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How Sandra Day O’Connor’s legacy could make it easier to gut abortion rights

Her most influential abortion decision may contain the seeds of Roe v. Wade’s destruction.

Former Supreme Court Justice Sandra Day O’Connor in 2012
Former Supreme Court Justice Sandra Day O’Connor in 2012.
T.J. Kirkpatrick/Getty Images

Sandra Day O’Connor, the first woman ever to serve on the Supreme Court, announced on Tuesday that she will step back from public life after a diagnosis of dementia.

O’Connor’s announcement coincides with a turning point on the Supreme Court. Some of her most influential opinions in her 25 years on the Court had to do with abortion rights. A moderate on a Court that moved to the right during her tenure, she cast a crucial vote to uphold Roe v. Wade in Planned Parenthood v. Casey, and she’s often seen today as a defender of abortion rights.

Now, with the confirmation of Justice Brett Kavanaugh, the protections for abortion rights established in Roe appear more at risk than they’ve been in decades. And O’Connor’s legacy as the swing-vote protector of abortion rights will face a monumental test.

Appointed by President Reagan, O’Connor joined the Court in 1981, eight years after Roe was decided. But she was a co-author, and the core philosophical force behind, Planned Parenthood v. Casey, an almost equally influential abortion decision. Building on but also revising Roe, that case established the standard for determining the constitutionality of abortion laws that’s still in use today: These laws are invalid if they impose an “undue burden” on a woman seeking an abortion.

In many ways, Casey set the stage for abortion debates on the Supreme Court today, Mary Ziegler, a law professor at Florida State University who specializes in the history of the abortion debate, told Vox. Though the decision upheld the core of Roe, the undue burden standard it established is vague enough that today’s Court could use it to allow any number of restrictions on abortion, de facto eliminating the right to terminate a pregnancy without ever explicitly doing so. In other words, O’Connor’s famous defense of abortion rights may also have contained the seeds of Roe’s destruction.

Planned Parenthood v. Casey created the legal environment for abortion today

In 1973, Roe v. Wade established a trimester framework for evaluating abortion laws — if a law banned abortion before the third trimester, it was unconstitutional. But, of course, the controversy over abortion didn’t end, and anti-abortion groups and legislators embarked on the strategy they still use today: imposing a variety of restrictions on abortion without trying to ban it outright. In Pennsylvania, for instance, legislators passed, and Gov. Robert Casey Sr. signed, a 1989 law that imposed a 24-hour waiting period for abortions, informed consent requirements, and parental consent for minors to get the procedure. As Nina Martin of ProPublica notes, it also required married women to notify their spouses if they decided to terminate a pregnancy.

Planned Parenthood and other abortion providers challenged the law, and it came before the Supreme Court in 1992 — a time that was, politically, a lot like 2018. Clarence Thomas had just been confirmed, in a process much similar to the Kavanaugh confirmation, and, as Martin writes, “Republican appointees now clearly held the fate of abortion rights in their hands.”

In Casey, “people on both sides were expecting a decision overturning Roe, and maybe even a decision recognizing a right to life,” Ziegler said.

Instead, what they got was complicated. In some ways, Casey weakened Roe by replacing the trimester framework with the undue burden standard without giving clear guidance on what constituted such a burden, beyond striking down the spousal notification portion of the Pennsylvania law. In their plurality opinion, O’Connor and Justices David Souter and Anthony Kennedy also made reference to arguments that conservatives would later use to restrict abortion rights, like the possibility that women might regret abortions.

But the opinion also made the argument that abortion rights are an issue of equal rights for women. This argument, based on the 14th Amendment and its guarantee of equal protection under the law, is considered by many — including Justice Ruth Bader Ginsburg — to be stronger than the argument from the right to privacy that forms the basis of Roe.

Casey “in many ways not only changed the law, but gave both sides a road map for what they would want to do going forward,” Ziegler said. “Pro-choice groups would expand on this idea of equality for women and how it related to fertility control, and abortion opponents wanted to use the undue burden test to whittle away at abortion rights.”

