The US Supreme Court and the Future of Reproductive Health.

Abstract

I n the decades since reproductive health rights emerged as an issue before the US Supreme Court, there never has been a term quite like the current one, which will conclude several months before the 2016 presidential election. The origins of the Court’s involvement with reproductive rights can be traced to Griswold v Connecticut (381 US 479 [1965]), which established a constitutional right to marital privacy in the use of contraceptives. Eight years later, in Roe v Wade (410 US 113 [1973]), in a 7 to 2 ruling, the Court held that women’s access to abortion was a protected constitutional right that could be strictly limited only once the third trimester of pregnancy was reached. Nearly 20 years later, in Planned Parenthood of Southeastern Pennsylvania v Casey (505 US 833 [1992]), the Court significantly altered Roe’s broad, trimester-based framework. Although technically upholding Roe, a more conservative majority redefined the constitutional standard, permitting states to enact laws restricting abortion before fetal viability but barring laws that imposed an “undue burden” on access to abortion, including “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.” The politics of abortion led to a barrage of increasingly intrusive laws. For decades federal law has barred virtually all public funding for abortion. Federal law now bars “partial birth” abortions, a specific type of pregnancy termination procedure, regardless of whether it is carried out before or after viability (Gonzales v Carhart, 550 US 124 [2007]). Since 2010, states have enacted 282 abortion restrictions that run the gamut from the targeted regulation of abortion providers distinct from other routine, outpatient surgical procedures (of which abortion is the most common) to laws requiring waiting periods, restricting medication abortions, and curtailing access to abortion after the first trimester.1 Opponents of abortion actively