This Friday, June 29, marks the 20th anniversary of the Supreme Court decision in Planned Parenthood of Southeastern Pennsylvania v. Casey.
I first learned about the Supreme Court decision of Planned Parenthood v. Casey about 10 years ago. I was sitting in a constitutional law class in a suburban university. It was my first introduction to abortion access restrictions whose names are now commonplace to me: mandatory counseling sessions, 24-hour waiting periods, parental consent, spousal notification, and reporting requirements.
Basically, the facts of the case look like this. In 1989, Pennsylvania amended its Abortion Control Act to require:
- the person undergoing the abortion to give informed consent and receive mandatory counseling, including alternatives to abortion.
- a 24-hour waiting period between the counseling appointment and the procedure itself.
- parental consent for minors, with available judicial bypass.
- a spousal notification requirement.
- reporting requirements for providers.
Geography, relationships, and other life realities are perfectly capable of creating their own “undue burdens.”
The state’s Planned Parenthood association challenged the statute and — fast forwarding a bunch — the case eventually ended up in the U.S. Supreme Court. In a 5-4 decision, the Court held that the standard for whether a state could enact a restriction to abortion access was whether that restriction placed an “undue burden” on the person seeking the abortion. A burden would be considered undue “if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.”
Of the restrictions enumerated in Pennsylvania’s Abortion Control Act, the Court considered only the spousal notification requirement an undue burden.
At the time, sitting in a suburban metro college city, I agreed with them. At the time, the restrictions seemed reasonable to me. I’d seen informed consent waivers before; they’d always been factual, if cautious, pieces of writing. I lived in a geographical area where “24-hour waiting period” meant one would have to drive 20 minutes out of one’s way again the next day. The parental consent issue skeeved me out — but again, I lived in a place where I perceived judges to be both fair and reasonably accessible.
Then I moved to Arizona — specifically, to Yuma. More to the point, I moved thousands of miles away from my family and social support network, with a car that barely ran and a then-boyfriend (now ex) who was verbally, emotionally, and sexually manipulative and controlling. I had a method of birth control that relied on a partner who I increasingly did not trust, which eventually led to a frightening realization.
If my contraception were to fail — which was a real possibility — and I found myself pregnant, I absolutely did not want to carry the pregnancy to term. Not only did I not want any babies, I especially did not want his baby, did not want anything that would bind us together for the indefinite future.
If I were to seek an abortion, I’d have had to drive 100 miles to Phoenix on the more or less desolate Interstate 8, in the car I referred to as “a breakdown waiting to happen.” A 24-hour waiting period would have meant depending on that car not once but twice. Finding someone either to drive me or to take care of my home obligations for the two days would have required me to disclose the situation to a relative stranger (at best) or to a partner I feared.
I quickly realized that geography, relationships, and other life realities are perfectly capable of creating their own “undue burdens.” We don’t need additional legislation to help us there.
And this was as someone relatively privileged in the grand scheme of things. It would have been tough, and tougher to do secretly, but I probably could have brought together money for both the procedure itself and the transportation costs. I had a job that would have allowed me paid time off work without fear of reprisal.
Other people in my community faced additional barriers to access: being required to obtain the permission of an anti-abortion parent or guardian; being unable to legally drive to a clinic (or — forget legalities — simply having zero transportation to get there); language barriers to ask questions of health care providers; being in a financial position where money for an abortion meant forgoing payments on food, utilities, or rent. I’ve known people in Arizona who’ve experienced unintended pregnancies while facing each item on that list. These are real things that happen to real people.
Life is pretty good at making its own burdens, and one thing the Casey decision doesn’t do very well is to require legislators to take the lived realities of their constituents into account. While some consider it a partial victory for reproductive rights because it upheld the right to an abortion established in Roe v. Wade, Casey also granted legislators more room to restrict abortion access. According to the Guttmacher Institute, 20 years after Planned Parenthood v. Casey:
- 39 states require that abortions be performed only by physicians (instead of by nurse practitioners or physician assistants)
- 40 states have limits based on gestational age. Arizona’s limit starts at 20 weeks.
- 35 states require mandatory counseling prior to abortion; 26 of these specify which information must be included.
- 26 states have mandatory waiting periods between the counseling appointment and the procedure itself. Most are 24 hours, though Utah recently enacted a 72-hour waiting period.
- 37 states require some form of parental participation for minors, most often in the form of parental consent to the procedure.
Additionally, 2011 saw the emergence of additional restrictions — including ultrasound requirements and regulations on medication abortion — in record numbers. I can’t help but think that if these collective restrictions don’t constitute an “undue burden” yet, they’re certainly getting there.