Sumayyah Borders

March 13, 2023

How many Supreme Court Justices does it take to abandon almost 50 years of precedent on a landmark case regarding abortion rights? You might consider the fact that six Justices were critical in the decision to overturn Roe v. Wade in 2022, banning pre-viability abortions. However, the history of abortion laws dates back to the 1980s, about a decade after the establishment of Roe. In this article, I will be tracing the timeline of major abortion cases from Roe v. Wade (1973) to Dobbs v. Jackson’s Women Health Organization (2022). Some of the Supreme Court cases that I will explore include Planned Parenthood of Southeastern Pennsylvania v. Casey, Gonzales v. Carhart, and Whole Woman’s Health v. Hellerstedt.

Introduction
On January 22, 1973, the Supreme Court of the United States (SCOTUS) made a landmark decision in the case Roe v. Wade. A woman by the alias of Jane Roe filed a lawsuit against Dallas County district attorney Henry Wade for a Texas statute prohibiting abortion except when necessary to save the life of the mother. In a 7-2 majority opinion, the Court upheld the Due Process Clause of the Fourteenth Amendment which grants citizens the right to privacy, including a pregnant woman’s right to have an abortion if she so chooses. This ruling required 46 states to change their abortion laws at the time. The decision in Roe marked a significant achievement for the women’s liberation movement of the 1970s; however, it was met with a great deal of controversy. [1][2]

Planned Parenthood of Southeastern Pennsylvania v. Casey
The Court revisited the issue of abortion in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). In the late 1980s, the Pennsylvania Abortion Control Act of 1982 was amended to contain several new provisions. Among such provisions, the law stated that (1) a 24-hour waiting period is required between the time an abortion is decided and the time of the procedure (2) a minor must obtain parental permission to have an abortion, and (3) a married woman seeking an abortion must notify her husband before undergoing the procedure. Several abortion clinics and physicians across Pennsylvania challenged these provisions, but the Court ultimately upheld most of them. [3] The case led to the implementation of a new standard of undue burden defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” The spousal-consultation requirement was the only provision that failed the undue-burden test which led to it being struck down. [4]

However, the legal standard for undue burden is poorly defined. Under the undue burden test, a state is permitted to make it slightly more difficult or expensive for a woman to obtain an abortion, but the state cannot impose any “substantial obstacles” in her path [5]. But what exactly counts as a substantial obstacle? In the Casey opinion, the Court viewed spousal-consultation as an undue burden which led to it being struck down. By contrast, the informed consent and parental-consultation laws seemingly did not constitute undue burdens and remained in place. Ultimately, people on both sides of the abortion issue began to forge their own definitions of the undue-burden test. [6]

Gonzales v. Carhart
Gonzales v. Carhart (2007) put abortion on the chopping block once again, particularly with partial-birth abortion. In 2003, Congress passed the Partial-Birth Abortion Ban Act, which President George W. Bush signed into law. A partial-birth abortion is one in which the person performing the procedure “deliberately and intentionally vaginally delivers a living fetus until…the entire fetal head is outside the body of the mother, or…any part of the fetal trunk past the navel is outside the body of the mother.” However, “partial-birth” is not a real medical term. The National Right to Life Committee (NRLC) coined it in 1995 to describe a new method of removing fetuses from the womb. The procedure is known as “dilation and extraction” (D&X) in which the pregnant woman’s cervix is dilated followed by the removal of the fetus through the birth canal. [7] The Act would place a total ban on this abortion procedure.

Some physicians such as Leroy Carhart sued to stop the Act from going into effect. They argued that a ban on late-term abortions was unconstitutional under the undue-burden test established in Casey. It was also argued that the Act was unconstitutional in its lack of exceptions for abortions necessary to protect the life and health of the mother. The Act was ruled unconstitutional on both grounds by a federal District Court. However, the government appealed the case to the Court of Appeals for the Eighth Circuit. They argued that the Act only bans a limited category of abortion procedures, and that a health exception is not required because Congress had determined that partial-birth abortions are never medically necessary. The Eighth Circuit upheld the District Court’s ruling, stating that the Act was unconstitutional without a health exception. Eventually, the case reached the Supreme Court. In a 5-4 decision, the Court ruled that the Partial-Birth Abortion Ban Act was not unconstitutionally vague and did not impose an undue burden on the right to an abortion. [8] The ruling in Gonzales v. Carhart marked the first time since Roe that the Supreme Court had upheld some type of ban on abortion.

