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),

[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),

[16] Kimberly Kindy, et al., “Simply states, Supreme Court nominee Neil Gorsuch is steadfast and surprising,” Chicago Tribune, (Feb. 18, 2017),

[17] Robert Verbruggen, Boring Neil Gorsuch, The American Conservative (Feb. 6, 2017),

[18] GovTrack, Proposed House Bills Related to 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),

[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?, (May 18, 2015),

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

[25] See id.

[26] Becker, supra note 19 (explaining Targeted Regulation on Abortion Providers or “TRAP” measures implemented by state legislatures).

[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, (Jan. 12, 2017), (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.

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