By Michael Arnheim

This case has become the litmus test for confirmation to the U.S. Supreme Court bench. No judge who comes out openly against Roe is likely to be confirmed. In Roe the Supreme Court ruled 7–2 that women have the right to an abortion, at least during the first trimester of pregnancy. The Court characterized abortion as a “fundamental” constitutional right, which means that any law aiming to restrict it is subject to the standard of strict scrutiny. In Planned Parenthood v. Casey (1982), the high court modified Roe by giving the state the right to regulate an abortion even in the first trimester as long as that regulation doesn’t pose an “undue burden” on the woman’s fundamental right to an abortion. One such “undue burden” identified in Casey was any requirement for the woman to notify her husband. A Texas law that placed certain restrictions on abortion clinics in the state was struck down by the Supreme Court 5–3 as placing an “undue burden” on abortion rights in Whole Woman’s Health v. Hellerstedt (2016). In Stormans Inc v. Wiesman (2016), a 5-justice majority on the Court refused to hear a challenge to a Washington state law making it illegal for pharmacists to refuse to dispense contraceptive drugs. In a dissent, Justice Alito, joined by Chief Justice Roberts and Justice Thomas, wrote: “This case is an ominous sign … If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern.”

Roe v. Wade is as controversial as it is important.