Reframing Roe: Legislating Restrictions in the Current Political Climate

By: Allison Houser

Norma McCorvey, famously known as plaintiff “Jane Roe”, passed away on February 18, 2017.[1]  Her case, Roe v. Wade, made it all the way to the Supreme Court in 1973 and effectively legalized abortion in all 50 states.[2]  At the time of her death, McCorvey was a converted pro-life activist, dedicated to undoing the decision.[3]  Many pro-choice activists now worry about the future of Roe under the new administration and a Republican-controlled Congress.

Since Roe, states have sought to push the envelope by regulating abortion services.[4]  In 1992, the Supreme Court examined the constitutionality of Pennsylvania’s statutory provisions regarding abortion.[5]  The Court upheld the state’s provisions requiring informed consent, parental consent for minors, and reporting requirements for abortion facilities.[6]  The only provision struck down by the Court involved spousal consent, which the plurality opinion described as giving the husband “veto power over his wife’s decision”.[7]  The Court also replaced the trimester framework of Roe with a “viability framework”.[8]  This allowed states to prohibit abortions earlier in a women’s pregnancy, citing that advances in medicine have made it so a fetus is viable as early as twenty-three or twenty-four weeks.[9]  States using the new framework are free to pass laws to further an interest in fetal protection, so long as laws do not create an undue burden on a women’s constitutional liberty.[10]

In 2013, Texas passed House Bill 2 which included a number of regulations aimed at abortion service providers.[11]  The Texas law required doctors performing abortions to have admitting services at a hospital within thirty miles of the abortion clinic and that abortion clinics meet the facility requirements of ambulatory surgical centers.[12]  These provisions effectively limited the number of clinics in Texas from about forty to twenty.[13]  In a 5-3 opinion, issued in June 2016 after Justice Scalia’s death, the Supreme Court ultimately struck down these provisions as unduly burdensome on a woman’s constitutional right to abortion.[14]

Not long after this decision was announced, Republicans had an enormous victory in the November 2016 elections.  Donald Trump won the presidency and Republican officials won a majority in both the House and the Senate.  Less than a week in office, Trump reinstated the controversial “Mexico City Policy”, first introduced in 1984, which restricts foreign organizations that receive U.S. funding from performing abortions or promoting abortion services.[15]  The president has also nominated a conservative, Neil Gorsuch, to fill the vacant seat on the Supreme Court.[16]  If the Senate approves his nomination, the Court will be split 4-4 between historically conservative and liberal justices, with Kennedy considered to be the swing vote in certain politically charged issues like abortion.[17]

With the Republican party seemingly holding a political mandate, the introduction of anti-abortion bills has surged in last several months.  Twenty-six federal bills relating to abortion regulation are currently pending in the House.[18]  As of January, over forty-six anti-abortion bills have been filed or introduced in at least fourteen states.[19]  In Missouri alone, fifteen separate bills have been introduced restricting abortion rights; one even proposing criminal misdemeanor charges for doctors who perform abortions based on the fetus’s Down Syndrome status.[20]

After the Court abandoned the trimester method in Casey, state lawmakers have greater deference in defining when a fetus is viable for purposes of abortion prohibition.[21]  Bills in six different states seek to redefine fetal viability timelines; one of the most widely proposed is a ban on twenty-week abortions.[22]  These bills, referred to as Pain-Capable Unborn Child Protection or Unborn Child Protection from Dismemberment, rely on a recent study that claims a fetus is capable of feeling pain as early as twenty weeks, contrary to previously accepted studies.[23]  One resolution reached by Missouri’s House of Representative’s proposes a constitutional amendment to be offered to voters on the 2018 ballot.[24]  If passed, the amendment would redefine personhood to the time of conception, effectively making all abortions illegal within the state.[25]

Bills in various states propose “TRAP” measures, which seek to regulate the abortion providers, much like Texas’s House Bill 2 that was ultimately struck down.[26]  In February, Rep. Justin Humphrey introduced a bill in Oklahoma that would require women to get the written informed consent of the father, at her expense, prior to receiving an abortion.[27]  The bill also outlines that if paternity is contested, the father must pay for a paternity test.[28]  These measures, especially in cases of contested paternity, could delay the process, putting women within the range of prohibited late-term abortions.  Using the guidelines set out in Casey, this consent regulation would constitute an undue burden on a woman’s right.[29]

In Kentucky, two anti-abortion bills were introduced in the first few hours that the Republican controlled legislature opened after the most recent election.[30]  Both bills were rapidly passed and signed into law by the governor.[31]  The ACLU has already filed suit to block the legislation.[32]  It is unclear how many of the other bills introduced will be passed into law.  Undoubtedly, pro-choice groups will challenge the more restrictive statutes, perhaps all the way to the Supreme Court.  The question remains: will these challenges be met by a Supreme Court bench more sympathetic to pro-life arguments.


