In April 1992, Kathryn Kolbert walked into the chambers of the Supreme Court to argue the biggest case of her career—one that would decide whether abortion would remain legal in the United States.
Kolbert had spent years in court defending clinics against anti-abortion legislation, but when she stood before Supreme Court justices that spring to defend Planned Parenthood against Pennsylvania legislation threatening to overturn Roe v. Wade, she didn’t think her previous experience would help much. She knew there were only two justices who supported Roe. The remaining justices had track records for opposing the 1973 decision, and one of them had been among the two dissenters of the original abortion ruling.
Kolbert believed there was nothing she could do to win the case, Planned Parenthood v. Casey—and she felt certain that as a result, Roe would fall.
“If you’re arguing a case before the Supreme Court, you have to find five votes, and there’s no substitute for that,” said Kolbert, who was an attorney with the American Civil Liberties Union (ACLU) at the time. “We did not see the fifth vote.”
Instead of focusing on winning over the minds of Supreme Court justices hostile to Roe—unwinnable, in her estimation—Kolbert shifted her attention outside the courtroom. Her goal was to make sure the rest of the country understood what was at stake, and strengthen the pro-choice movement so Americans could win back abortion rights through federal legislation after the justices inevitably overturned Roe v. Wade. She would work closely with pro-choice groups and hammer home in her arguments that what the justices decided in Planned Parenthood v. Casey was really a decision on Roe. Yet even with this aggressive strategy she was sure she would lose.
But the justices surprised Kolbert, and much of the country, when in June 1992, they upheld Roe in a 5-4 ruling. It was almost otherwise—Justice Anthony Kennedy changed his mind at the last minute, persuaded by Justices Sandra Day O’Connor and David Souter. “Kennedy thought there was nobility in judging; saving Roe would show the world that the justices were something more than mere pols,” Jeffrey Toobin wrote in his 2008 book on the Supreme Court, The Nine.
Kolbert believes the outrage from pro-choice activists contributed to swaying Kennedy, and convincing other conservative members of the court they should uphold Roe.
“There was such an outcry from people who were fearful of losing their rights that justices became concerned about the institutional integrity of the court,” Kolbert explained.
Twenty-seven years after the Casey decision, abortion-rights advocates find themselves in a strikingly similar position. Since January, nine states have passed abortion bans, some of which have no allowances for rape and incest. Conservative lawmakers are more forthcoming than ever about their longtime strategy of passing increasingly severe laws to get them before the nation’s highest court. President Donald Trump, who pledged to appoint only “pro-life judges” to the court, has given it a conservative-leaning majority once again. And though justices recently declined to rule on an Indiana abortion law, they are expected to take up a challenge to a Louisiana law in the coming months. If they decline to hear that one too, there are several other cases in the pipeline that could serve as vehicles for overturning or dismantling Roe.
Once again, supporters of abortion rights believe a future without federal abortion protections is just around the corner; for their opponents, victory seems well within reach.
Revisiting Planned Parenthood v. Casey can help explain much of the current climate. Though the lesser-known abortion ruling reaffirmed Roe v. Wade, it also established the “undue burden” test, a looser interpretation of Roe that has allowed conservative politicians to pass hundreds of incremental restrictions on the state level, chipping away at abortion rights over decades. But the case also gave the pro-choice movement a historic organizing opportunity, helping it become the political force it is now—and preparing its advocates for the fight ahead.
“We weren’t as strong then as we are today,” said Eleanor Smeal, the founder and president of the Feminist Majority Foundation. “We’re much better organized now, and we know what we have to do.”
In Planned Parenthood v. Casey, justices ruled on an omnibus of abortion restrictions crafted by Stephen Freind, a Republican state representative in Pennsylvania. Known as the 1989 Abortion Control Act, the legislative package included a spousal notification requirement, a parental consent requirement, a 24-hour waiting period, and a mandate that abortion clinics provide the state with extensive information about patients who receive abortion care. Planned Parenthood sued the state, arguing that Roe v. Wade made such restrictions blatantly unconstitutional because the decision guaranteed Americans’ constitutional right to abortion before fetal viability, and these requirements put that right in jeopardy. (The "Casey" in the suit was Pennsylvania Governor Bob Casey, who signed the restrictions into law; he was the father of current Senator Bob Casey Jr., a "pro-life" Democrat.)
“We weren’t as strong then as we are today. We’re much better organized now, and we know what we have to do."
The anti-abortion measures weren’t without precedent—seven years earlier, Pennsylvania had attempted to enact a slightly different set of restrictions, only for the law to be deemed unconstitutional by the Supreme Court in1986. But conservative Pennsylvania lawmakers remained undeterred: Freind, who led the state’s attacks on abortion rights, knew he still had the votes to push through similar measures restricting abortion. During his tenure, the Pennsylvania state legislature passed an anti-abortion law nearly every year; Freind brags he never lost a vote.
“Legislators in other states would call me for advice on how to advance [anti-abortion] legislation,” Freind said. “I was terrified because I was the point man, and because everyone was watching us.”
