On June 29, 1992, as Justice Sandra Day O’Connor began reading the decision for Planned Parenthood v. Casey, 25-year old Andrea Miller sat in the audience stunned. She’d braced herself for the likelihood that the Supreme Court might overturn Roe v. Wade. Court watchers had speculated that O’Connor would cast the decisive vote to uphold the statutory provisions regulating abortion as laid out in the Pennsylvania Abortion Control Act, which included parental consent for minors, spousal consent for married women, and 24-hour waiting periods.
Miller had started as an assistant at the American Civil Liberties Union in New York City; she had requested to work under Kathryn Kolbert, co-counsel for the Reproductive Freedom Project from the Philadelphia office. Born to a college-aged mother six years before Roe, Miller says she grew up keenly aware of her mother’s financial hardships and thwarted dreams. In the fall of 1991, Miller helped the attorneys as they wrote Planned Parenthood of Southeastern Pennsylvania’s brief in Casey, which boiled down to one simple question: Is Roe v. Wade still the law of the land?
“We conclude that the central holding of Roe should be reaffirmed,” O’Connor read that June morning in 1992. Miller, by then the head of communications for the newly formed Center for Reproductive Law and Policy, was awed. Here was the first woman ever to sit on the Supreme Court asserting women’s right to abortion. “Oh my God, did we just win?” Miller remembers thinking. “How it that possible?”
But O’Connor kept reading. In “reaffirming” Roe, the court had also mostly upheld four of the five restrictions put in place by the Abortion Control Act, only invalidating the spousal notification law. Abortion remained legal, but the judges introduced two caveats. One was that the states had a compelling interest in protecting unborn life from the “outset of pregnancy”—a stark departure from Roe, which held that states had no such interest until after the first trimester. The other was that states would be able regulate abortion unless their laws “unduly burden” a woman’s right to choose abortion.
Miller, who is now the president of the National Institute for Reproductive Health, remembers her mind spinning. What was an “undue burden”? How could the Pennsylvania restrictions stand if Roe stood too? In the Supreme Court’s crowded vestibule, Miller huddled with other advocates from pro-choice organizations, scrambling to understand: Should the decision be framed as a win or a loss? Guards waved them toward the exits. Outside, reporters filled the stone steps, awaiting a reaction. For months the clinics’ attorneys had been insistent that the American public needed to understand exactly what was at stake. It was an election year; they wanted to rouse the mainstream pro-choice public out of complacency. In their courtroom arguments, they’d aimed simple language at the media and voters: Keep Roe on the books. But now they had a murky legal decision that upheld Roe in name but not in content.