jean Tobin, Confronting Misinformation on Abortion: Informed Consent, Deference, and Fetal Pain Laws, 17 COLUM. J. GENDER & L. 111 (2008).
164. See id. at 143-148 (comparing recent scientific literature to statements about fetal pain conveyed to women and, in so doing, concluding that nondisclosure of scientific literature makes fetal pain warnings "misleading").
165. See id. at 124; see also infra note 141 (citing empirical studies on the limited impact of informed consent laws on abortion rates).
166. See Post, supra note 2, at 942, 957-58;
167. see also Caitlin E. Borgmann, Judicial Evasion and Disingenuous Legislative Appeals to Science in the Abortion Controversy, 17 BROOK. J.L. & POL'Y 101 (2008) (discussing ways in which courts ignore shortcomings in legislative factfinding on abortion related issues).
168. See supra notes 94-95 and accompanying text.
169. Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 741 (8th Cir. 2008) (Murphy, J., dissenting).
170. All information about the substance of TRAP laws contained in this paragraph can be found in NARAL Pro-Choice America, Who Decides? Fast Facts: Targeted Regulation of Abortion Providers (TRAP), http ://www.prochoiceamerica. org/choice-action-center/in-your-state/ who-decides/fast-facts/issues-trap.html (last visited Apr. 12, 2009).
171. The six states without TRAP laws-Kansas, Montana, New Hampshire, Oregon, Vermont, and West Virginiaaccount for less than 3% of abortions, based on Guttmacher Institute data on abortion rates. This 3% calculation is based on abortion rate data found in HENSHAW & KOST, supra note 80, at 18-19.
172. Mo. REV. STAT. §§ 188.080, 197.200 (2008).
173. The relevant statutory provisions include KY. REV. STAT. ANN. §§ 216B.0431, .0435 (LexisNexis 2007); 29 La. Reg. 902-906 (June 2003); Miss. CODE ANN. § 41-75 (2005); 12000-034 Miss. CODE R. §§ 101.1-501.1 (Weil 2005); TENN. CODE ANN. § 68-11-201(3) (2001); TENN. COMP. R. ®S. 1200-08-10 (2007); S.D. CODIFIED LAWS §§ 34-23A-46 to 51 (Cumulative Annual Pocket Part 2008) (enacted 2006); UTAH ADMIN. CODE r.432-600-1 to -33 (2008), available at http://www.rules.utah.gov/publicat/code/ r432/r432-600.htm.
174. For an overview of these and other statutory provisions, see NARAL PRO-CHOICE AM. FOUND., WHO DECIDES? THE STATUS OF WOMEN'S REPRODUCTIVE RIGHTS IN THE UNITED STATES (2008).
175. See HENSHAW &KOST, supra note 80 (discussing state abortion rates).
176. See sources cited supra note 5. m. See infra note 141 (noting that there is no statistically significant correlation between informed consent laws and abortion rates).
177. Rosen, supra note 4.
178. Gina Kolata, Anger and Alternatives on Abortion, N.Y. TIMES, Apr. 21, 2007, at A11.
179. Post & Siegel, supra note 23, at 432.
180. Jack Balkin, The Big News About Gonzales v. Carhart-It's the Informed Consent, Stupid, Balkinization, Apr. 19, 2007, http://balkin.blogspot.com/2007/ 04/big-news-aboutgonzales-v-carhart.html.
181. David J. Garrow, Abortion Before and After Roe v. Wade; An Historical Perspective, 62 ALB. L. REV. 833, 847 (1999)
182. 530 U.S. 914 (2000);
183. see Devins & Fisher, supra note 55, at 137.
184. An August 2007 poll likewise revealed that 75% of Americans thought partial-birth abortion should be illegal (as compared to 17% who thought it should be legal).
185. PEW RESEARCH CTR. FOR THE PEOPLE & THE PRESS, RELIGION IN CAMPAIGN '08: CLINTON AND GIULIANI SEEN AS NOT HIGHLY RELIGIOUS; ROMNEY'S RELIGION RAISES CONCERNS 16 (Sept. 6, 2007), http://peoplepress.org/report/353/clinton-and- giulani-seen-as-not-highly-religious-romneys-religionraises-concerns.
186. For reasons noted above, see supra note 17, this Essay will limit itself to state regulation of abortion. In other writings, I have detailed how it is that today's Congress also backs Supreme Court control over constitutional questions.
