28 Aug Bioethics
Planned Parenthood of Southeastern Pennsylvania 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 Eanest 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 5-4 Court vote in favor of overturning Roe, with the majority consisting of Chief Justice William Rehnquist, Byron White, Antonin Scalia, Anthony Kennedy, and Clarence Thomas. At conference on Casey, Justice Anthony Kennedy originally voted with Thomas, Scalia, White and Rehnquist to uphold all of the Pennsylvania abortion regulations and overturn 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.”
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