Whole Woman’s Health v. Hellerstedt
In 2013, the 83rd Texas Legislature passed Texas House Bill No. 2 (H.B. 2), imposing new abortion restrictions that resulted in the closure of several abortion clinics in Texas. One major law in the bill required abortion doctors to have admitting privileges at a hospital within thirty miles of their clinic. Another law mandated that all abortion facilities meet the exact standards expected for ambulatory surgical centers (ASCs). [9] These two provisions increased abortion costs and made it more difficult for women to seek abortion care. Before the induction of H.B. 2, over 40 facilities provided abortion care in Texas. That number dropped to 19 as of October 2015.

About a year later, the Center for Reproductive Health filed a lawsuit challenging these provisions on the behalf of a group of abortion providers, both clinics and physicians. [10] The lawsuit particularly focused on two clinics: Whole Woman’s Health in McAllen and Reproductive Services in El Paso. Located in cities on the Mexico Border, both clinics faced the possibility of major impact by the admitting privileges requirement. Additionally, the requirement that abortion clinics upgrade to ASCs could have forced the closure of many clinics due to prohibitive costs. [11] The abortion providers argued that these provisions placed an undue burden on a woman’s fundamental right to an abortion. The federal district court agreed, finding that both the ASC requirement and the admitting privileges requirements imposed an unconstitutional undue burden in violation of the Fourteenth Amendment.

However, in October 2014, the U.S. Court of Appeals for the Fifth Circuit issued a ruling that would allow the enforcement of both laws. The Fifth Circuit concluded that both requirements were valid under the legal standard that a law is valid if it (1) “does not have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus” and (2) “is reasonably related to (or designed to further) a legitimate state interest.” Additionally, it noted that the abortion providers offered insufficient evidence that the remaining clinics would be unable to meet Texas abortion laws. It also added that there was little evidence that the undue burden imposed by H.B. 2 applied to a “large fraction” of women in the state.

In the case of Whole Women’s Health v. Hellerstedt (2016), the Supreme Court ultimately ruled in a 5-3 decision that the two statutory requirements imposed an undue burden on a woman’s right to seek an abortion. The Court concluded that both provisions offered no benefit to women’s health. Because of H.B. 2, more than 75% of Texas’s abortion clinics closed their doors, creating a substantial obstacle to abortion care. Also, the number of women forced to travel long distances skyrocketed with the increasing number of clinic closures, which created another substantial obstacle and constituted an undue burden. The majority opinion, delivered by Justice Stephen G. Breyer, stated that each provision “placed[d] a substantial obstacle in the path of women seeking a previability abortion, each constitute[d] an undue burden on abortion access, and each violate[d] the Federal Constitution.”

Had the Supreme Court upheld H.B. 2, ten or fewer abortion clinics would have been available in a state with over 5.4 million women of reproductive age at that time. Between San Antonio and the New Mexico border, not a single clinic would be seen for more than 500 miles. [12]

Justices Clarence Thomas and Samuel Alito, as well as Chief Justice John Roberts, all dissented. Justice Thomas disagreed with the decision that abortion providers have standing to raise their patients’ constitutional rights. He also disagreed with the premise that women have a constitutionally protected right to seek an abortion, as well as with the Court’s application of the undue burden test. [13] Justice Alito wrote that the plaintiffs did not provide sufficient evidence that neither the two provisions nor the closures of some clinics would affect a “large fraction” of women in Texas. [14] However, the dissenters’ opinion ultimately won out in a landmark decision that would spark nationwide protests and debate over abortion rights.

Dobbs v. Jackson Women’s Health Organization
On December 1, 2021, the Supreme Court heard a case involving a 2018 Mississippi law called the Gestational Age Act. The act banned all abortions over 15 weeks gestational age, referring to the age of a pregnancy starting from the first day of the last menstrual period (LMP). Exceptions were made in medical emergencies and in cases of severe fetal abnormality, but pregnancies resulting from rape or incest were not excused. [15] The viability standard established by Roe v. Wade stated that an abortion is legal until the fetus becomes viable or is able to survive outside of the womb. Fetal viability typically happens between 24 and 28 weeks after conception. [16] Although Roe did not permit pre-viability abortions, some state laws that allowed them had not yet been challenged in court. In 2014, Mississippi passed a law banning abortions at 20 weeks. This law had not been challenged and was still in effect up until the Gestational Age Act.

