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Planned Parenthood of Southeastern PA v. Casey (1992)

In Depth


Five abortion clinics, one physician and a class of physicians who perform abortions sued to block enforcement of five provisions of the Pennsylvania Abortion Control Act.  They named as defendant Robert Casey, then-governor of Pennsylvania. A federal district court invalidated all five provisions. The Court of Appeals for the Third Circuit reversed in part, upholding all but one of the challenged provisions.  The plaintiffs sought review in the United States Supreme Court.

The Statute under Review

The provisions under review required, that an abortion be preceded by (1) the woman's informed consent and a 24-hour waiting period, (2) in the case of a minor, either the consent of one parent or judicial approval, (3) in the case of a married woman, notification of her spouse.  The statute (4) excused compliance with these requirements in the event of a medical emergency.   Finally, the statute (5) required that abortion clinics file various information reports.

The Plurality Opinion

A three-justice plurality, consisting of Justices O'Connor, Souter and Kennedy, reaffirmed what it characterized as Roe's "essential holding," forbidding states to ban abortion before viability, but permitting a post-viability ban except when the abortion is necessary to preserve a woman's life or health.  The plurality rejected Roe's characterization of abortion as a fundamental right triggering strict scrutiny, and abandoned the trimester framework.  In place of strict scrutiny, the plurality adopted an "undue burden" test for determining the constitutionality of abortion regulations, and under that test the plurality voted to uphold all provisions of the Pennsylvania law except the one requiring spousal notification.[1]

The Plurality's Reasoning

The plurality reaffirmed what it called Roe's "essential holding."  That holding, the plurality said, stood for three principles: (1) a right of the woman to choose an abortion before viability without "undue interference" by the state, (2) a state's authority to restrict post-viability abortions so long as it makes exceptions for life and health, and (3) a state's interest in both the health of the woman and fetal life throughout pregnancy.

The plurality concluded that respect for precedent (what is sometimes called stare decisis) counseled against overruling Roe in its entirety because, in the plurality's view, (1) Roe had not proven to be unworkable, (2) women had come to rely upon it, (3) Roe had not been superseded by other developments in the law, (4) the facts underpinning it had not changed. The plurality also expressed a concern that a decision to overturn Roe might be perceived as buckling to political pressure, which in turn might cause the public to question the Court's integrity as a judicial institution.

On the other hand, the plurality acknowledged that in cases after Roe, the Court had not always given proper recognition to the states' legitimate interests in protecting unborn life and preserving women's health, interests that continued throughout pregnancy.

The "Undue Burden Test."  And so, the plurality rejected the "trimester framework" and strict scrutiny in favor of a new test, the "undue burden test."  That test provides:

A.  Before viability, a state may regulate abortion so long as it does not create an undue burden.  A law creates an undue burden, the plurality said, if its purpose or effect is to "place a substantial obstacle in the path of a woman seeking an abortion" before viability. The plurality specifically noted that an undue burden does not exist if the state seeks to ensure that a woman's decision is informed.  Health regulations were also permissible so long as they did not create an undue burden.

B. After viability, the state may regulate and even ban abortion except in cases where an abortion is necessary to preserve the woman's life or health.

Medical Emergency Exception. After developing the new framework for analysis, the Court addressed Pennsylvania's medical emergency exception.  The plaintiffs claimed that the exception was too narrow to pass constitutional muster.

Pennsylvania defined "medical emergency" to mean a

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.

The plurality deferred to the Third Circuit, which had interpreted the quoted language to excuse compliance with the statutory requirements of informed consent, 24-hour waiting period, parental consent, and spousal notification if adherence to those requirements would result in a "significant threat to the life or health of a woman."  The plurality agreed that, so interpreted, the medical emergency provision was sufficiently broad and did not unduly burden the right to an abortion.

