Planned Parenthood v. Casey

Background

In Casey, the plaintiffs challenged five provisions of the Pennsylvania Abortion Control Act of 1982 authored by state Rep. Stephen F. Freind, arguing that the provisions were unconstitutional under Roe v. Wade. The Court in Roe was the first to establish abortion as a fundamental right protected by the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. The majority in Roe further held that women have a privacy interest protecting their right to abortion embedded in the Due Process Clause. The five provisions at issue in Casey are summarized below.

§ 3205's informed consent — a woman seeking abortion had to give her informed consent prior to the procedure. The doctor had to provide her with specific information at least 24 hours before the procedure was to take place, including information about how the abortion could be detrimental to her health and about the availability of information about the fetus.

§ 3209's spousal notice — a married woman seeking abortion had to sign a statement declaring that she had notified her husband prior to undergoing the procedure, unless certain exceptions applied.

§ 3206's parental consent — minors had to get the informed consent of at least one parent or guardian prior to the abortion procedure. Alternatively, minors could seek judicial bypass in lieu of consent.

§ 3203's medical emergency definition — defining a medical emergency as "[t]hat condition, which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function."

§§ 3207(b), 3214(a), and 3214(f)'s reporting requirements — certain reporting and record keeping mandates were imposed on facilities providing abortion services.

The case was a seminal one in the history of abortion decisions in the United States. It was the first case to provide an opportunity to overturn Roe since two liberal U.S. Associate Justices, William J. Brennan Jr. and Thurgood Marshall, had been replaced with the George H. W. Bush-appointed Justices David Souter and Clarence Thomas. Both were viewed, in comparison to their predecessors, as ostensible conservatives. This left the Court with eight Republican-appointed justices, five of whom had been appointed by Presidents Ronald Reagan or Bush, both of whom were well known for their opposition to Roe. Finally, the only remaining Democratic appointee was Justice Byron White, who had been one of the two dissenters from the original Roe decision and had stood by his dissent in his subsequent dissenting opinion in Thornburgh v. American College of Obstetricians & Gynecologists saying, "I continue to believe that this venture [the substantive due process right to abortion] has been fundamentally misguided since its inception". At this point, only two of the Justices were obvious supporters of Roe v. Wade: Harry Blackmun, the author of Roe, and John Paul Stevens, who had joined opinions specifically reaffirming Roe in City of Akron v. Akron Center for Reproductive Health and Thornburgh v. American College of Obstetricians & Gynecologists.

District Court's ruling

The plaintiffs were five abortion clinics, a class of physicians who provided abortion services, and 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 five 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.

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. The Third Circuit concluded that the husband notification was unduly burdensome because it potentially exposed married women to spousal abuse, violence, and economic duress at the hands of their husbands. Then-Circuit Judge Samuel Alito sat on that three-judge appellate panel and dissented from the court's invalidation of that requirement. Thirty-one years later, as a Supreme Court Justice, Alito wrote the opinion in Dobbs v. Jackson Women's Health Organization, which overturned Roe and Casey.

Supreme Court's consideration

At the conference of the Justices two days after oral argument, Souter defied expectations, joining Justices Stevens, Blackmun, and Sandra Day O'Connor, who had all dissented three years earlier in Webster v. Reproductive Health Services with regard to that plurality's suggested reconsideration and narrowing of Roe. This resulted 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 five contested abortion restrictions and overturning Roe; however, Kennedy changed his mind shortly thereafter, and joined with fellow Reagan-Bush justices O'Connor and Souter to write a plurality opinion that would reaffirm Roe.

Supreme Court's opinions

Except for the three opening sections of the O'Connor–Kennedy–Souter opinion, Casey was a divided judgment, as no other sections of any opinion were joined by a majority of justices. The plurality opinion jointly written by Justices O'Connor, Kennedy, and Souter was recognized as the principal opinion.

O'Connor, Kennedy, and Souter plurality opinion

In the 1992 case of Planned Parenthood v. Casey, the authors of the plurality opinion abandoned Roe's strict trimester framework but maintained its central holding that women have a right to have an abortion before viability. Roe had held that statutes regulating abortion must be subject to "strict scrutiny"—the traditional Supreme Court test for impositions upon fundamental Constitutional rights. Casey instead re-adopted the lower, undue burden standard for evaluating state abortion restrictions, but re-emphasized the right to abortion as grounded in the general sense of liberty and privacy protected under the constitution. The authors of the plurality opinion likewise noted the U.S. government's previous challenges to Roe v. Wade and expounded on the concept of "liberty."