On the pro-choice side, Smeal and other feminist leaders were plotting a plan of attack for what they felt certain would be a losing fight. In the years leading up to Planned Parenthood v. Casey, Smeal, who was just beginning her tenure at the Feminist Majority Foundation, said there had been several “emergency meetings” about the escalating threats to Roe, but when they discussed organizing mass demonstrations in protest, there were concerns about the movement’s numbers and organizing power.
“Legislators in other states would call me for advice on how to advance anti-abortion legislation. I was terrified because I was the point man, and because everyone was watching us."
When Smeal proposed the March for Women’s Lives on the National Mall in 1986, she said some feared not enough women would come out to make an impact. Instead, about 100,000 people attended the march, and, three years later, the group turned out at least 300,000 for protests in advance of the Supreme Court’s Webster v. Reproductive Health Services decision, which allowed states to restrict the use of public funding and facilities for abortion care, and bar public employees from performing abortions.
By the time 1992 came around, Smeal said, the movement had gotten stronger and more organized. Feminist groups held another March for Women’s Lives, days before arguments began for Planned Parenthood v. Casey, where at least half a million people gathered—one the largest crowds ever to march in the Capitol at the time.
Toni Van Pelt, the president of the National Organization for Women (NOW), said that for many women, the 80s protests surrounding conservative Supreme Court appointments, as well as the marches for abortion rights that followed, were political awakenings—much like the 2017 Women’s March or the outrage over Brett Kavanaugh’s Supreme Court confirmation. These demonstrations helped pro-choice activists grow their movement, and gave them an opportunity to show their adversaries just how many people they would alienate if abortion rights were overturned.
“We were leading protests in the streets, calling our legislators, and we’d also been opposing these Supreme Court justices as soon as they were appointed,” Van Pelt said. In short, she continued, it was a time when the pro-choice movement developed the “playbook” it relies on now.
It was also a time that the feminist movement became more inclusive. Just two years before Casey, scholar Kimberlé Crenshaw invented the term “intersectionality” in a seminal paper on Black women’s oppression, asserting that race, class, gender, and other social factors combine to create people’s specific life circumstances. With Crenshaw’s theory in mind, mainstream feminist organizations like NOW, then led by Patricia Ireland, reached out to civil rights and LGBTQ groups to broaden their message.
“Intersectionality wasn’t so much a new concept, but it got a name,” Ireland said. “I would like to think something of a hallmark of my presidency [was] that I enhanced and expanded NOW’s connections with other social justice movements—that was the only way we were going to win.”
Pro-choice organizers began to argue that the fight to preserve Roe was no longer just about abortion rights, but “reproductive justice”—an emerging term that acknowledged the full matrix of socioeconomic factors that influence women’s ability to control their own bodies. While the term had been circulating before Casey, black feminists officially coined “reproductive justice” at a 1994 pro-choice conference.
“We were talking more about how poor women had a harder time gaining access to contraception and abortion, as well as having children and raising them to be healthy,” Ireland said. “So yes, we were very focused on abortion, but we also began to focus on a much bigger concept we now call ‘reproductive justice.’”
Kolbert relied heavily on this network of abortion rights organizers when she was litigating Casey. She had regular meetings with the leaders of some 40 to 50 pro-choice groups at the time, where they would discuss strategy and messaging.
Inside the courtroom, she wanted to make it clear that the Supreme Court's decision would be a direct ruling on Roe—an implication some justices wanted to dodge, according to Toobin. “[Justice David] Souter did not want to acknowledge that the only choice in Casey was to make an up-or-down judgment on Roe,” he wrote in The Nine. “He wanted the flexibility to rule on the specifics of the Pennsylvania statute, without necessarily passing on the ultimate issue of Roe v. Wade.”
Kolbert squashed that idea in the very first sentence of her opening statement: “Whether our Constitution endows government with the power to force a woman to continue or end a pregnancy against her will is the central question in this case,” she said.
Emphasizing this point was among the central missions of pro-choice activists at the time, some of whom were concerned about confusion among the general public. “You had to wake people up and get them to understand that this wasn’t just about abortion rights in Pennsylvania,” Smeal said. “We had to make sure everyone knew it would affect everyone if we lost the standard Roe established.”
Kolbert also wanted to make Planned Parenthood v. Casey as political as possible. With the 1992 presidential election fast approaching, Kolbert sought to make sure the Supreme Court handed down its decision overturning Roe v. Wade in time for voters to express their outrage at the ballot box. Kolbert expedited the trial as much as she could, first by appealing directly to the Supreme Court rather than asking the Third Circuit appeals court to rehear the case, then taking just three weeks to file a petition to the court to take up the case despite the three-month deadline she’d been given. Meanwhile, pro-choice groups flexed their growing numbers with protests and demonstrations intended to show anti-choice politicians that they would be pay the price on Election Day.
With the 1992 presidential election fast approaching, Kolbert sought to make sure the Supreme Court handed down its decision overturning Roe v. Wade in time for voters to express their outrage at the ballot box.
