Planned Parenthood v. Casey

Planned Parenthood v. Casey, 505 U.S. 833 (1992) was a case decided by the Supreme Court of the United States in which the constitutionality of several Pennsylvania state regulations regarding abortion was challenged. The Court's lead plurality opinion upheld the right to have an abortion but lowered the standard for analyzing restrictions of that right, invalidating one regulation but upholding the others.

Background of the case

Four provisions of the Pennsylvania Abortion Control Act of 1982 were being challenged as unconstitutional under Roe v. Wade, which first recognized a constitutional right to have an abortion in the liberty protected by the Due Process Clause of the Fourteenth Amendment. The "informed consent" rule under the Act required doctors to provide women with information about the health risks and possible complications of having an abortion before one could be performed. The "spousal notification" rule required women to give prior notice to their husbands, and the "parental consent" rule required minors to receive consent from a parent or guardian prior to an abortion. The fourth provision imposed a 24-hour waiting period before obtaining an abortion. When the case came before the Court on review, Pennsylvania defended the Act in part by urging the Court to overturn Roe as having been wrongly decided.

The case was a seminal one in the history of abortion rights in the United States, as it was the first direct challenge of Roe since the liberal Justice Brennan was replaced in 1990 with the Bush-appointed (and ostensibly conservative) Justice Souter. Furthermore, Justice Thurgood Marshall had recently been replaced on the Court with the appointment of Clarence Thomas, leaving the Court with eight Republican-appointed justices - five of whom had been appointed by Presidents Reagan and Bush, declared abortion opponents. Finally, the only remaining Democratic appointee - Justice Byron White - had been one of the two dissenters from the original Roe decision.

At this point, only two of the Justices were obvious supporters of Roe v. Wade: Blackmun, the author of Roe, and Stevens, who had joined several opinions interpreting Roe broadly. Given these circumstances, even most pro-choice advocates expected Roe to be overruled and were gearing up for a subsequent state-by-state campaign against the passage of particular anti-abortion laws.

The case was argued by ACLU attorney Kathryn Kolbert for Planned Parenthood. Pennsylvania attorney general Ernest Preate, Jr. argued the case for the State. In the Supreme Court oral arguments, Solicitor General Kenneth Starr spoke for the Bush Administration.

The District Court's ruling

The plaintiffs were five abortion clinics and a class action of physicians who provide abortion services, in addition to one physician representing himself independently. They filed suit in the U.S. District Court for the Eastern District of Pennsylvania to enjoin the state from enforcing the four provisions and have them declared facially unconstitutional. The District Court, after a three-day bench trial, held that all the provisions were unconstitutional and entered a permanent injunction against Pennsylvania's enforcement of them.

The Third Circuit Court of Appeals decision

The Court of Appeals for the Third Circuit affirmed in part and reversed in part, upholding all of the regulations except for the husband notification requirement. Then-Circuit Judge Samuel Alito sat on that three-judge appellate panel and dissented from the court's invalidation of that requirement.

The Supreme Court's consideration

Early in considering the case, Justice Souter defied all expectations and voted to uphold Roe v. Wade, resulting in a precarious five Justice majority consisting of Chief Justice William Rehnquist, Byron White, Antonin Scalia, Anthony Kennedy, and Clarence Thomas that favored upholding all the abortion restrictions and overturning Roe. However, Kennedy changed his vote at the last minute and joined with fellow Reagan-Bush justices Sandra Day O'Connor and David Souter to form a plurality that would uphold Roe.

The Court's opinions

Casey is a divided judgment, in that none of the Justices' opinions was joined by a majority of justices. However, the plurality decision jointly written by Justices Souter, O'Connor, and Kennedy is recognized as the lead opinion with precedential weight because each of its parts were concurred in by at least two other Justices, albeit different ones for each part.

The O'Connor, Kennedy and Souter plurality opinion

Though the plurality opinion stated that it was upholding what it called the "essential holding" of Roe, it did not leave it intact. The plurality emphasized the right to abortion as "grounded in the general sense of liberty" under the Fourteenth Amendment, rather than recognizing a general right to privacy that had been implied in previous cases.

However, the plurality overturned the strict trimester formula used in Roe to weigh the woman's interest in obtaining an abortion against the State's interest in the life of the fetus. Continuing advancements in medical technology meant that at the time Casey was decided, a fetus might be considered viable at 22 or 23 weeks rather than at the 28 weeks that was more common at the time of Roe. The plurality recognized viability as the point at which the state interest in the life of the fetus outweighs the rights of the woman and abortion may be banned entirely.

The plurality also replaced the heightened scrutiny of abortion regulations under Roe, which was standard for fundamental rights in the Court's case law, with a lesser "undue burden" standard previously unknown in the Court's case law. A legal restriction posing an undue burden was defined as one having "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."

Applying this new standard to the Pennsylvania Act under challenge, the plurality struck the spousal notification requirement, stating that it gave too much power to husbands over their wives and would worsen situations of spousal abuse. The plurality upheld the State's 24 hour waiting period, informed consent, and parental notification requirements, holding that none constituted an undue burden.

The plurality's opinion also included some controversial language about the doctrine of stare decisis. The plurality emphasized the need to stand by prior decisions even if they were unpopular, unless there had been a change in the fundamental reasoning underpinning the previous decision. It also acknowledged the need for predictability and constancy in judicial decision making. For example,

"Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution."

The plurality went on to give society's rejection of the "Separate but Equal" concept as a legitimate reason for the Brown v. Board of Education court’s rejection of the Plessy v. Ferguson doctrine. Emphasizing the need to not be seen as overruling a prior decision merely because the individual members of the Court had changed, O’Connor states,

"Because neither the factual underpinnings of Roe's central holding nor our understanding of it has changed (and because no other indication of weakened precedent has been shown), the Court could not pretend to be reexamining the prior law with any justification beyond a present doctrinal disposition to come out differently from the Court of 1973.”

Since the plurality overruled some portions of Roe v. Wade despite its emphasis on stare decisis, Chief Justice Rehnquist in dissent argued that this section was entirely obiter dicta.

The concurrence/dissents

William Rehnquist, Byron White, Harry Blackmun, John Paul Stevens, Antonin Scalia, and Clarence Thomas - the six Justices who did not join the plurality opinion - wrote or joined opinions in which they partially concurred and partially dissented from the decision.

Rehnquist and Scalia each joined the plurality in upholding the parental consent, informed consent, and waiting period laws. However, they dissented from the plurality's decision to uphold Roe v. Wade and strike down the spousal notification law, contending that Roe was incorrectly decided. Rehnquist and Scalia joined each other's concurrence/dissents, and White and Thomas, who did not write their own opinions, joined in both.

Blackmun and Stevens wrote opinions in which they approved of the plurality's preservation of Roe and rejection of the spousal notification law. They did not, however, agree with the plurality's decision to the other three laws at issue. Blackmun went further, sharply attacking and criticizing the anti-Roe bloc of the Court. Neither Blackmun nor Stevens joined each other's opinions.

External links

FindLaw: PLANNED PARENTHOOD OF SOUTHEASTERN PA. v. CASEY, 505 U.S. 833 (1992)
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) (full text with links to cited material)