As a Pennsylvanian, this particular page in anti-choice history stings more than most. In 1992, Planned Parenthood of Southeastern Pennsylvania v. Casey was the decision of the hour for the anti-choice camp. It declared the constitutionality of the majority of Pennsylvania’s Abortion Control Act.

Under the act, doctors were required to get informed consent, which involved giving women information on all health risks involved in having an abortion, regardless of how rare they were. A 24-hour waiting period was required, as was parental consent for minors and spousal consent for married women. Additionally, there were reporting procedures being imposed on physicians and clinics performing abortions. The Commonwealth of Pennsylvania maintained that the law was constitutional, and that Roe v. Wade was a flawed decision.

The Supreme Court ruling rejected the spousal consent portion of the law, and maintained Roe v. Wade, but also adopted an “undue burden” standard for laws concerning abortion, and moved away from the strict trimester standard of 28 weeks for viability to 22-23 weeks, presumably reflecting advancements in neonatology since Roe. As stated in the opinion, an undue burden is a legal restriction with “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

This undue burden prong of this decision remains at issue, particularly in light of laws restricting Wrongful Birth and Wrongful Life suits. These suits are brought against doctors in cases of birth defects that could have been predicted during pregnancy if the doctors had performed amniocenteses early on, but refused to do so out of fear that the mothers would abort. Parents of children with congenital anomalies make Wrongful Birth suits when physicians refuse screenings during pregnancy to prevent women from choosing abortion. Wrongful Life suits are brought on by an agent acting for the child, but are less successful. Under the Casey decision, laws preventing these legal actions should be considered an undue burden, but are not.

The hypocrisy of the situation is clear when one considers on one end, doctors must tell patients every possible problem they can have when they are definitely considering an abortion regardless, while on the other, doctors cannot be held liable for failing to be honest about potential problems. It is reprehensible on two levels, first in that doctors can refuse genetic testing and counseling, and second in that if a doctor chooses to refuse care, there is no legal remedy for the parents. When such laws are enacted, legislators may choose to veil the situation under tort reform, but more than likely, it is as it was in Pennsylvania.

During debates on the laws forbidding Wrongful Life and Birth suits, Pennsylvania legislators were not speaking about financial liabilities of physicians. As the legislative history shows, in testimony for the Pennsylvania House version of the bill, Representative Stephen Friend stated “until Roe… is reversed, those in the pro-life movement must be as aggressive and creative as possible in drafting and passing legislation which regulates and restricts abortion as much as possible.” A statement of that kind can only be considered as having the purpose and effect of limiting a woman’s access to abortion, but apparently the undue burden part of the Casey ruling was never intended to prevent anti-choice legislation.