“We wanted to show the extent to which there was going to be political consequences to taking away the right for women to make this decision,” Smeal said. “Women were going to remember in November.”
Feminist leaders say that’s just one more thing that’s different now: Organizing can happen much faster, and large swaths of the American electorate appear to understand more clearly the gravity of anti-abortion legislation. In the hours after Alabama Governor Kay Ivey signed a near-total abortion ban last month, people flooded local and national abortion funds, leading to a massive spike in donations. Days later, thousands of abortion rights supporters attended the more than 400 “Stop the Bans” rallies across the country, with calls to protect Roe v. Wade.
Women in particular have become unapologetic about speaking out for abortion rights, Kolbert said—a huge boon for the contemporary movement to preserve Roe. “The vast majority of Americans believe in choice, and that’s a place of political power,” Kolbert said. “What I learned in Casey more than anything is that, up until [1992], we didn’t want to assert that power. It felt uncomfortable. Women didn’t want to make waves.”
Some believe female outrage, now widely recognized as an effective political tool, has a big role to play in fighting current threats to federal abortion rights. If the Supreme Court doesn’t want to be perceived as a political body, if it cares about its institutional integrity, and if it has any modicum of concern about public opinion, perhaps the best way to protect Roe v. Wade is being as loud as possible about it.
“I think we’re going to see women continue to not play nice on this one,” said feminist author and journalist Jill Filipovic. “The response to these encroachments [on abortion rights] isn’t just going to be, ‘I’ll donate money to Planned Parenthood.’ It’s going to be angry, and loud, and visible. I’m hopeful the judges on the court will see that and calculate the cost.”
Not every justice on the court may be equally invested in the public perception of it, Filipovic said, but she believes there’s still an opportunity to impact how it rules on Roe, or if it decides to take up a case challenging federal abortion rights to begin with.
“I do think the public can still sway the court on this question,” she continued. “Keeping pressure on the court can be tremendously effective.”
Not everyone agrees on which lessons from Casey are applicable to current events. Despite Kolbert’s belief that public outcry had a degree of influence on the Supreme Court’s decision to uphold Roe, she also cautions against optimism that the same tactic will work in 2019. “I was surprised it was effective in ‘92, but I would be more surprised if it were effective today,” she said.
Kolbert insists that the fact that justices decided against overturning Roe v. Wade in 1992 doesn’t disprove her initial calculation—that she needed five votes to win and had no path forward short of that. As she puts it, she merely had a fifth vote she didn’t know she had in Kennedy, who defected from the court’s bloc of Republican-appointed justices in the 5-4 decision.
"I was surprised it was effective in '92, but I would be more surprised if it were effective today."
It turned out that the court had a vested interest in preserving its integrity, and following its own precedents—something justices on the current court have shown little regard for as of late. Last June, the court overturned its own ruling in Janus v. AFCME, and in May did the same in Franchise Tax Board of California v. Hyatt. Neither case had to do with abortion, but each erased 40 years of precedent.
Many consider the tax case a sign that justices would not shy from doing the same with Roe v. Wade, including the court’s liberal justices: In his dissenting opinion on Hyatt, Stephen Breyer cited Planned Parenthood v. Casey in a warning to his conservative colleagues about overturning precedent. “Today’s decision can only cause one to wonder which cases the Court will overrule next,” Breyer wrote. When the Supreme Court voted to override its own ruling once again on Friday, Justice Elena Kagan added: “Well, that didn’t take long.”
That doesn’t mean political organizing is for naught. Pro-choice organizers say that since they can no longer depend on the court to stand by its past rulings, the fight to protect abortion rights must now be fought primarily through electoral politics—just as Kolbert recognized in 1992. NOW said that it has no intention to organize another March for Women’s Lives; the group has said it’s currently putting its resources toward the 2020 election. “We are encouraging our members to march to the polls in November!” the site’s FAQ page reads.
Pro-choice organizers say that since they can no longer depend on the court to stand by its past rulings, the fight to protect abortion rights must now be fought primarily through electoral politics.
The Feminist Majority Foundation, NARAL, and Emily's List are also focused on flipping seats in state legislatures, winning gubernatorial races, and regaining a majority in the U.S. Senate, where Democrats could pass federal legislation securing abortion rights in the absence of Roe with enough votes—and with a Democratic president who would sign it.
Indeed, many of the new protections for abortion rights have come about because of progressive gains at the state level, like in Maine, where Governor Janet Mills has expanded abortion access since defeating her Republican predecessor, Paul LePage, in November. Other states like New York, Nevada, Illinois, Vermont, and Rhode Island have also passed legislation to enshrine abortion rights in state law, and all in 2019 alone.
That wasn’t the case in 1992, and some say it puts the pro-choice movement in a better position to protect abortion rights in the absence of Roe than 27 years ago.
“Frankly, I was more worried in 1992 than I am now,” Smeal said. “But there is a real, clear and present threat. We should be signaling the alarm.”
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