Burying the Dead: The Case against Revival of Pre-Roe and Pre-Casey Abortion Statutes in a Post-Casey World


On June 29, 1992, the United States Supreme Court handed down its opinion in Planned Parenthood v. Casey, a decision decried by both pro- and anti-choice forces as unsatisfactory and unworkable. The Court’s majority opinion, which upheld numerous restrictions on the abortion decision while “retain[ing] the outer shell”‘ of Roe v. Wade, was written by Justices O’Connor, Kennedy, and Souter; the remainder of the Court submitted a variety of differing opinions. The Casey decision failed to provide a clear and workable standard and instead created confusion, anger, and hope among proponents and opponents of choice such that the debate over the fate of Roe will continue.

The majority, while refusing to accept the Third Circuit’s reasoning that Roe was dead, did agree that the “undue burden” standard was appropriate, albeit redefined. Under Casey, most restrictions on pre-viability abortions will be upheld as long as they do not create an outright ban or impose a “substantial obstacle”; most post-viability restrictions and even bans will be permitted, provided there are exceptions for the life and health of the woman. Thus, the Casey decision gives broad latitude to the states to regulate abortion.

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