Planned Parenthood v. Casey Reaffirmed Roe and Established Undue Burden Standard
In Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), the U.S. Supreme Court addressed the constitutionality of four Pennsylvania abortion laws, ultimately upholding all but one. In so ruling, the Court reaffirmed the constitutional right to have an abortion first established in Roe v. Wade. However, the Court also established a new standard of review under which the key question is 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.”
Facts of the Case
The case involved five challenged provisions of the Pennsylvania Abortion Control Act of 1982: § 3205, which requires that a woman seeking an abortion give her informed consent prior to the procedure, and specifies that she be provided with certain information at least 24 hours before the abortion is performed; § 3206, which mandates the informed consent of one parent for a minor to obtain an abortion, but provides a judicial bypass procedure; § 3209, which commands that, unless certain exceptions apply, a married woman seeking an abortion must sign a statement indicating that she has notified her husband; § 3203, which defines a “medical emergency” that will excuse compliance with the foregoing requirements; and §§ 3207(b), 3214(a), and 3214(f), which impose certain reporting requirements on facilities providing abortion services.
Before any of the provisions took effect, five abortion clinics and a physician representing himself and a class of doctors who provide abortion services filed suit, seeking a declaratory judgment that each of the provisions was unconstitutional on its face, as well as injunctive relief. The District Court held all the provisions unconstitutional, and permanently enjoined their enforcement. The Court of Appeals affirmed in part and reversed in part, striking down the husband notification provision but upholding the others.
A divided Court reversed in part and affirmed in part. In a rare move, Justices Sandra Day O’Connor, Anthony Kennedy, David Souter all co-authored the plurality opinion.
The Court upheld that central holding of Roe, which it described as having three parts: (1) Women have the right to choose to have an abortion prior to viability and to do so without undue interference from the State; (2) the State can restrict the abortion procedure post viability, so long as the law contains exceptions for pregnancies which endanger the woman’s life or health; and (3) the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. While the plurality acknowledged that Roe had been controversial, it found no reason to overturn it. As the justices explained:
The sum of the precedential enquiry to this point shows Roe’s underpinnings unweakened in any way affecting its central holding. While it has engendered disapproval, it has not been unworkable. An entire generation has come of age free to assume Roe’s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left Roe’s central holding a doctrinal remnant.
The plurality did make changes to the standard of review applied to state abortion laws. To start, it abandoned the trimester standard set forth in Roe in favor of one that was based on the viability of the fetus. It also reaffirmed the Court’s holding in Roe that subsequent to viability, the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
The Court also adopted an undue burden standard, declining to continue the strict scrutiny analysis set forth in Roe. “To protect the central right recognized by Roe while at the same time accommodating the State’s profound interest in potential life, the undue burden standard should be employed,” the plurality wrote. “An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.”
Applying this standard, the plurality struck down the spousal notice requirement, concluding that “a spousal notice requirement enables the husband to wield an effective veto over his wife’s decision.” The Court upheld the provisions requiring informed consent, a 24-hour waiting period, and, if minors, parental consent, finding that they did not pose an undue burden.
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Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.
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