Status of the Law

By Clarke D. Forsythe
Reprinted from National Review Online under the title Progress after Casey

Twenty years ago today, on Monday, June 29, 1992, the Supreme Court handed down its 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 Roe, 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 finally permitted the states to act on the pro-life concerns of so many Americans.

Nevertheless, after 1992, more states moved ahead to pass health and safety regulations to protect women from the substandard care in abortion clinics, like Kermit Gosnell’s in Philadelphia.

Since then, 33 states have passed informed-consent laws. Fifteen were enacted post-Casey, and fourteen of the laws enacted pre-Casey have had significant enhancements/improvements post-Casey.

Thirty-one states now have at least some form of abortion-clinic regulations in effect. Nine states enacted clinic regulations post-Casey. Fourteen states with clinic regulations enacted pre-Casey are now enhanced post-Casey. Seven more states have abortion-clinic regulations that are being challenged in the courts or are not enforced.

Thirty-eight states have parental-involvement laws in effect. Eighteen were enacted post-Casey. Eight were enacted pre-Casey, but had significant enhancements/improvements post-Casey. Twelve were enacted prior to Casey and have not been improved substantively since then.

Twenty-four states have ultrasound requirements as part of their informed consent laws. Twenty-one of these state laws were enacted over the last decade (2003–2012).

Services to women have increased significantly in the past 20 years. The pregnancy care centers allied with Care Net, for example, grew from approximately 550 in 1999 to 1,130 in 2010. In contrast, the number of abortion clinics declined from 2,200 in 1991 to 689 in 2011.

Over the past 20 years since Casey, another significant area of law has been growing — legal protection for the unborn child as a human being in the law. Virtually every state today has prenatal-injury laws that compensate for prenatal injury at any time after conception — which necessarily signifies that the life of a human being begins at conception.

There are now 38 states with wrongful-death laws that treat the unborn child as a person; approximately 11 of these protect the unborn child from conception. Thirty-seven states have fetal homicide laws, and 25 of these extend the protection from conception. Few of these laws existed before Roe or Casey.

National statistics have shown a 25 percent reduction in abortions from 1992 to 2006 (from 1.6 million to 1.2 million annually) which coincides with more regulations passed since Casey. Abortion rates fell approximately 33 percent from 1990 to 2005.

Public opinion has moved in the pro-life direction, especially against late-term abortions. New Gallup polling out this month shows a record low number of Americans designating themselves “pro-choice.” Gallup polling data shows a solid majority of Americans since at least 1975 have only supported abortion in “certain circumstances” and in the first trimester.

At the same time, support for what the Court actually did in Roe has declined. Support for abortion for any reason, at any time, declined from 12 percent to 7 percent between 2006 and 2009. One clear reason that abortion is so controversial is that the Court has sided with the 7 percent since 1973.

The partial-birth-abortion debate was nationalized in 1995 when congressional hearings were first held. The debate on late-term abortion has positively affected public opinion. Since the Gonzales decision in 2007, approximately 10 states have passed laws that prohibit abortion after 20 weeks.

We’ve known since the 1990 Gallup poll that most Americans consider abortion to be murder or the taking of human life, while a majority thinks that abortion should be legal. This is the myth of legal abortion as a “necessary evil”; many think legal abortion of some kind is needed because abortion laws won’t make much of a difference. But this myth is progressively undermined by the enforcement of laws that have reduced abortions, and by fetal-homicide and wrongful-death laws that the vast majority of Americans support.

An unheralded but deeply significant change since Casey has been the growth in international data on the risks of abortion to women. More than 120 peer-reviewed medical studies have found an increased risk of preterm birth after abortion. And over 100 peer-reviewed medical studies have found an increased risk to mental health after abortion. The old claim that abortion is safer than childbirth is no longer credible.

Progress over the past 20 years has come through a combination of pursuing long-term goals of comprehensive legal protection for the unborn child, and complementary policies that reduce abortion year by year, and direct services to women that encourage positive alternatives to abortion. That includes containing abortion as much as possible, highlighting the negative impact on women, and encouraging political leadership in Congress and in the states. Step by step, the pro-life movement has been working toward reversing Roe — an opportunity that Casey missed.

Some progress has been the result of doors cracked open by Casey, but much more is attributable to perseverance, ingenuity and prudence, as well as taking advantage of new opportunities over the past 20 years since Casey.