187. See Neal Devins, Congress as Culprit: How Lawmakers Spurred on the Court's Anti-Congress Crusade, 51 DUKE L.J. 435 (2001);
188. Neal Devins, Should the Supreme Court Fear Congress?, 90 MINN. L. REV. 1337 (2006).
189. See 2007 La. Acts 2574;
190. David J. Garrow, Significant Risks: Gonzales v Carhart and the Future of Abortion Law, 2007 SUP. CT. REV. 1, 33-34.
191. In explaining why, bill sponsors said they had no intention of challenging the Court by enacting unconstitutional restrictions. Bill Barrow, Abortion Bilk Born in Both Houses, TIMES-PICAYUNE, May 18, 2007, at A1.
192. See NEB. REV. STAT. § 28-328 (2006).
193. See Guttmacher Institute, Monthly State Update: Major Developments in 2009, http://www.guttmacher.org/statecenter/updates/index.html (last visited Mar. 11, 2009) (noting that spousal notification provisions are not included in a list of post-2003 legislation that has been introduced regarding abortion in all fifty states).
194. Sixty-nine percent of Americans supported spousal notification provisions at the time of Casey.
195. See Davis, supra note 43.
196. See Garrow, supra note 119, at 41 (discussing the frustration of pro-life activist Robert Muise with Carhart).
197. See Robin Toner, Abortion Foes See Validation fir New Tactic, N.Y. TIMES, May 22, 2007, at A1.
198. Gonzales v. Carhart, 550 U.S. 124, 159 (2007). Casey also referred to a woman's potential regret: "In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed." 505 U.S. 833, 882 (1992) (joint opinion of O'Connor, Kennedy, Souter, JJ.). Although often overlooked by critics of Carhart, Casey's embrace of paternalistic language signals that Carhart was less of a break from past practice than suggested by critics of the decision. See Dahlia Lithwick, Father Knows Best, SLATE, Apr. 18, 2007, http://www.slate.com/id/2164512/.
199. For additional discussion, see Rebecca Dresser, From Double Standard to Double Bind: Informed Choice in Abortion Law, 76 GEO. WASH. L. REV. 1599, 1608 (2008).
200. Piggybacking on the task force report, South Dakota enacted several antiabortion measures, including a 2005 law mandating that women be provided with information stating that abortion increases "the risk of suicide ideation and suicide." S.D. CODIFIED LAWS § 34-23A10.1 (Cumulative Annual Pocket Part 2008).
201. South Dakota, while going further than any state, is one of twenty-one states that require woman to be told about psychological effects of abortion.
202. See GUTTMACHER INST., supra note 90. These laws are tied to Casey's explicit approval of Pennsylvania's informed consent law, which mandated that women be told of the potentially negative psychological effects of abortion.
203. See Casey, 505 U.S. at 882 (joint opinion of O'Connor, Kennedy, Souter, JJ.). Of these nineteen states, the Alan Guttmacher Institute reports that seven mandate that women be told only about the negative effects of abortion. GUTTMACHER INST., supra. Four of these seven have specific statutory mandates; all of which were enacted before 2003 (well before the confirmations of both Justice Alito and Attorney General Alberto Gonzales and the shift in pro-life rhetoric).
204. See MICH. COMP. LAWS ANN. § 333-17015 (West 2008); NEB. REV. STAT. § 28-327-01 (2008); UTAH CODE ANN. § 76-7-305.5 (2003); W. VA. CODE S16-2I-2 (2006).
205. Melanie Hunter-Omar, Oklahoma Enacts Ultrasound Bill, CNSNEWS.COM, Apr. 17, 2008, http://www.cnsnews.com/public/Content/Article.aspx?rsrcid=23965 (quoting Georgette Forney, co-founder of Silent No More Awareness Campaign).
206. There is no record of the Oklahoma legislature's explicitly backing this claim. Of the three other states mandating ultrasounds, Alabama enacted a mandatory ultrasound law in 2002, which specifically references the "psychological and physical well-being of a woman considering an abortion." Woman's Right To Know Act, No.2002-419, 2002 Ala. Laws 1074, 1075.
207. See supra notes 5, 89, 106.
208. For a discussion of restrictive TRAP proposals,
209. see Johnsen, supra note 13.
210. Ultrasound laws from the 1990s include UTAH CODE ANN. §§ 76-7-305(1)(b), 76-7-305.5(5) (2003); and S.C. CODE ANN. REGS. 61-12 § 301(C)(2) (Cumulative Supp. 2007). For additional information, see NAT'L RIGHT TO LIFE COMM., WOMAN'S RIGHT TO KNOW: STATES THAT OFFER ULTRASOUND OPTION (2008), http://www.nrlc.org/WRTK/ UltrasoundLaws/StateUltrasoundLaws.pdf.
