Abortion– Roe, Casey, and what’s going on in the Senate. It’s complicated!

Honestly, it’s been pretty hard to get a straight explanation of just what’s going on in the Senate with abortion legislation.  And it doesn’t help that your typical political reporter could have really benefited from my PS 310 class and seems to have no idea of the difference between Roe v. Wade and Casey v. Planned Parenthood.

There’s lots of talk of this just “codifying Roe” but that’s actually very different than codifying the status quo, because the status quo is Casey.  Additionally, it actually does go beyond codifying Roe, by preventing any limits before 20 weeks, whereas Roe prevented any limits in only the first trimester (about 13 weeks).  

Roe basically held: 1st trimester = no restrictions; 2nd trimester = restrictions are permissible, but not complete ban. Casey, in contrast moved to a pre versus post viability standard where restricts are permissible pre-viability, so long as they do not place an undue burden on a woman’s ability to obtain an abortion.  What’s an “undue burden?”  A “substantial obstacle.”  What’s a substantial obstacle?  Whatever courts say.  And in Whole Women’s Health vs. Hellerstedt, the Supreme Court ruled that restrictions that basically shut down clinics are an undue burden.  What’s not been ruled an undue burden?  The state providing anti-abortion information.  Required ultrasounds. Parental consent.  Waiting periods up to 3 days.  That’s all status quo in a variety of states under Casey. (I actually have an exam question for PS 310 that basically asks students to explain all this). 

Now, personally I think we are better off without these restrictions because they are almost all bad-faith attempts to make abortion harder to get rather than good faith efforts to right by women’s health.  But, the reality is that this is the status quo and “codifying Roe” does go beyond this and changing the limit to 20 weeks from first trimester definitely goes beyond Roe.  

And again, part of the problem is that in one way– early abortion is legal– Roe is the status quo.  But, in another– we do allow a lot of restrictions so long as they are not an undue burden– Roe is not the status quo.  And my guess is that many of the reporters writing the stories about what’s going on in the Senate don’t even get this.  

I was trying to figure out just what the Manchin/Murkowski/Collins alternative is and NPR was little help:

Focus could now turn to efforts from more moderate Republican Senators Susan Collins of Maine and Lisa Murkowski of Alaska who are drafting a narrower approach to the WHPA legislation. That bill would also aim to codify Roe in some form, but it has restrictions that many Democrats do not support.

Democratic Senator Tim Kaine of Virginia said he’s having “productive discussions” with Collins about that legislation but he acknowledged that even that bill, should it come together, would not immediately have enough support to pass.

I literally had to go to Murkowski’s website to finally have it explained.  Short version– it codifies the Casey status quo.  

Also, I’m going to go with the… yes, there’s too many bad-faith restrictions, but at least try and pass the bill that Codifies the Casey status quo.  Sure, Republicans will very likely filibuster this effort, but, as long as it’s symbolic, how about the symbol of “we got the majority of the Senate, including every D and multiple R’s to vote for this” versus “we couldn’t even get a majority” (because we insisted upon making liberal activists happy”).  


About Steve Greene
Professor of Political Science at NC State http://faculty.chass.ncsu.edu/shgreene

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