Progress after Casey

by Clarke D. Forsythe/National Review

Twenty years ago today, on Monday, June 29, 1992, the Supreme Court handed down their decision in Planned Parenthood v. Casey, a tragic mistake in the view of pro-life Americans because it failed to overturn Roe v. Wade. But the whole story is far more complex.

The justices, divided 5–4, reaffirmed their 1973 decision from Roe v. Wade, which legalized abortion for any reason, at any time of pregnancy. Casey served to entrench Roe at a time when many, if not most, commentators were expecting the Supreme Court to overturn Roe and return the abortion issue to the states. Four months after the Casey decision, Bill Clinton was elected president, the first president in U.S. history to be openly (and aggressively) for abortion rights. And so the pro-life movement made some strategic changes.

As its 20th anniversary approaches, Casey is usually remembered as the Supreme Court case that allowed the states to regulate abortion. It is a reputation it has not fully earned. While Casey failed to overturn abortion, it did open a crack in the door to state regulation, which began immediately.

Casey’s initial impact was mixed. The Court modified Roe but kept the essentials — the right to the final say over abortion. One clear gain from Casey was that the Court indicated — for the first time — that it would permit the states to require that women be given detailed information about the nature, risks, and alternatives before an abortion. But deference to the states on commonsense regulations really didn’t begin until the Court’s 2007 decision in Gonzales v. Carhart.

Between 1992 and 2007, from Casey until Gonzales, the federal courts continued to impose procedural hurdles to the passage and enforcement of clinic regulations and other health and safety regulations. It was Gonzales that provided the force of law that finally permitted the states to act on the pro-life concerns of so many Americans.

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