Today in 1989: Pennsylvania’s Abortion Control Act becomes law

November 18, 2011

Today in Legal HistoryOn November 18, 1989, Pennsylvania’s Abortion Control Act was signed into law by Governor Bob Casey.

The law is significant for several reasons.

First, it was the first attempt by a state to limit abortion rights after 1973’s Roe v. Wade Supreme Court ruling.

Second, the legal challenge to the Act eventually led to the landmark Supreme Court decision Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992.

Both of these are related to one another, and to the larger legal trend in abortion rights.

As mentioned above, the Abortion Control Act was intended to limit, but not erase, abortion rights.

Specifically, the original Act did so through the following:

  • An “informed consent” provision requiring, at least 24 hours in advance, the physician performing the abortion to inform the pregnant woman of
    • alternatives to abortion;
    • the risks associated with the procedure;
    • the estimated gestational age of the child at the time of the procedure; and
    • the possible availability of state economic assistance for prenatal care, childbirth and neonatal care.
  • A “spousal notification” provision requiring women to give prior notice to their husbands.
  • A “parental consent” provision requiring unemancipated minors to receive consent from a parent or guardian prior to the abortion.
  • A mandatory 24-hour waiting period between a positive pregnancy test and obtaining an abortion.
  • A provision requiring clinics to report to the state an extensive list of demographic information on every woman to undergo an abortion.

The Supreme Court plurality in Casey upheld all but the “spousal notification” provision as constitutional.

Yet, the decision is generally not considered a loss for abortion rights proponents.

Why?

Because of shifts to the Supreme Court’s political alignment since 1973, many pro-choice (and pro-life) advocates expected the Court to overturn the 19-year-old Roe decision.

In fact, at the time that Casey reached the Supreme Court, only two Justices – Harry Blackmun and John Paul Stevens – were known supporters of abortion rights.

The other seven were either known opponents of the Roe ruling, or recently-appointed by a Republican presidential administration, and thus widely expected to oppose Roe.

However, Sandra Day O’Connor and David Souter surprised everyone by coming out in support of Roe.

Nevertheless, there was still a five-Justice majority in favor of not only upholding Pennsylvania’s law, but of striking down Roe entirely.

Shortly before a decision was reached by the Justices, Anthony Kennedy also switched sides, assuring the survival of Roe beyond the Casey decision.

Abortion opponents, though disappointed with Roe’s survival, don’t count Casey as a loss.

Though the right to abortion was upheld, the framework for considering what restrictions may be placed on that right was changed (from the “trimester framework” to the “undue burden” test), effectively allowing states more power to limit abortion rights.

Since Casey, abortion opponents across the nation have urged their state to follow Pennsylvania’s example, some with more success than others.

As a result, the constitutional provisions of Pennsylvania’s Abortion Control Act are commonplace in many states.

Moreover, Pennsylvania’s strategy on anti-abortion measures has become the template for the movement at large.

Namely, that instead of attempting to win big legal victories – like the re-criminalization of abortion – pro-life advocates instead aim for many smaller wins in the courtroom, such as Casey.

However, this strategy, while successful so far, may not necessarily be thus indefinitely.

As the Justices’ deliberation on Casey demonstrated, the Supreme Court is always full of surprises, and you can’t always predict how any Justice will come down on an issue.