Other Supreme Court Abortion Decisions Show How States Struggle To Drive Abortion Policy
The United States Supreme Court is poised to issue a decision on Monday in a case that could seriously affect how state legislatures are able to regulate abortion in the future. The ruling in Whole Woman's Health v. Hellerstedt will be the first major abortion decision to come out of the Supreme Court in nearly a decade and will likely impact millions of women. The case is a challenge to a 2013 Texas law that, in imposing strict regulations on facilities that perform abortions, effectively closed a significant number of abortion clinics in the state. But this is not the first time the Supreme Court has weighed in on how state legislators regulate abortion. In fact, other Supreme Court abortion decisions show states have often struggled to drive abortion policy since the landmark case of Roe v. Wade.
Abortion access and women's reproductive rights have been some of the most controversial issues to come before the high court in its more than 200-year history. Even Roe v. Wade, one of the Supreme Court's most significant rulings on the abortion, failed to completely squash debate on the issue in 1973 by guaranteeing women the right to an abortion.
In Roe v. Wade, the court shot down a Texas law banning abortion in all cases except those where the mother's life was at risk. Although the case is considered a milestone ruling for women's reproductive rights, it opened the door to a continuing parade of cases challenging the limitations and margins of the Roe v. Wade ruling. As a result, abortion policies have largely been driven by the Supreme Court and not the states.
The Supreme Court handed down a decision in another key abortion case the same year it ruled in Roe v. Wade. In Doe v. Bolton, the high court ruled states (Georgia in this case) could not limit a woman's right to an abortion by imposing strict legal restrictions. The case was a challenge to a law which banned abortions except in cases of rape, fetal abnormality, or when the mother's life or health was endangered, required all abortions be performed in accredited hospitals, and demanded women seeking the procedure obtain authorization from multiple doctors.
In Planned Parenthood v. Danforth, the first abortion case to reach the Supreme Court after Roe v. Wade and Doe v. Bolton, the high court invalidated several parts of an abortion law enacted in Missouri post-Roe as unconstitutional. The Supreme Court struck down segments of the law which banned abortion by saline injection, required married women to present written proof of their spouse's consent, and penalized doctors who failed to preserve the life and health of the baby.
Sixteen years after Roe v. Wade, the Supreme Court upheld a Missouri law that prohibited the use of state funding or state employees in abortion procedures in Webster v. Reproductive Health Services. It was the first ruling to come from the Supreme Court that seemed to reign in the abortion rights granted to women in Roe v. Wade. The case also opened the door for another significant abortion ruling which further challenged the framework of Roe v. Wade.
In 1992, the Supreme Court heard a challenge to the Pennsylvania Abortion Control Act in Planned Parenthood v. Casey. The law required married women to notify their husbands before obtaining an abortion and enacted a 24-hour waiting period before abortions, among other things. In their ruling, the court upheld the "essential holding" of Roe v. Wade, but changed the "strict scrutiny" standard laid out in Roe v. Wade for evaluating how restrictions might violate a woman's right to an abortion. The "strict scrutiny" standard had been largely responsible for the court's decisions to shoot down many early state efforts to restrict or regulate women's reproductive rights. In Casey, however, the Supreme Court replaced "strict scrutiny" with a more relaxed standard of "undue burden." Under the ruling states were deemed able to enact abortion regulations as long as they did not have "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion."
The Supreme Court's decision to uphold a federal ban on partial-birth abortion in the 2007 case of Gonzales v. Carhart was the first time the high court had ruled in favor of upholding a law which banned a specific abortion method. Some abortion right activists felt the decision was "a troubling departure" from the Supreme Court's earlier rulings on abortion and feared the decision would have continued consequences for women's reproductive rights. With the number of Targeted Regulation of Abortion Providers (TRAP) laws increasing across the country, it's likely their fears are not unfounded.
In the four decades that have passed since Roe v. Wade, some states have continued to push back against the Supreme Court's influence in driving abortion policy. And given how highly debated and high-profile the issue of abortion rights remains it seems unlikely Whole Woman's Health v. Hellerstedt will be the last time we see the Supreme Court take on the issue of women's reproductive rights.