Planned Parenthood of Southeastern Pennsylvania v. Casey

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), argued 22 Apr. 1992, decided 29 June 1992 by vote of 5 to 4; O'Connor, Kennedy, and Souter for the Court, with Blackmun and Kennedy joining in parts; Rehnquist, Scalia, White, and Thomas concurring and dissenting in different parts.

Few issues have roiled American society and the Supreme Court as fully as abortion. In the landmark case of Roe v. Wade (1973), the justices had established a fundamental constitutional right to abortion and in so doing sparked a continuing controversy not just over the appropriateness of this technique for ending pregnancy but over the role of the Court in deciding the issue. Thereafter, the Court had rendered a number of decisions that suggested that its increasingly conservative ranks would eviscerate the precedent. Such turned out not to be true in Casey, although the justices divided sharply.

Casey involved a Pennsylvania law that required women to wait at least twenty‐four hours for an abortion after a doctor provided them with specific information about the nature of the procedure, the state of development of the fetus, and the possibilities of using alternatives to abortion. The law also required that minors have the consent of one parent, who was also subject to the informed consent requirements. Married women were required to notify their husbands that they planned to have an abortion, and if they failed to do so, they were subject to up to a year in jail.

Like measures in other states, the Pennsylvania Abortion Control Act aimed to eliminate abortion by imposing time‐consuming and potentially embarrassing regulations that would force women to take their pregnancies to term. The chief problem for opponents of abortion was that the Supreme Court, while accepting that the states could impose regulations, had decided in Webster v. Reproductive Health Service (1989) that such regulations could not create “undue burdens.” The Webster holding had signaled that the Court was willing to change the standard of constitutional review, moving from the much more demanding requirement that the legislature establish a “compelling state interest” to the less stringent requirement that any regulation not place an “undue burden” on the person seeking the abortion.

Planned Parenthood of Southeastern Pennsylvania brought suit against the law, but the United States Court of Appeals for the Third Circuit, in Philadelphia, upheld all the provisions save that involving the requirement for married women to notify their husbands. The judges found that this provision did create the kind of undue burden proscribed by Webster.

The Supreme Court's decision mirrored the divisions in American society. First President Ronald Reagan and then President George H. W. Bush had urged the Court to overturn Roe, and in making appointments to the federal courts, they generally insisted on judges that would do just that. In some respects, however, the politicization of the abortion issue may have actually worked against the Court striking boldly at Roe.

In an unusual step, three of the justices (Sandra Day O'Connor, Anthony M. Kennedy, and David H. Souter) jointly wrote the opinion for the Court. They were joined in part by Justices Harry A. Blackmun, the author of the Roe opinion, and John Paul Stevens. The majority held that the decision in Roe had established a rule of law and a component of liberty that the Court would not renounce. The justices made clear that any effort to overturn Roe would divide the nation, pose profound questions about the Court's legitimacy, and make it appear that the justices were capitulating to political pressures.

The justices invoked the “undue burden” test of Webster to sustain most of the Pennsylvania law, but they refused to take the additional step of striking down Roe. The only portion of the Pennsylvania law that they declared unconstitutional was the requirement that a married woman tell her husband of her intent to have an abortion. Justices Blackmun and Stevens argued in dissent that the other four provisions should be struck down as well. At the same time, Chief Justice William H. Rehnquist and Justices Antonin Scalia, Byron R. White, and Clarence Thomas insisted that the Court should overturn Roe. The exchange among the justices was among the most intense in the history of the Court.

The case also underscored the important role that Justices O'Connor and Kennedy played in protecting the Court's ideological center. President Ronald Reagan had appointed both of them to the bench, doing so with the hope that on the critical abortion issue they would vote to end the Roe precedent. During their initial years on the bench, both justices had given evidence that they would do just that, yet by the time of Casey both had moved to a position that permitted state regulation but also perpetuated abortion as a fundamental right. In the end, O'Connor and Kennedy were more concerned with the institutional danger that the case presented to the Court than with settling the abortion issue by outlawing it. The Court's actions in Casey were, quite apart from the underlying constitutional issues, a vivid demonstration that the justices know that for their actions to be accepted in a democracy, those actions have to be seen as being different from politics and the justices themselves as different from politicians.

Kermit L. Hall