Planned Parenthood v. Casey Lowered the Legal Standard for Defeating Pro-Choice Rights

In 1992, under the Planned Parenthood v. Casey decision, the “undue burden” measure replaced the more rigorous "strict scrutiny" standard established under the Roe v. Wade decision. The standard recognized a state’s interest in the preservation of potential life but added that such pursuit cannot place “a substantial obstacle in the path of a woman's choice” and further specified that "unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right." Despite this language, the court has allowed states to impose regulations such as waiting periods and parental consent rules for minors but never a pre-viability ban on abortion—until recently. In 2021, the largest volume of abortion restrictions on record were introduced. Those restrictions come in many forms and limited access to abortion at all stages of pregnancy. A total of 561 restrictions were introduced by all but three states. Of the restrictions introduced, over 100 were enacted into law. The scope of limitations has also expanded and many qualify as an abortion ban; including total bans, trigger bans, reason bans and gestational bans that begin at zero weeks in Arkansas, followed closely by six weeks in Texas and 15 weeks in Mississippi. Of the state gestational bans enacted last year, 12 function as near-complete abortion bans. For example, so-called heartbeat laws enacted in Idaho, Texas, Oklahoma and South Carolina ban abortion once a fetal heartbeat is detected, typically at six weeks gestation and oftentimes before a woman knows that she is pregnant. Overall, 43 states today prohibit or limit abortion at specific points in pregnancy. Standing bills or “trigger laws” that would automatically outlaw abortion if Roe were overthrown are held on the the books of 13 states — including Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming. In total, 26 states have laws or constitutional amendments in place that would ban abortion if Roe were rescinded entirely or in part. Reason bans, ostensibly to further justice in equality, restrict the procedure if the decision is based on gender, race or disability. Arizona, for example, signed an extensive abortion bill in April 2021 that banned the procedure when it is sought for a survivable genetic disorder, such as Down syndrome. Other limitations use varying means to restrict access to the procedure and include regulations on multiple abortions; restrictions on the method and distribution of medication abortion; mandatory ultrasound requirements; proscriptions on private insurance coverage and public funding, and parameters around physician and hospital requirements. Compliance with non-medical requirements (such as parental or spousal involvement, counseling and waiting periods from 18 to 72 hours) are also imposed. Even setting aside the functional and looming abortion bans of the past year, the measure of an undue burden has been applied inconsistently. As demonstrated in Casey itself, which challenged several abortion rights provisions, the Court upheld all except the requirement of a woman seeking an abortion to notify her husband. Doctor-patient informed consent, guardian consent and waiting periods were all allowed to stand, all unduly burdensome by any measure.