211. States that have considered such measures include Colorado, Georgia, Indiana, Kentucky, Missouri, Ohio, Oregon, South Dakota, and Tennessee.
212. See Evelyn Nieves, S.D. Abortion Bill Takes Aim at "Rae': Senate Ban Does Not Exempt Rapes, Incest, WASH. POST, Feb. 23, 2006, at A1; Cynthia L. Cooper, November Ballots Split Anti-Abortion Strategists, WOMEN'S ENEWS, Mar. 27, 2008, http://www.womensenews.org/article.cfmPaid-3540.
213. See Riccardi, supra note 14.
214. The South Dakota law was under consideration before Justice Alito joined the Court and passed shortly after his confirmation.
215. See Monica Davey, South Dakota Bans Abortion, Setting Up a Battle, N.Y. TIMES, Mar. 7, 2006, at A1.
216. I do not mean to suggest that no state will ever enact an anti-abortion prohibition. It is certainly possible that one or two states will either enact or come close to enacting abortion bans. Not only did the South Dakota legislature enact such an anti-abortion ban in 2006, the North Dakota legislature is now giving serious consideration to a bill that would specify that life begins at the moment of conception. On February 17, 2009, the North Dakota House passed such a bill. Brian Duggan, Slate Rep. Hopes To Fight Roe v. Wade, BISMARCK TRIB., Feb. 19, 2009, at IA. The North Dakota Senate, as of April 1, 2009, has yet to take action on this bill. Even if this bill were enacted and were to take effect, the overall impact of this bill would be of huge symbolic but limited practical import. North Dakota accounts for about 1% of all abortions. See HENSHAW & KOST, supra note 80, at 19. More than that, it is extremely unlikely that the enactment of an abortion ban would prompt other states to enact such bans. For example, neither the enactment nor Supreme Court approval of federal partial-birth abortion legislation prompted a wave of anti-abortion legislation.
217. See supra notes 86-132 and accompanying text.
218. NARAL, Fast Facts: Near-Total Abortion Bans, http://www.prochoiceamerica. org/choiceaction-center/in-your-state/who-decides/fast-facts/ near-total-abortion-bans.html (last visited Mar. 11, 2009). Seven other states have passed policy statements declaring their intention to regulate abortion to the full extent permitted by Supreme Court decisions.
219. GUTTMACHER INST., STATE POLICIES IN BRIEF: ABORTION POLICY IN THE ABSENCE OF ROE (2009), http://www.guttmacher.org/statecenter/spibs/spib-APAR.pdf.
220. See Matthew Berns, Note, Trigger Laws, 97 GEO. L.J. (forthcoming Aug. 2009).
221. Jonathan Rivoli, North Dakota Passes Conditional Abortion Ban, BISMARCK TRIB., Apr. 24, 2007, at 7A (paraphrasing the trigger ban sponsor's words). North Dakota's trigger law was enacted days after Carhart and North Dakota State Senator Bob Stenehjem claimed that the state legislature "already had their minds made up" before the decision. Id. The Mississippi and South Dakota bans were enacted before Justice Alito joined the Court; the Louisiana bill was under consideration before Justice Alito joined the Court, but enacted after he joined the Court.
222. HENSHAW & KOST, supra note 80, at 18-19.
223. See id. (detailing abortion rates for the nation and each state).
224. See id. At the same time, I recognize that the lives of individual women could greatly be affected by the overturning of Roe. If a state were to ban abortion, women would be forced to travel out-of-state to secure an abortion and would otherwise feel stigmatized in their home state. More than that, by forcing women to travel out-of-state and thereby increase the cost of abortion, the State would dissuade some (but not many) women from having abortions.
225. See infra note 141 (showing a statistically significant correlation between the cost of abortion and abortions).
226. Injunctions have (at least temporarily) halted enforcement of the Missouri TRAP law and Oklahoma ultrasound law. See New Missouri Abortion Law Temporary Blocked, USA TODAY, Aug. 27, 2007, http://www.usatoday.com/news/ nation/2007-08-27-abortionlawsuit-N.htm;
227. Judge Stalls Oklahoma Law Requiring Ultrasounds Before Abortions, ANDREWS HEALTH L. LITIG. REP., NOV. 2008, at 8. For an overview of post-Casey litigation,
228. see Linda J. Wharton, Susan Frietsche & Kathryn Kolbert, Preserving the Core of Roe: Reflections on Planned Parenthood v. Casey, 18 YALE J.L. & FEMINISM 317 (2006).