Casey could make Roe harder to overturn but easier to gut

The Casey decision could make it more difficult to overturn Roe, both politically and from a constitutional perspective, Ziegler said. Politically, “Casey struck a bargain that much better maps onto what people think about abortion” than Roe does, she explained. In public opinion polls, most people support the right to an abortion, and most people support the government’s ability to regulate it. Allowing states to restrict abortion as long as they don’t impose an undue burden is a compromise that’s satisfying to a lot of voters, and its existence makes getting rid of abortion rights entirely a harder sell.

In terms of constitutional law, Casey also functions to reaffirm the fundamental right to an abortion established in Roe. Kavanaugh called Casey “precedent on precedent” in his confirmation hearings. While abortion rights advocates don’t put much stock in that response, noting that the Supreme Court can overturn precedent any time it wants, it’s true that Casey adds a layer of legitimacy to Roe that might make sweeping away the right to an abortion a harder decision for the Court.

But “if the court isn’t interested in openly overturning Roe, Casey also kind of provides a perfect vehicle for really whittling away at abortion rights without admitting that that’s what you’re doing,” Ziegler said, “because the undue burden standard is so ambiguous.”

The Court could simply decide that abortion restrictions that come before it aren’t unduly burdensome, opening the door for states to narrow abortion access even more than they already have, all without inspiring the kind of public outcry that overturning Roe would be sure to engender.

O’Connor’s pragmatic legacy is now at risk

O’Connor was more than a co-author of the plurality opinion in Casey. Her approach to abortion law in some way forms the backbone of the decision. She was the first Supreme Court justice to propose an undue burden test for abortion law, in the 1983 case City of Akron v. Akron Center for Reproductive Health. That test was somewhat different from the one put forth in Casey, and the differences reflect O’Connor’s evolving attitude toward Roe and abortion.

“O’Connor in some ways was more skeptical of Roe when Roe was more secure,” Ziegler said, “and more aware of some of the virtues of abortion rights when abortion rights were potentially going to be gone.”

In general, though, O’Connor tended to take a pragmatic, rather than ideological, approach to abortion decisions. She was skeptical of the trimester framework in Roe because she thought it was “asking courts to make medical decisions,” Ziegler said.

“The Roe framework,” O’Connor wrote in her dissent in City of Akron, “is clearly on a collision course with itself. As the medical risks of various abortion procedures decrease, the point at which the state may regulate for reasons of maternal health is moved further forward to actual childbirth. As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception.”

Advances in neonatal care have indeed pushed the point of viability earlier and earlier in pregnancy, and anti-abortion advocates have used this fact to argue for revisiting Roe.

When O’Connor approached abortion cases, “she was interested in knowing the facts, and less interested in abstractions,” Ziegler said. She wanted to know how laws would influence real women in their daily lives. In the case of the Pennsylvania law at issue in Casey, for instance, she paid particular attention to how the spousal notification requirement would affect women experiencing domestic violence, Ziegler said.

“There are millions of women in this country who are the victims of regular physical and psychological abuse at the hands of their husbands,” O’Connor and her co-authors wrote in Casey. “Should these women become pregnant, they may have very good reasons for not wishing to inform their husbands of their decision to obtain an abortion.”

O’Connor’s focus on the costs and benefits of abortion laws, and of abortion itself, shape the public debate on the procedure to this day, Ziegler said, which often focuses on issues like the danger of illegal abortions or the possibility that women will regret the procedure, rather than on the question of whether abortion access is a human right.

O’Connor’s brand of pragmatism didn’t necessarily square with the views of advocates on either side of the abortion debate, just as Casey wasn’t an unalloyed good for either side. But her approach did tend to take into account what Americans thought and experienced on the issue. Today, as America faces what looks like another 1992 moment for the Court, her legacy is particularly resonant.

If the Court decides to overturn Roe — something President Trump promised in his campaign — then, as Ziegler puts it, “it would be very much not O’Connor’s Court.”

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