[1] Robert McFadden, Norma McCorvey, ‘Roe’ in Roe v. Wade, Is Dead at 69, New York Times (Feb. 18, 2017), https://www.nytimes.com/2017/02/18/obituaries/norma-mccorvey-dead-roe-v-wade.html.

[2] See Roe v. Wade, 410 U.S. 113 (1973).

[3] McFadden, supra note 1 (contributing McCorvey’s shift of opinion to her religious reformations, once as a born-again Christian Baptist and then to Roman Catholicism).

[4] Scott Moss & Douglas Raines, The Intriguing Federalist Future of Reproductive Rights, 88 B.U. L. Rev. 175-181 (2008) (commenting on renewed efforts to amend Roe after Casey).

[5] See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).

[6] See id at 838-841 (explaining that women seeking an abortion must receive specific information from a doctor at least twenty-four hours before the procedure).

[7] See id at 837-38.

[8] Id. at 837.

[9] See id at 860.

[10] Id. at 837-38.

[11] Whole Woman’s Health v. Hellerstedt, 136 S.Ct. 2292, 2296 (2016).

[12] Id. at 2296.

[13] Id. at 2298.

[14] Id.

[15] Teresa Gilbert, President Trump’s Mexico City Policy Executive Order Compounds Already Restrictive U.S. Policy on Abortion Access Worldwide, Am. U. J. of Gender, Soc. Pol. & the L. Blog (Feb. 13, 2017), http://www.jgspl.org/president-trumps-mexico-city-policy-executive-order-compounds-already-restrictive-u-s-policy-abortion-access-worldwide/.

[16] Kimberly Kindy, et al., “Simply states, Supreme Court nominee Neil Gorsuch is steadfast and surprising,” Chicago Tribune, (Feb. 18, 2017), http://www.chicagotribune.com/news/nationworld/politics/ct-supreme-court-nominee-neil-gorsuch-20170218-story.html.

[17] Robert Verbruggen, Boring Neil Gorsuch, The American Conservative (Feb. 6, 2017), http://www.theamericanconservative.com/articles/boring-neil-gorsuch/.

[18] GovTrack, Proposed House Bills Related to Abortion, Congress.gov, https://www.govtrack.us/congress/bills/browse#text=abortion (last visited Feb. 23, 2017) (noting that three bills concerning protection of abortion rights have also been introduced).

[19] Olivia Becker, At Least 46 Anti-Abortion Bills Are Already in Front of State Legislatures, Vice News (Jan. 12, 2017), https://news.vice.com/story/at-least-46-anti-abortion-bills-are-already-in-front-of-state-legislatures-in-2017.

[20] Becker, supra note 19.

[21] See Casey, 505 U.S. at 837, 860.

[22] Becker, supra note 19.

[23] Dave Levitan, Does a Fetus Feel Pain at 20 Weeks?, FactCheck.org (May 18, 2015), http://www.factcheck.org/2015/05/does-a-fetus-feel-pain-at-20-weeks/.

[24] H.J. Res. 18, 99th Gen. Assemb., 1st Reg. Session (Mo. 2017).

[25] See id.

[26] Becker, supra note 19.

[27] H.B. 144, 56th Leg., 1st Sess. (Okla. 2017).

[28] See id.

[29] See Casey, 505 U.S. at 837 (holding spousal consent as unduly burdensome).

[30] Andrew Beck, We’re Suing to Keep Kentucky Politicians Out of the Exam Room, ACLU.org. (Jan. 12, 2017), https://www.aclu.org/blog/speak-freely/were-suing-keep-kentucky-politicians-out-exam-room (explaining that one regulation bans abortions after 20 weeks and the other requires abortion providers to show the woman an ultrasound).

[31] Beck, supra note 30.

[32] Beck, supra note 30.