Planned Parenthood of Southeastern Pennsylvania v. Casey

Brief Fact Summary.

A few abortion clinics and physicians brought suit challenging the statutory restrictions placed on obtaining abortions in Pennsylvania.

Synopsis of Rule of Law.

A person retains the right to have an abortion, established by Roe v. Wade, but the state’s compelling interest in protecting the life of an unborn child means that it can ban an abortion of a viable fetus under any circumstances except when the health of the mother is at risk. Also, laws restricting abortion should be evaluated under an undue burden standard rather than a strict scrutiny analysis.

Facts.

The Pennsylvania legislature amended its abortion control law in 1988 and 1989. Among the new provisions, the law required informed consent and a 24-hour waiting period prior to the procedure. A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure). A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus.

Issue.

Can a state restrict a woman’s right to abortion without violating their right to abortion as guaranteed by Roe v. Wade?

Held.

Yes, a state may restrict a woman’s right to abortion, so long as that restriction is not an undue burden.

Dissent.

Justice Stevens

Provisions of the Act requiring a physician to provide materials to persuade a woman not to have an abortion are unconstitutional. The State may not inject such information into a woman’s deliberations just as she is weighing this important decision. Doing so amounts to an undue burden on a woman’s right to obtain an abortion before her fetus reaches the stage of viability.

Justice Blackmun

The Pennsylvania statute’s provisions requiring content-based counseling, a 24-hour delay, informed parental consent, and reporting of abortion-related information must be invalidated. Because motherhood has a dramatic impact on a woman’s educational prospects and employment opportunities, restrictive abortion laws deprive her of basic control over her life.

Justice Rehnquist

The challenged provisions of the Pennsylvania statute should have been upheld in their entirety. Abortion involves the purposeful termination of potential life and the abortion decision must therefore be recognized as different in kind from other rights the Court has protected under the rubric of privacy and autonomy. A woman is not isolated in her pregnancy, and the decision to abort necessarily involves the destruction of a fetus. Moreover, historical traditions do not support the holding that the right to an abortion is fundamental.

Justice Scalia

A woman’s right to have an abortion is not a liberty protected by the United States Constitution. This conclusion is reached because (1) the Constitution says nothing about it, and (2) the traditions of American history have allowed it to be legally proscribed. Justice Scalia would uphold the Pennsylvania statute on the basis of the rational basis test.

Concurrence.

Justice Stevens

Provisions of the Act requiring a physician to provide materials to persuade a woman not to have an abortion are unconstitutional. The State may not inject such information into a woman’s deliberations just as she is weighing this important decision. Doing so amounts to an undue burden on a woman’s right to obtain an abortion before her fetus reaches the stage of viability.

Justice Blackmun

The Pennsylvania statute’s provisions requiring content-based counseling, a 24-hour delay, informed parental consent, and reporting of abortion-related information must be invalidated. Because motherhood has a dramatic impact on a woman’s educational prospects and employment opportunities, restrictive abortion laws deprive her of basic control over her life.

Justice Rehnquist

The challenged provisions of the Pennsylvania statute should have been upheld in their entirety. Abortion involves the purposeful termination of potential life and the abortion decision must therefore be recognized as different in kind from other rights the Court has protected under the rubric of privacy and autonomy. A woman is not isolated in her pregnancy, and the decision to abort necessarily involves the destruction of a fetus. Moreover, historical traditions do not support the holding that the right to an abortion is fundamental.

Justice Scalia

A woman’s right to have an abortion is not a liberty protected by the United States Constitution. This conclusion is reached because (1) the Constitution says nothing about it, and (2) the traditions of American history have allowed it to be legally proscribed. Justice Scalia would uphold the Pennsylvania statute on the basis of the rational basis test.

Discussion.

The plurality reaffirmed Roe, but it reshaped Roe’s guidelines and upheld most of the Pennsylvania provisions. The new standard to determine the validity of laws restricting abortions asks whether a state abortion regulation has the purpose or effect of imposing an “undue burden,” which is defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Under this standard, the only provision to fail the undue-burden test was the husband notification requirement because it was found likely to prevent a significant number of women from obtaining an abortion, given that many women are in abusive relationships and fear their safety. In contrast, the provision requiring that a minor receive parental consent before obtaining and abortion was not deemed an undue burden, so long as there is an adequate judicial bypass procedure, which there was in this case. Similarly, a 24-hour waiting period, although burdensome on those women with limited financial resources and those who must travel long distances, was not deemed to be an undue burden.