Planned Parenthood of Southeastern Pennsylvania v. Casey 1992

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Planned Parenthood of Southeastern Pennsylvania v. Casey 1992

Petitioner: Planned Parenthood of Southeastern Pennsylvania

Respondent: Robert P. Casey, Governor of Pennsylvania, and others

Petitioner's Claim: That restrictions on abortion in a Pennsylvania abortion law violated the Due Process Clause.

Chief Lawyer for Petitioner: Kathryn Kolbert

Chief Lawyer for Respondent: Ernest D. Preate, Jr., Attorney General of Pennsylvania

Justices for the Court: Harry A. Blackmun, Anthony M. Kennedy, Sandra Day O'Connor, David H. Souter, John Paul Stevens

Justices Dissenting: Chief Justice William H. Rehnquist, Antonin Scalia, Clarence Thomas, Byron R. White

Date of Decision: June 29, 1992

Decision: While reaffirming the earlier Roe v. Wade decision, the Court also declared Pennsylvania's Abortion Control Act law largely constitutional with some exceptions.

Significance: The decision resolved a national dispute over abortion by upholding the essentials of Roe v. Wade while permitting Pennsylvania to regulate abortions so long as the state did not place an undue burden on women.

Through the 1980s the U.S. Supreme Court, took on a decidedly more conservative viewpoint toward the abortion issue than the 1970s court that had decided Roe v. Wade legalizing abortion. President Ronald Reagan had appointed justices Sandra Day O'Connor, Antonin Scalia, and Anthony Kennedy to the Court and promoted William Rehnquist to Chief Justice. The changed Court was willing to allow states more authority to regulate abortion. In 1988 Justice Harry A. Blackmun, the author of the Roe v. Wade decision, shocked a University of Arkansas audience by bluntly asking, "Will Roe v. Wade go down the drain?" He answered his own question with a prediction. "There's a very distinct possibility that it will. . . You can count votes [of the current justices]."

An "Undue Burden"

In 1989, anticipated by Blackmun's words, the Supreme Court in Webster v. Reproductive Health Services came within one vote of overturning Roe v. Wade. In Webster the Court upheld Missouri's right to prohibit using public facilities for abortions, and to require doctors to test for fetal viability (if the unborn child had a possibility of living outside the womb). More importantly four justices, Rehnquist, Kennedy, Scalia, and Byron R. White, voted to completely overturn Roe v. Wade. O'Connor was most likely to be the fifth and deciding vote to overturn Roe. Yet, she cast her vote to uphold Roe suggesting another case would likely come along to more appropriately test Roe. However, O'Connor did present a new idea or standard, called "undue burden." She found that Missouri's law was not an "undue burden" (did not create major obstacles) on the right to choose an abortion and was, therefore, constitutionally acceptable.

Testing the Limits

With this new "undue burden" standard left largely undefined and with Roe v. Wade having come close to being overturned, Webster served as an invitation to state legislators to test just how far the Supreme Court would let them go in regulating abortions. Between 1989 and 1992 more than 700 bills regulating abortion in various ways were introduced across the country. The bills included requirements involving parental consent, husband consent, clinic abortion reporting, and clinic licensing. All were designed to push the limits of the Court's most recent abortion ruling. Some states, such as Louisiana, even attempted to make all abortions illegal, but without success.

Pennsylvania became the first in this wave to approve new abortion restrictions when it amended the Abortion Control Act originally enacted in 1982. Governor Robert P. Casey signed the amendment in November of 1989, only four months after the Webster decision. Provisions (parts) of the amended Abortion Control Act, which immediately came under fire by Pro-Choice groups (supporting abortion rights), required:

(1) a woman seeking an abortion to give her consent and be provided with state-written information twenty-four hours before the abortion;

(2) a minor to obtain consent from one of her parents or a court;

(3) a married woman to notify her husband of her intended abortion;

(5) reporting requirements for abortion clinics.

To Court

Before any of these provisions took effect, five abortion clinics, a physician representing himself, and a class of physicians who provided abortion services went to court to have the law declared unconstitutional. They contended the law violated a woman's right to choose an abortion free from state interference. All parties were combined into one case, Planned Parenthood of Southeastern Pennsylvania v. Casey.

The District Court ruled that all provisions being challenged were unconstitutional and stopped Pennsylvania from enforcing them. The Court of Appeals for the Third Circuit went almost entirely toward the opposite direction, upholding all the provisions except for the husband notification requirement. The stage was set for the U.S. Supreme Court to hear the case.

To The Heart of Roe v. Wade

Oral arguments began on April 22, 1992 bringing hundreds of thousands of Pro-Choice and Pro-Life (opposing abortions and Roe v. Wade decision) women and men to Washington, D.C. As demonstrators rallied outside, lawyers inside took their arguments straight to the heart of Roe v. Wade.

Attorneys challenging the Pennsylvania law took the dramatic position that Roe v. Wade must be upheld and the law struckdown. Kathryn Holbert, an experienced American Civil Liberties Union (ACLU) lawyer, explained the fundamental issue,

[Does] . . . government [have] the power to force a woman to continue or to end pregnancy against her will? Since . . . Roe v. Wade, a generation of American women [have been] . . . secure in the knowledge . . . their child-bearing decisions [are protected]. This landmark decision . . . not only protects rights of bodily integrity and autonomy [control over one's own body], but has enabled millions of women to participate fully and equally in society.

