Law, College of


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Bradford in Arizona Law Review 35 (1993). Copyright 1993, University of Arizona. Used by permission.


Since 1973, states have effectively been prohibited from regulating most abortions. As every lawyer, law student, and almost every other American adult knows, the United States Supreme Court held in Roe v. Wade that a woman has a constitutional right to have an abortion. It is also common knowledge that in recent years the Supreme Court has been slowly restricting, or refusing to extend, that right.

The future of Roe v. Wade is uncertain, particularly after the Supreme Court's most recent abortion decision, Planned Parenthood v. Casey. The actual restrictions on abortion upheld in Casey are less important than the positions of the various justices. Four justices in Casey voted to overrule Roe and eliminate entirely the constitutional right to obtain an abortion. Three justices reaffirmed the constitutional interest underlying the right to abortion, but modified the standard for reviewing restrictions on abortion. Their plurality opinion indicated that a state still may not constitutionally prohibit abortion altogether, but adopted an "undue burden" standard to evaluate restrictions on the abortion of a nonviable fetus. Only two justices completely endorsed Roe.

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