When Mississippi Governor Phil Bryant signed the bill into law, Jackson Women’s Health, the only abortion provider in Mississippi, challenged it in federal court. The clinic only provided abortions up to 16 weeks, just one week shy of Mississippi’s abortion law. The Gestational Age Act was deemed unconstitutional by both the U.S. District Court for the Southern District of Mississippi and the Fifth Circuit Court of Appeals; however, the state fought back by appealing the case to the Supreme Court. Mississippi asked the Court to either allow states to ban some pre-viability abortions or overturn the constitutional right to abortion completely. The state of Mississippi believed that the undue burden standard was applicable to the case and that the law was constitutional. Additionally, Mississippi claimed that the 15-week ban did not impose a substantial obstacle to “a significant number of women” seeking abortions. [17]

On June 24, 2022, the Court issued its ruling with a majority opinion written by Justice Alito. In a 6-3 decision, the Supreme Court overturned Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. Justices Thomas and Kavanaugh and Chief Justice John Roberts concurred in the judgment. Meanwhile, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented. [18] The Supreme Court had just taken away the constitutional right to abortion, abandoning almost 50 years of precedent.

The United States of America: 50 Years After Roe v. Wade
The 50th year anniversary of Roe v. Wade would have been on January 22, 2023. Since the landmark decision in Dobbs v. Jackson Women’s Health Organization, the outlook for women has shifted dramatically.

As of February 2023, thirteen states, including Texas and Mississippi, have imposed a full ban on abortion with no exceptions for rape or incest. North Carolina, Arizona, Florida, and Utah have bans at 15, 18, or 20 weeks, and Georgia has a six week ban on abortion. States such as Ohio, Iowa, and Indiana have attempted to place strict bans on abortion, but those laws are currently blocked. [19]

In April 2022, the number of legal abortions was about 85,020. Two months after the Dobbs decision, the number of legal abortions declined to 79,620, a six percent decrease from April. In states with bans and severe restrictions, about 22,000 fewer abortions were performed in July and August, compared to April, before the decision. In those states where abortion remained legal, clinics saw an 11% increase in abortions. [20] This data suggests that women who were unable to obtain abortions in states with bans had to traveled to another state to get one. But these women may still have difficulty getting an abortion. States like Colorado, Kansas, and Illinois are surrounded by states with bans, making them a popular destination for out-of-state women. However, many clinics struggle to keep up with demand and cannot handle the incoming flood of patients. [21]

Some women have turned to using abortion pills as an alternative; however this form of medication is also at risk of being banned in states like Texas. In November 2022, an anti-abortion group called the Alliance for Hippocratic Medicine (AHM) filed a lawsuit against the U.S. Food and Drug Administration (FDA). The group alleged that the process the FDA used to evaluate and approve drugs used for medication abortions – mifepristone and misoprostol – was unlawful. [22] According to the Guttmacher Institute, medication abortion accounts for 54% of all abortions nationwide. [23] Currently, there is little legal precedent for a court to overturn an FDA drug approval. However, should that occur, the case could be appealed by the Biden administration and potentially go to the Supreme Court. [24]

Conclusion
From the establishment of Roe v. Wade in 1972 to the overturning of Roe in Dobbs v. Jackson Women’s Health Organization, abortion law has a lengthy history. The landmark decision in Dobbs came as a shocker to many across the United States, especially when female Justice Amy Coney Barrett voted in favor of the abortion ban. However, Planned Parenthood of Southeastern Pennsylvania v. Casey, Gonzales v. Carhart, and Whole Woman’s Health v. Hellerstedt are all major Supreme Court cases that should be included in the conversation on abortion. When we examine these cases on the timeline between Roe and Dobbs, we can see that abortion rights have always been endangered. Each case serves as a foundation upon which subsequent cases are built upon, ultimately leading to abortion bans in almost half of the states. One central theme in many of these cases mentioned is the application of the undue burden test as a way of evaluating whether or not an abortion law created a substantial obstacle for a woman seeking an abortion. But an important question is: how do we define undue burden? In short, we cannot necessarily define what constitutes an undue burden or a substantial obstacle. The legal system uses various terms within its realm, yet these terms are rather loose and can hardly be summed up in one definition. Over the years, the standards for the undue burden test have not only been applied but challenged in cases such as Gonzales and Whole Women’s Health. And, of course, the test played a major role in Dobbs, allowing bans on abortion and overturning the 50 years of precedent established by Roe v. Wade. Today, millions of women in America have to take greater measures to obtain an abortion,from traveling across state lines to ingesting abortion pills. The current state of the country regarding right to privacy and freedom of choice, or lack thereof, seems like something straight out of the book, 1984. However, instead of Big Brother, we have the U.S. Supreme Court. And instead of a dystopian novel, this is real life.

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The author wishes to thank Jess Klein of the Department of Gender, Sexuality, and Women’s Studies for feedback on this piece.

Photo by Adam Fagen via flickr: https://www.flickr.com/photos/afagen/28520410080 under CC BY-NC-SA 2.0 license.

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