1. Planned Parenthood of S.W. Penn. v. Casey, (1992)
2. Facts: A Penn. statute had five questioned requirements regarding an abortion: 1) informed consent of the woman, 2) 24 hour waiting period after receiving information, 3) informed consent of one parent for minors, 4) notification of the husband, and 5) reporting requirements for abortion facilities.
3. Procedural Posture: An action for declaratory and injunctive relief prior to the statute taking effect. The District Court held all provisions as unconstitutional on their face, and entered a permanent injunction. The Court of Appeals affirmed in part and reversed in part, upholding all of the regulations except for the husband notification requirement.
4. Issue: What is the appropriate standard to use in determining whether a statute regulating abortion is unconstitutional.
5. Holding: “Unduly burdensome.” “An undue burden exists, and therefore a provision of the law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”
6. Majority Reasoning: [O’Connor] First, the essential holding in Roe is reaffirmed. The essential holding is 1) a woman has a constitutional right to choose to have an abortion before viability without undue interference from the state, 2) the state has a power to restrict abortions after viability, and 3) the state has legitimate interests in both the health of the mother and the life of the fetus from conception. The constitutional protection comes from the “liberty” of the due process clause of the 14th amendment, which is a source of substantive rights beyond the Bill of Rights. It is not time to overrule Roe. Stare Decisis requires reaffirmation. Roe is not “unworkable”, society relies on it, it is not outdated, it is not entirely based on improper factual assumptions, and to overrule it would undermine the principled legitimacy of the Court in the eyes of the people. However, the trimester framework adopted by Roe is rejected as being unnecessary to adequately protect the woman’s right to choose. It misconceives the nature of the woman’s interest, and it undervalues the State’s interest in potential life. Only where state regulation imposes an “undue burden” on a woman’s ability to choose before viability is the statute unconsitutional. The informed consent requirement is constitutional (partially overruling Akron I, and Thornburgh), because it furthers the states legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating consequences, that her decision was not fully informed. The doctor should be required to provide information as in other medical procedures. The 24 hour waiting period, although burdensome, is not an undue burden. Informed consent of minor’s parents is not an undue burden because the minors will benefit from the consultation with their parents. However, the spousal notification is an undue burden because a significant number of women will be deterred from abortion for fear of their safety as surely as if the state had prohibited it altogether. The reporting requirement, although not related to the state’s interest in informed consent, does relate to health and is a vital element of medical research and health regulation.
7. Concurrence/Dissent Reasoning: [Stevens] felt that serious question arose with respect to the state’s attempt to pursuade the woman to choose childbirth over abortion. The provision of pro-life information at the critical point of decision is an unconsitutional invasion of the woman’s right to choose. Also, the 24 hour waiting period, in practice, serves to wear down a woman’s ability to get an abortion, without a showing that it is necessary or helpful. The waiting period appears to rest on the assumption that a woman is incapable of making a rational decision in less than 24 hours.
8. Concurrence/Dissent Reasoning: [Blackmun] still fully supported all of the implications of Roe. He was concerned that there was only 1 vote necessary to overrule Roe, and that he wsa getting old and stepping down soon. The Roe framework is more administrable and far less manipulable thatn the “undue burden” standard. The strictest of scrutiny should be applied to this case, and under that view, each of the provisions should be struck down. Also, the fundamental rights protected by Roe are too precious to be left to an election.
9. Concurrence/Dissent Reasoning: [Rehnquist] believed that Roe was incorrectly decided, and should be overruled. Overruling Roe would be entirely consistent with stare decisis because it misinterpreted the cases it purported to be based on. The majority’s arguments on stare decisis are conculsory and unconvincing. The majority’s new “undue burden” standard is a new standard which represents an unjustified compromise. The correct standard here should be whether the statute rationally furthers any legitimate state interest. In each provision, it does and so should be entirely upheld.
10. Concurrence/Dissent Reasoning: [Scalia] felt that the right of a woman to choose an abortion finds no protection by the constitution. The matter is one for the people and the legislature to decide. The proper issue is not whether the power of a woman to abort her unborn child is a “liberty” in the absolute sense, it is whether it is a liberty protected by the constitution. It is not. The constitution says absolutely nothing about it and the longstanding traditions of American society have permitted it to be legally proscribed. Roe was “plainly wrong.” The courts should “get out of this area, where we have no right to be.”