On the other side, attorneys arguing for the Pennsylvania law joined by representatives of President George Bush's administration desired an overthrow of Roe v. Wade.

A Surprise Behind Closed Doors

Assuming that a majority of the other justices agreed with him, Chief Justice Rehnquist began to draft the Court's opinion to overturn Roe. Rehnquist knew he had Scalia, Clarence Thomas, and White with him. He assumed he also could count on Kennedy and most likely O'Connor. However, behind closed doors in a far corner of the Supreme Court building, Justice David H. Souter met with Kennedy and O'Connor. Unexpectedly, Kennedy changed his mind and in a compromise with O'Connor and Souter, the three fashioned an opinion leaving Roe intact while upholding the Pennsylvania law. Their private compromise derailed Rehnquist's work. According to New York Times reports, Rehnquist and Scalia "were stunned." They failed to gather the five votes needed to overthrow Roe. Souter, Kennedy, and O'Connor along with Blackmun and Justice John Paul Stevens voted to uphold the landmark decision.

The Essence of Roe

On Monday morning of June 29, 1992, observers, believing Roe would be overturned, were completely unprepared for the decision. The conservative-dominated Court defied all predictions. O'Connor, Kennedy, and Souter delivered the Court's opinion upholding "Roe's essential holding," recognizing a woman's right to choose an abortion. The three thoroughly reviewed the Roe decision (see Roe v. Wade) and the principles it was based on. The justices affirmed [supported] that the right to have an abortion is indeed a liberty protected by the Due Process Clause of the Fourteenth Amendment. Souter stated, "No state shall 'deprive any person of life, liberty, or property, without due process of law.' The controlling word . . . is 'liberty'."

In a memorable quote, the three justices stated, "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter."

In Affirming Roe

O'Connor, Kennedy, and Souter used the doctrine of stare decisis, meaning courts respect precedents. They are slow to interfere with principles announced in former decisions. Their opinion referred to many former cases which collectively defined liberties not specifically written in the Constitution or Bill of Rights.

The justices rejected "Roe's rigid trimester [based on stages of pregnancy] framework. . . " Instead, the "undue burden standard should be employed. An undue burden exists, and therefore a provision of law is invalid [unlawful], if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus [unborn child] attains viability."

Since Roe recognized a state's interest in the potential life of the fetus, the justices wrote that a state may impose requirements without causing an undue burden on the woman, such as a rquired waiting period during which the woman would receive further information on the process of abortion. With this, the justices upheld all of the provisions of the Pennsylvania Abortion Control Act except requiring the woman to notify her husband of the intended abortion. The Court considered this requirement an undue burden.

In all, the Court reaffirmed the essential principles of Roe while also allowing states to impose requirements on the abortion process just so long as they do not cause an undue burden on the woman.


Politically, both sides, Pro-Choice and Pro-Life, declared defeat. Pro-Choice asserted that state regulations such as mandatory waiting periods and parental consent would work together to weaken Roe. Furthermore, Pro-Choice groups realized they were only one vote away from seeing Roe overturned. On the other side, Pro-Life groups had clearly failed to have abortion made illegal.


T wo questions asked by the Gallup Poll show how Americans's attitudes toward abortion have changed over the years. "With respect to the abortion issue, would you consider yourself to be pro-choice or pro-life?" In September of 1997, 56 percent of Americans regarded themselves as pro-choice and 33 percent pro-life. By Spring of 1999 the gap had closed to 48 percent pro-choice and 42 per cent pro-life.

"Do you think abortions should be legal under any circumstances, legal only under certain circumstances, or illegal in all circumstances?" In April of 1975, 21 percent of Americans answered yes to legal under any circumstance. Fifty-four percent chose legal only under certain circumstances while 22 percent answered illegal in all circumstances. By January of 2000, twenty-seven years after Roe v. Wade, the breakdown was 26 percent, 56 percent, and 15 percent. These percentages reflect a small increase in the number of persons supporting abortion under any circumstances.

For years after the Casey decision, the case was widely believed to be the most important abortion decision since Roe. It was viewed as a case where justices put respect for earlier Court decisions ahead of political pressures. Because the decision came from a court thought to be conservative, a woman's right to an abortion appeared to rest on somewhat firmer ground.

Suggestions for further reading

The Gallup Poll. [Online] (Accessed on July 31, 2000).

The National Abortion and Reproductive Rights Action League Foundation (NARAL). [Online] Website: (Accessed on July 31, 2000).

National Right to Life Committee, Inc. [Online] Website: (Accessed on July 31, 2000).

"Roe v. Wade," A Reader. Belmont, CA: Wadsworth Publications, 1998.

Rein, Mei Ling, Siegel, Mark A., and Nancy R. Jacobs, eds. Abortion: An Eternal Social and Moral Issue. Buffalo, NY: Information Plus, 1998.