229. See, e.g., Marshall H. Medoff, The Determinants and Impact of State Abortion Restrictions, 61 AM. J. ECON. & Soc. 481 (2002) (finding that abortion restrictions do not impact abortion rates); Medoff, supra note 82 (finding that costs of abortion impart abortion rates, but that waiting periods and mandatory counseling have no statistically significant impact on the demand for abortions);
230. Tobin, supra note 100, at 124;
231. see also GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 178-80 (1991) (noting that Roe itself did not substantially impact abortion rates) ; supra notes 80-81 (noting that post-Casey restrictions on abortion in right-to-life states did not affect abortion rates in these states.).
232. Kline became a polarizing national figure when he subpoenaed abortion clinic records in an effort to identify women who had underage sex-so that he could launch criminal prosecutions under a Kansas statute.
233. See Peter Slevin, A Kansan with Conviction, WASH. POST, Mar. 20, 2005, at A3. For stories on Kline's electoral defeats, see Diane Carroll, Kansas Politician Who Crusaded Against Abortion Loses Big, MCCLATCHY, Aug. 5, 2008, http://www.mcclatchydc.com/homepage/story/46556.html;
234. and Peter Slevin, Trounced at Polk, Kansas GOP Is Still Plagued by Infighting, WASH. POST, Dec. 30, 2006, at A2.
235. David G. Savage, Enigmatic Jurist Recasts the Debate on Abortion, LA TIMES, Apr. 22, 2007, at A22.
236. Garrow, supra note 119, at 31 (citing studies).
237. Id. at 41 (quoting Robert J. Muise).
238. See Luks & Salamone, supra note 40, at 94-96.
239. Jacqueline L. Salmon, Some Abortion Foes Shifting Focus from Ban to Reduction, WASH. POST, Nov. 18, 2008, at A1.
240. See David D. Kirkpatrick, The Evangelical Crackup, N.Y. TIMES, Oct. 28, 2007, (Magazine), at 38.
241. See Salmon, supra note 147.
242. Robin West, Katrina, The Constitution, and the Legal Question Doctrine, 81 CHI.-KENT L. REV. 1127, 1155 (2006).
243. See ROSENBERG, supra note 141, at 178-180
244. See Neal Devins, Judicial Matters, 80 CAL. L. REV. 1027, 1057-58 (1992) (reviewing ROSENBERG, uspra note 141). Roe, by legalizing abortion, also had huge symbolic consequences.
245. 153- ROSENBERG, supra note 141, at 192.
246. On the decline in violence, see FEMINIST MAJORITY FOUNDATION, 2005 NATIONAL CLINIC VIOLENCE SURVEY 3 (2005), available at http://feminist.org/ research/cvsurveys/ clinic-survey2005.pdf.
247. On the decrease in abortion providers, see Rachel K. Jones et al., Abortion in the United States: Incidence and Access to Services, 2005, 40 PERSP. ON SEXUAL & REPROD. HEALTH 6, 11 (2008).
248. See Solmaz Shotorbani et al., Attitudes and Intentions of Future Health Care Providers Toward Abortion Provision, 36 PERSP. ON SEXUAL & REPROD. HEALTH 58, 62 (2004) (emphasizing the need for abortion to be a regular part of clinic training);
249. Jody Steinauer et al., Predictors of Abortion Provision Among Practicing Obstetrician-Gynecologists: A National Survey, 198 AM. J. OBSTETRICS & GYNECOLOGY 39.e1, 39.e5-39.e6 (noting factors having an impact on physician decisions and emphasizing the need for abortion training).
250. West, supra note 20, at 1402 (arguing that "the goal of the pro-choice movement should be women's access to legal and safe abortion, not preservation of a right that may be increasingly hollow").
251. Declining abortion rates may also be tied to the efforts of pro-choice states to help women avoid unintended pregnancies-both through sex education and by making contraceptives widely available. See Siegel, Dignity, supra note 5, at 1796 n.86 (discussing the substantial decline in abortion rates in states with few or no abortion restrictions). This, too, should be an even more significant focus of pro-choice interest group activity.
252. See supra text accompanying note 87 (detailing lawmaker acquiescence to Casey's ruling on spousal notification); supra text accompanying note 121 (highlighting the continuing disinterest of lawmakers in spousal notification after Justice Alito cast the fifth vote in Carhart).
253. See supra note 43 (noting that the Casey template is politically popular); supra notes 74-76 (describing how most lawmakers steer clear of controversy on divisive social issues).
254. CHARLES L. BLACK, JR., THE PEOPLE AND THE COURT: JUDICIAL REVIEW IN A DEMOCRACY 52 (1960).