ASRM Today: Pivotal Court Decisions and Reproductive Rights and Reproductive Justice

In this episode we continue our season-long discussion on reproductive justice and reproductive rights, this week exploring how landmark Supreme Court cases have shaped access, autonomy and equality across generations. Joining me today is Dena Levy, who walks us through the pivotal court decisions - Roe v. Wade, Planned Parenthood v. Casey and Dobbs v. Jackson Women's Health Organization. Together, we examine how these rulings have influenced healthcare, privacy and democracy in America, and what the post-Dobbs world means for the future of reproductive care.

Welcome to ASRM Today, a podcast that takes a deeper dive into the current topics in reproductive medicine. I'm Jeffrey Hayes, and today on the show, we continue our season-long focus on reproductive justice and reproductive rights. Today, turning our eye towards the legal aspects of things, to help us understand the complex legal and social landscape, I spoke with Dena Levy, who walks us through some pivotal court decisions.

Can you start at a beginning point for our listeners as far as these court decisions? Let's walk through three of the pivotal Supreme Court cases, Roe v. Wade in 1973, Planned Parenthood v. Casey in 1992, and Dobbs v. Jackson's Women's Health Organization in 2022. Now, these cases deal primarily with abortion, but have far-reaching impact on reproductive care as a whole. These three cases not only redefined abortion law, but it also influenced the debates about privacy and liberty, equality, and I would say the roles of the courts in American democracy.

Right. And then before 1960, abortions were illegal in most states, and women risked their health, their freedom, and sometimes their lives to access this care, even in cases of rape or serious threat to a woman's health. This started to shift after medication tragedies and a rubella epidemic that left children with disability.

Because there were several crises related to a medication tragedy where there was a drug that would cause severe birth defects. There was a rubella epidemic that left many infants with disabilities. So a spotlight was then shined on abortion, and families and doctors and the public began questioning whether abortion should remain so restricted.

Together with that, there were a series of Supreme Court decisions recognizing personal rights tied to privacy and liberty, such as Griswold v. Connecticut in 1965, and that struck down bans on contraception for married couples. Now, fast forward to 1973, and we have the Supreme Court case Roe v. Wade. So in 1969, the plaintiff, who went by the name of Jane Roe, which was a pseudonym, she was pregnant with her third child.

She challenged the Texas laws that banned abortion, which were in place except to save a mother's life. And the case went all the way to the Supreme Court. And the court ruled by seven to two in Roe's favor.

Justice Blackmun wrote for the majority, and he said that the Constitution did protect a woman's decision to terminate a pregnancy under the Due Process Clause of the 14th Amendment that guaranteed liberty and privacy. Those together do create this right. So the court rejected Texas's claim that a person, a fetus was a person under the 14th Amendment.

And Blackmun went on to say that the word person, as used in the 14th Amendment, does not include the unborn, and personhood could not be granted to a fetus until viability. So then to balance state interests and individual rights, abortion decisions were left to women and their doctors in the first trimester, and to the states in the second trimester, unless necessary for the health of the mother. This ruling was controversial and sparked huge political and moral debate.

But Roe did stand as precedent for nearly 50 years. In 1992, though, there was a second landmark case, Planned Parenthood v. Casey, that restricted informed consent, imposed a 24-hour waiting period, imposed parental consent for minors, and there was a spousal notification for married women. And Planned Parenthood challenged these rules, and many thought the court might overturn Roe entirely.

But in 1992, the court surprised everybody. The court did reaffirm Roe's core holding that a woman could have an abortion before viability. But the court took that Roe trimester framework and created a new test that was called the Undue Burden Standard.

So how that worked is that states could regulate abortion throughout pregnancy, but they could not impose regulations that placed a substantial obstacle in the path of a woman seeking an abortion before viability. This resulted in some of the state's rules being upheld, but others struck down, such as the spousal notification rule. So under this test, most of Pennsylvania's rules, like informed consent and the waiting period, those were upheld.

But the spousal notification rule, that was struck down as being too burdensome. And this court, the Casey court, emphasized the principle called stare decisis, which is called respect for precedent. And the justices in that case noted that Americans had come to rely on abortion rights in planning their lives and their families, and abortion was tied to women's equality and the ability to control one's reproductive life, and that was essential to full participation in society.

But Casey still gave states greater leeway to regulate abortion, and that set the stage for decades of restrictions and further lawsuits. So then the third court case was in 2022, Dobbs v. Jackson's Women's Health Organization. Mississippi had passed a law banning most abortions after 15 weeks of pregnancy, and that directly challenged Roe and Casey and that viability rule.

This ruling not only upheld Mississippi's law, it completely overturned Roe v. Casey. The opinion said that Roe was egregiously wrong from the start. Abortion rights were not deeply rooted in the nation's history and traditions, therefore not protected by the Constitution.

It also asserted that the right to privacy was not specifically guaranteed in the Constitution. And Dobbs is a historic case for many reasons, but one of them that comes to mind is this is the first time the Supreme Court actually took away a fundamental constitutional right that had been recognized for nearly a century. And more interestingly, what I find is if we go back to Roe, in Roe, Justice William Rehnquist and Wright were the only ones that dissented.

But Justice Rehnquist, in his dissent, foreshadowed the Dobbs decision of 2022, because he said that the only recognizable rights are those listed in the Constitution. And if it's not listed in the Constitution, it's not a right that exists. So this foreshadowed what came to be in 2022.

What does that leave us today? Well, we now have a fractured landscape. We are left with a patchwork of state laws. Every state is doing their own thing.

And as of now, 2025, we have many states that have enacted total abortion bans, partial abortion bans, bans as early as six weeks. And now we have other states, about 25 of them, that have expanded or codified their abortion protections. Dobbs has also intensified inequality.

So states that have had bans already, they already had higher maternal and infant mortality, and this just exacerbated that situation. Well, the impact of these abortion cases is also impacting on other areas of reproductive care. The Center for Reproductive Medicine versus LePage, called the LePage case, where the Alabama Supreme Court ruled that frozen embryos are considered unborn children under the state's wrongful death of a minor act.

And they established that they have the same protections as children. So this threatened IVF access. And what that decision meant was that fertility providers could feasibly face prosecution if they destroyed embryos.

So rather than take on the risk, some fertility clinics stopped their IVF services. Is this still the case? But after public outcry and a bipartisan pushback, Alabama lawmakers quickly passed protections for IVF providers and the services resumed. But I want to be clear, make no mistake about it, IVF is still under attack.

If we switch gears to the political aspects, politically, Dobbs has energized both sides. You had voters in Kansas and Michigan and other states that passed ballot initiatives protecting abortion rights, while on the other hand, you have other voters who are energized in states that are trying to pass personhood laws. So where we are right now in 2025 is the story is still unfolding.

And today, abortion access really depends largely on where you live. And it is as fierce a debate as ever, which is touching on things such as liberty, equality, healthcare, and I would even say democracy itself. And as my work as a reproductive lawyer, when drafting surrogacy contracts, it really needs to factor in where the surrogate lives, where the intended parents live, as to where an abortion, while rare, if necessary, would be an option.

That was my conversation with Dena Levy about the evolving story of reproductive rights in the United States from the legal aspect. If you want to subscribe to the show, please do, you can punch that button. If you have questions about the show, you can email us, education at ASRM.org. And until next time, I'm Jeffrey Hayes, and this is ASRM Today.

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