The plurality opinion stated that it was upholding what it called the "essential holding" of Roe. The essential holding consisted of three parts: (1) Women had the right to have an abortion prior to viability and to do so without undue interference from the State; (2) the State could restrict the abortion procedure post-viability, so long as the law contained exceptions for pregnancies which endangered the woman's life or health; and (3) the State had 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. The plurality asserted that the fundamental right to abortion was grounded in the Due Process Clause of the Fourteenth Amendment, and the plurality reiterated what the Court said in Eisenstadt v. Baird: "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."

The plurality's opinion included a thorough discussion on the doctrine of stare decisis (respect of precedent), and provided a clear explanation for why the doctrine had to be applied in Casey with regards to Roe. The authors of the plurality opinion emphasized that stare decisis had to apply in Casey because the Roe rule had not been proven intolerable; the rule had become subject "to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation"; the law had not developed in such a way around the rule that left the rule "no more than a remnant of abandoned doctrine"; and the facts had not changed, nor viewed differently, to "rob the old rule of significant application or justification." The plurality acknowledged that it was important for the Court to stand by prior decisions, even those decisions some found unpopular, unless there was a change in the fundamental reasoning underpinning the previous decision. The authors of the plurality opinion, making a special note of the precedential value of Roe v. Wade, and specifically how women's lives were changed by that decision, stated,

Concurrence/dissents

Justices Harry Blackmun and John Paul Stevens, who both joined the plurality in part, also each filed opinions concurring in the Court's judgment in part and dissenting in part. Chief Justice William Rehnquist filed an opinion concurring in the Court's judgment in part and dissenting in part, which was joined by Justices Byron White, Antonin Scalia, and Clarence Thomas, none of whom joined any part of the plurality. Justice Scalia also filed an opinion concurring in the judgment in part and dissenting in part, which was also joined by Rehnquist, White, and Thomas.

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. In his opinion, Chief Justice Rehnquist questioned the fundamental right to an abortion, the "right to privacy", and the strict scrutiny application in Roe. He also questioned the new "undue burden" analysis under the plurality opinion, instead deciding that the proper analysis for the regulation of abortions was rational-basis.

In his opinion, Justice Scalia also argued for a rational-basis approach, finding that the Pennsylvania statute in its entirety was constitutional. He argued that abortion was not a "protected" liberty, and as such, the abortion liberty could be intruded upon by the State. To this end, Justice Scalia concluded this was so because an abortion right was not in the Constitution, and "longstanding traditions of American society" have allowed abortion to be legally proscribed. Rehnquist and Scalia joined each other's concurrence/dissents. White and Thomas, who did not write their own opinions, joined in both.

Justices 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 agree with the plurality's decision to uphold the other three laws at issue.

Justice Stevens concurred in part and dissented in part. Justice Stevens joined the plurality's preservation of Roe and rejection of the spousal notification law, but under his interpretation of the undue burden standard ("[a] burden may be 'undue' either because the burden is too severe or because it lacks a legitimate rational justification"), he would have found the information requirements in §§ 3205(a)(2)(i)–(iii) and § 3205(a)(1)(ii), and the 24-hour waiting period in §§ 3205(a)(1)–(2) unconstitutional. Instead of applying an undue burden analysis, Justice Stevens would have preferred to apply the analyses in Akron and Thornburgh, two cases that had applied a strict scrutiny analysis, to reach the same conclusions. Justice Stevens also placed great emphasis on the fact that women had a right to bodily integrity, and a constitutionally protected liberty interest to decide matters of the "highest privacy and the most personal nature." As such, Justice Stevens felt that a State should not be permitted to attempt to "persuade the woman to choose childbirth over abortion"; he felt this was too coercive and violated the woman's decisional autonomy.

Supreme Court's holdings overturned

In May 2022, Politico obtained a leaked initial draft majority opinion written by Justice Samuel Alito suggesting that the Supreme Court was poised to overturn Casey along with Roe in a pending final decision on Dobbs v. Jackson Women's Health Organization. On June 24, 2022, the final opinion was issued, with the Court overturning the "essential opinion" in Roe, criticizing the Casey Court's failure to address the deficiencies of the Roe decision and overturning the "key judgment" in Casey.

The dissenting opinion disputed the majority's opinion that the "undue burden" standard was not workable, and criticized the majority for overturning precedent, holding that their reasoning was not sufficient to overrule Roe and Casey, which they described as a precedent about precedent, and warned that by the same reasoning many other rights would be under threat.