The 40th anniversary of the landmark abortion decision, Roe v. Wade, arrived on a frigid Tuesday without the annual anti-abortion march to the steps of the U.S. Supreme Court.
That march, which generally draws thousands to the nation’s capital, will take place on January 25 and reflects the continuing controversy in the public, political and legal arenas surrounding the justices’ 1973 ruling.
This year, one lawyer marks his 30th anniversary on the abortion legal battlefields. Roger Evans, senior director of public policy litigation and law at Planned Parenthood Federation of America, is a familiar name and face to those who have followed abortion litigation in state and federal courts. His department also provides strategic legal advice on legislation in Congress and state legislatures; regulatory issues at the national, state and local levels; and other issues, such as judicial nominations.
Evans, a graduate of New York University School of Law, has been the lead or co-counsel in a number of Supreme Court cases, including Gonzales v. Planned Parenthood, a 2007 decision in which a 5-4 court rejected the organization’s challenge to the federal Partial-Birth Abortion Ban Act of 2003; Planned Parenthood of Southeastern Pennsylvania v. Casey, a 5-4, 1992 decision reaffirming Roe v. Wade; Rust v. Sullivan, a 5-4, 1991 decision in which Planned Parenthood and others unsuccessfully challenged a gag order on abortion counseling by recipients of Title X family planning funds; and Webster v. Reproductive Health Services, a 5-4, 1989 decision rejecting a challenge by Planned Parenthood and others to Missouri restrictions on women’s access to abortion.
Supreme Court Brief asked Evans for his thoughts on abortion litigation on Roe‘s 40th anniversary.
Supreme Court Brief: When you joined Planned Parenthood in 1983, Roe v. Wade was marking its 10th anniversary. What do you recall of the atmosphere and politics surrounding the abortion right at that time? Was it notably different than it is today?
Evans: I think the atmosphere and politics were pretty much the same then as now.
What is different is the courts and the direction in which the law is moving. In 1983, the jurisprudence applying Roe was strongly protective of the right of a woman to choose abortion prior to the point in time that the fetus was viable. Likewise, the jurisprudence strongly protected the doctor-patient relationship from intrusion by the state.
Since then, I think it clear that the courts have weakened the doctrinal protections of this right. Indeed, outside the political context, I think we can no longer refer just to Roe, but must refer to Roe/Casey, recognizing that Planned Parenthood v. Casey changed significantly the judicial analysis applicable to this area of the law. Roe/Casey is characterized by increasing deference to so-called state interests at the expense both of the woman’s individual liberty interests and of the sanctity of the doctor-patient relationship at least in the context of abortion care.
SCB: Recent news articles about Roe at 40 have presented two very different pictures of the status of the abortion right today. In one report, the picture is grim, noting that last year, states approved 92 abortion restrictions, more than three times the number in any year since 1985, according to the Guttmacher Institute. A different report was more upbeat, noting widespread protests against anti-abortion measures, a backlash against attacks on Planned Parenthood, and the election to Congress last year of 22 supporters of the abortion right. How do you see the status of the abortion right today?
Evans: In the context of the federal Constitution, I think the right is imperiled on two levels. First, as noted above, federal courts have grown increasingly deferential to the political branches, and are allowing increasing restrictions that both burden the right and allow increased state intrusion into the doctor-patient relationship. Second, while everyone who handicaps the Supreme Court has his or her own headcount of the number of votes on the court prepared to overrule Roe/Casey, I think this possibility, perhaps as close as just one vote away, is much closer than the vast majority of Americans understand.
The right of a woman to choose abortion has been part of the fabric of our society for two generations, and is both a freedom and a health care decision central to women’s lives and to the public health of our society. I believe much of what unfolded in the recent national elections reflects how unacceptable it would be to the majority of Americans if the right was withdrawn from the panoply of individual liberties protected by the U.S. Constitution.
SCB: What kinds of court cases is Planned Parenthood involved in today?
Evans: We are involved in several cases challenging various legislative and executive actions intended to disqualify Planned Parenthood affiliates from eligibility for participation in publicly funded health care programs. These initiatives are remarkably terrible public health policy. They would prevent access primarily for women seeking birth control services, cancer screening and sexually transmitted disease testing and treatment, and other forms of primary care services, solely because outside these programs and with nongovernmental funds (except to the extent permitted by these programs), Planned Parenthood provides abortion care and engages in public education and advocacy to protect the right to safe and legal abortion care.
We are involved in cases involving restrictions on abortion care, such as statutes that limit access to medical care, i.e., nonsurgical early abortion care, contrary to accepted medical practice across the country and around the world.
We are involved in cases involving intrusions on the free speech rights of physicians who provide safe and legal abortions and the right of a woman to make her decision within the privacy of her relationship with her physician and in consultation with whomever else she chooses. For example, we are challenging a South Dakota law that requires a woman before obtaining an abortion to be counseled at a program that is opposed to abortion.
SCB: How has the amount of litigation in which Planned Parenthood is involved changed in the last decade? More? Less?
Evans: Regrettably, the amount of litigation has remained steady and constant over my tenure with Planned Parenthood. We are daily involved in litigation such as the examples above, as well as situations involving unlawful and often threatening protests, land use restrictions suddenly enacted when plans for a Planned Parenthood health center are announced, and other issues at all levels of the state and federal courts across the country.
SCB: Is any part of the country, or a state, a major source of abortion restrictions?
Evans: There are some obvious states where we do not see constant efforts to interfere with access to abortion care, for example, New York, Massachusetts, California, Oregon and Washington, among others. Outside of the states in that category, we confront legislative, regulatory and then litigation challenges most everywhere at one time or another.
SCB: Are there any abortion-related cases moving close to the U.S. Supreme Court?
Evans: There are a variety of cases in the lower federal courts that could wind up in the Supreme Court. As of right now, none that [involve] direct restrictions on access to abortion has been decided by a circuit court.
There are also several cases involving the efforts to “defund” Planned Parenthood that are further along the judicial pipeline, but these do not involve restrictions on abortion. They involve efforts to penalize Planned Parenthood, because we both provide and advocate to protect safe and legal access to abortion care, by disqualifying our affiliates from providing an array of important publicly funded health services.
SCB: How have the courts reacted to those challenges to defunding efforts?
Evans: By and large, the courts have struck down these efforts to “defund” Planned Parenthood, holding either that the restrictions violate the statute authorizing the public health program in question, or that the disqualification is an unconstitutional condition of eligibility for participation in the program.
We recently lost one of these cases in the Fifth Circuit. We chose to pursue further litigation in the state courts and, while that litigation was pending, the program in question ceased all together.
SCB: What has surprised you the most in your 30 years in the legal trenches with Planned Parenthood?
Evans: Other than the fact that I am still here?
SCB: What is it about your own job that continues to keep you in this particular area of the law?
Evans: First, I do not think any attorney could ask for a greater privilege than to represent the professionals and the health centers of the Planned Parenthood Federation of America. They are providing crucial medical care to underserved communities across the country, as well as educational programs central to protecting the futures of our youth. At the same time, they are tireless advocates protecting a fundamental constitutional and, I would argue, human right. And they do all of this while, in many communities, under constant siege, working behind bullet- proof windows and elaborate security systems, confronting gauntlets of often abusive protestors not just outside their health centers but, as well, outside their homes, and finally, regrettably, sometimes subjected to serious threats of violence.
And the legal issues are endlessly interesting and challenging, too.
Marcia Coyle can be contacted at firstname.lastname@example.org.