Q&A with the Scholars: The State of U.S. Abortion Law

Samuel B. Casey, J.D.  

Samuel B. Casey, J.D., is a public interest lawyer well-known for his defense of the sanctity of human life. Mr. Casey is the Managing Director and General Counsel of the Jubilee Campaign’s Law of Life Project, and is also a founding organizer of the Center for Bioethics & Human Dignity and serves on its advisory board. He has served as the founding chair of the Alliance Defense Fund (now the Alliance Defending Freedom) and the Healthcare Freedom of Conscience Working Group, and is an organizational representative within the Freedom2Care Coalition. Mr. Casey is one of our nearly 40 associate scholars. In this interview, he discusses the history and current state of abortion law in the United States.

 

Samuel B. Casey, J.D.

Samuel B. Casey, J.D.

 

A 2013 NBC/Wall Street Journal Poll found that a plurality of Americans (41%) did not know enough about the Supreme Court’s 1973 abortion decision Roe v. Wade to have an opinion about it. What was the central holding of the Court’s decisions in Roe v. Wade and its companion case Doe v. Bolton? What was the immediate effect of these decisions on existing laws in the United States?

 

Casey: In Roe v. Wade (1973), the Supreme Court held that a pregnant woman has a fundamental privacy right to obtain an abortion. The Court’s opinion was written by Justice Harry Blackmun. The right to abortion, the Court cautioned, is not absolute and has to be balanced against the State’s countervailing interests in preserving the health of the woman and in protecting the “potential” life of the unborn child. The State’s interest in preserving the health of the woman becomes “compelling,” and thus weighty enough to support state regulation of abortion under the strict scrutiny standard of judicial review, after the first trimester, which is the stage of pregnancy when (at least at the time Roe was decided) abortion becomes as dangerous to the mother as carrying the child to term. The State’s interest in protecting the “potential” life of the unborn child becomes “compelling” after viability, the stage of pregnancy when the unborn child is capable of independent life. Because neither interest is compelling before the second trimester, the State may not regulate abortion in the first trimester either to preserve the woman’s health or to protect the life of the unborn child. After the first trimester, however, the State may regulate the performance of an abortion, but only for the purpose of preserving the woman’s health, not for the purpose of protecting the life of the unborn child. After viability, the State may regulate, and even prohibit, abortion to protect the life of the unborn child, except when the performance of the abortion is necessary to preserve the life or health of the woman.

 

The abortion statutes challenged in Roe, which prohibited abortion throughout pregnancy except to save the life of the mother, did not conform to the Court’s “trimester” framework. Accordingly, they were declared unconstitutional. In Roe, the Court also held that an unborn child is not a “person” as that word is used in § 1 of the Fourteenth Amendment and, therefore, is not protected by either the Due Process Clause or the Equal Protection Clause, a holding from which no Justice on the Court – then or since – has dissented.

 

In Roe’s companion case of Doe v. Bolton (1973), decided the same day as Roe, the Court struck down various procedural requirements imposed by a Georgia abortion statute based on § 230.3 of the Model Penal Code (that the abortion be performed in a licensed and accredited hospital, that the procedure be approved by the majority of a medical staff committee of the hospital, and that two other physicians in addition to the attending physician certify that the abortion was necessary for one of the reasons specified in the statute). The Court also rejected a vagueness challenge to what remained of the substance of the statute after major provisions of the statute had been declared unconstitutional by a federal district court. Both Justice Byron White and Justice William Rehnquist dissented from the opinions in Roe and Doe striking down the Texas and Georgia abortion statutes.

 

The immediate effect of the Roe and Doe decisions was effectively to render unconstitutional and unenforceable all the state laws in the 50 states that regulated or banned abortion.

 

What have been the most consequential abortion-related Supreme Court decisions since Roe, and how did they further shape abortion law

 

Casey: The three most consequential Supreme Court decisions shaping abortion law since Roe are Planned Parenthood v. Casey, 505 U.S. 833 (1992); Gonzalez v. Carhart, 530 U.S. 124 (2007); and Whole Women’s Health v. Hellerstedt, 790 F.3d 563 (5th Cir. 2015), reversed and remanded, ___U.S. __(2016). Casey reaffirmed Roe’s central holding on a different ground – that women had come to rely on Roe and Roe should not be reversed for this reason. Gonzalez acknowledged that abortion harms some women but even partial birth abortion under some circumstances was permissible, although certain partial birth abortion procedures could be banned. Whole Women’s Health held that two provisions in a Texas law – requiring physicians who perform abortions to have admitting privileges at a nearby hospital and requiring abortion clinics in the state to have facilities comparable to an ambulatory surgical center – place a substantial obstacle in the path of women seeking an abortion, constitute an undue burden on abortion access, and therefore violate the Constitution.

 

What do you think are the most promising pro-life laws being enacted currently, and which stand the best chance of surviving legal challenges given current legal precedents?

 

Casey: The most promising pro-life policies to be pursued in our current political climate are the following:

  1. Ban on federal funding of Planned Parenthood using the reconciliation bill.
  2. Ban on federal funding of Embryonic Stem Cell Research via the Dickey-Wicker Amendment.
  3. No Taxpayer Funding for Abortion Act, codifying the Hyde amendment and permanently prohibiting the federal funding of any abortion unless (a) the pregnancy is the result of rape or incest, or (b) the woman suffers from a physical disorder, injury, or illness that would place her in danger of death unless an abortion is performed as certified by a physician.
  4. Pain-Capable Unborn Child Protection Act, restricting abortion after five months of pregnancy, by which point unborn babies can feel pain.
  5. Ensuring that the legislation that replaces Obamacare is pro-life with strong conscience protections.
  6. Confirming judges who will uphold the U.S. Constitution by reversing Roe, Doe, and Casey and upholding the policies listed above.

What do you think is the best legal argument in defense of a law banning abortion after the point at which an unborn child can feel pain? 

 

Casey: The best argument is to defend federalism – the individual states should be free to determine for themselves at what point their interest in the preservation of human life ought to be protectable. A key component of this respect for federalism is greater judicial deference to legislative findings.

 

Why are you pro-life? If you had 60 seconds to explain to someone why you have pursued the work that you have throughout your career, what do you tell them?

 

Casey: I am pro-life because abortion inhumanely kills children (including members of my own extended family), physically and psychologically harms their mothers, and emasculates their fathers by depriving them of their paternal identity and responsibilities without due process of law.

 

It is poverty to say a child must die so that we may live as we wish. The undisputed scientific fact that human life begins at conception and the widely-held philosophic understanding that life is an undeserved gift from God and an inalienable right of every human being from our conception to our natural death forms the foundation of marriage and the human family, as well as the basis for the equal protection of the laws, the United Nation’s Universal Declaration of Human Rights, the United States Declaration of Independence, and the commitment in America’s Constitution to our “posterity.” Over the past 44 years, one-sixth (60,000,000) of the American population has been killed by elective abortion. Twenty-five percent of African-Americans are killed in the womb. Abortion is the leading cause of death in America.

 

Who in good conscience can be in favor of that? In Mother Teresa’s infamous words: “Any country that accepts such abortion on demand is the poorest of the poor.”

 

Mr. Casey’s full biography can be found here.

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