The 40th anniversary of the landmark abortion decision, Roe v. Wade, arrived on a frigid Tuesday without the annual anti-abortion march to the steps of the U.S. Supreme Court.
That march, which generally draws thousands to the nation's capital, will take place on Jan. 25 and reflects the continuing controversy in the public, political and legal arenas surrounding the justices' 1973 ruling. (Atlanta's march occurred Tuesday at the state Capitol.)
This year, one lawyer marks his 30th anniversary on the abortion legal battlefields. Roger Evans, senior director of public policy litigation and law at Planned Parenthood Federation of America, is a familiar name and face to those who have followed abortion litigation in state and federal courts. His department also provides strategic legal advice on legislation in Congress and state legislatures; regulatory issues at the national, state and local levels; and other issues, such as judicial nominations.
Evans, a graduate of New York University School of Law, has been the lead or co-counsel in a number of Supreme Court cases, including Gonzales v. Planned Parenthood, a 2007 decision in which a 5-4 court rejected the organization's challenge to the federal Partial-Birth Abortion Ban Act of 2003; Planned Parenthood of Southeastern Pennsylvania v. Casey, a 5-4, 1992 decision reaffirming Roe v. Wade; Rust v. Sullivan, a 5-4, 1991 decision in which Planned Parenthood and others unsuccessfully challenged a gag order on abortion counseling by recipients of Title X family planning funds; and Webster v. Reproductive Health Services, a 5-4, 1989 decision rejecting a challenge by Planned Parenthood and others to Missouri restrictions on women's access to abortion.
Supreme Court Brief, an affiliate of the Daily Report, asked Evans for his thoughts on abortion litigation on Roe's 40th anniversary.
When you joined Planned Parenthood in 1983, Roe v. Wade was marking its 10th anniversary. What do you recall of the atmosphere and politics surrounding the abortion right at that time? Was it notably different than it is today?
I think the atmosphere and politics were pretty much the same then as now.
What is different is the courts and the direction in which the law is moving. In 1983, the jurisprudence applying Roe was strongly protective of the right of a woman to choose abortion prior to the point in time that the fetus was viable. Likewise, the jurisprudence strongly protected the doctor-patient relationship from intrusion by the state.
Since then, I think it clear that the courts have weakened the doctrinal protections of this right. Indeed, outside the political context, I think we can no longer refer just to Roe, but must refer to Roe/Casey, recognizing that Planned Parenthood v. Casey changed significantly the judicial analysis applicable to this area of the law. Roe/Casey is characterized by increasing deference to so-called state interests at the expense both of the woman's individual liberty interests and of the sanctity of the doctor-patient relationship at least in the context of abortion care.
Recent news articles about Roe at 40 have presented two very different pictures of the status of the abortion right today. In one report, the picture is grim, noting that last year, states approved 92 abortion restrictions, more than three times the number in any year since 1985, according to the Guttmacher Institute. A different report was more upbeat, noting widespread protests against anti-abortion measures, a backlash against attacks on Planned Parenthood, and the election to Congress last year of 22 supporters of the abortion right. How do you see the status of the abortion right today?
In the context of the federal Constitution, I think the right is imperiled on two levels. First, as noted above, federal courts have grown increasingly deferential to the political branches, and are allowing increasing restrictions that both burden the right and allow increased state intrusion into the doctor-patient relationship. Second, while everyone who handicaps the Supreme Court has his or her own head count of the number of votes on the court prepared to overrule Roe/Casey, I think this possibility, perhaps as close as just one vote away, is much closer than the vast majority of Americans understand.
The right of a woman to choose abortion has been part of the fabric of our society for two generations, and is both a freedom and a health care decision central to women's lives and to the public health of our society. I believe much of what unfolded in the recent national elections reflects how unacceptable it would be to the majority of Americans if the right was withdrawn from the panoply of individual liberties protected by the U.S. Constitution.
What kinds of court cases is Planned Parenthood involved in today?
We are involved in several cases challenging various legislative and executive actions intended to disqualify Planned Parenthood affiliates from eligibility for participation in publicly funded health care programs. These initiatives are remarkably terrible public health policy. They would prevent access primarily for women seeking birth control services, cancer screening and sexually transmitted disease testing and treatment, and other forms of primary care services, solely because outside these programs and with nongovernmental funds (except to the extent permitted by these programs), Planned Parenthood provides abortion care and engages in public education and advocacy to protect the right to safe and legal abortion care.