Informed Consent. The plurality upheld the informed consent provision, noting that states may require informed consent to abortion as for any medical procedure.  The plurality overruled prior cases to the extent they would have found a constitutional violation when the government requires, as Pennsylvania did here, the giving of truthful, nonmisleading information about abortion

The plurality upheld the statute's requirement that women be given information about the risks and nature of the abortion procedure, the risks of childbirth, and the age of the unborn child.  In upholding this provision, the plurality said that, among other things, it serves the psychological health of the woman.

The plurality deemed acceptable a requirement that the physician inform the woman of  the availability of information relating to fetal development and alternatives to abortion and inform her that the father of the child is required to pay child support. The plurality said that this requirement served a legitimate state interest in "protecting the life of the unborn."

The plurality rejected the claim that the informed consent requirements violated the First Amendment and the "privacy" of doctor-patient relationship.

The plurality also upheld the statute's requirement that a physician rather than an assistant provide the information.

Waiting Period. The plurality upheld the requirement that informed consent be provided 24 hours before the abortion.  The plurality concluded that both in theory and practice such a requirement did not create an undue burden. The plurality granted that the waiting period may increase costs and travel times for women.  Such "particular burdens," the plurality noted, are not "substantial obstacles."

Spousal Notice. The plurality invalidated a requirement that a married woman, except in certain cases such as sexual assault, inform her spouse of her decision to have an abortion.

The plurality concluded that for many women the notice requirement would operate as a consent requirement and thereby amount to a substantial obstacle in a large fraction of cases in which the requirement is relevant.

Parental Consent. The plurality upheld the statute's requirement of informed parental consent. The plurality left undisturbed earlier case law that had upheld parental consent requirements so long as they included, as Pennsylvania's law did, a judicial bypass mechanism. The plurality specifically rejected a challenge to the parental consent provision on the grounds that it required informed parental consent. The plurality said that what it had stated earlier with respect to informed consent is valid here.

Reporting Requirements. The plurality upheld a provision of the statute requiring clinics to file certain reports with the state, about the abortions it had provided.  The plurality concluded that the reporting requirements served the legitimate end of protecting women's health.  The plurality said that even if the requirements increased abortion costs slightly, that cost was not shown  to create a substantial obstacle so as to constitute an undue burden.


The Dissents/Concurrences

Justice Stevens.  Justice Stevens wrote an opinion dissenting in part and concurring in part.  He agreed that the parental consent requirement was constitutional.  He would have struck down most of the informed consent statute, but would have upheld the requirement that the woman be informed about  the nature and risks of the procedure.

He also would have struck down the waiting period.

Interestingly, Justice Stevens said that a "correct application" of the undue burden standard led to the same conclusion concerning the constitutionality of these various provisions as he had reached independent of that test.  Thus, from the outset, the undue burden test yielded different results when applied by different justices.

Justice Blackmun. Justice Blackmun wrote an opinion dissenting in part and concurring in part.

Justice Blackmun reasserted his view that a right to abortion is a fundamental liberty and that state infringements of it ought to be subject to the Court's highest level of review, "strict scrutiny."

Under that test, he would have struck down all of the provisions of the Pennsylvania law.

Chief Justice Rehnquist (joined by Justices White, Scalia and Thomas). The Chief Justice wrote a dissent concurring in the judgment in part and dissenting in part.

He said that Roe created a web of confusing precedents that provided little guidance to states and lower courts, and he restated his view that it ought to be overturned.

The Chief Justice stated that fundamental liberties protected by the Fourteenth Amendment are those that are "implicit in the concept of ordered liberty." The Chief Justice cited case law in which the Court did protect fundamental rights in the area of marriage and family life. But he noted that the abortion right protected by Roe is unlike any of these other rights because it "involves the purposeful termination of a potential life."

He also noted that it is not a part of American traditions to protect an abortion right as a fundamental liberty.

The Chief Justice said he would analyze the abortion regulations under the Court's most deferential standard of review, "rational basis."  Under that standard, he would uphold all of the provisions of the Pennsylvania statute.

Justice Scalia (joined by Chief Justice Rehnquist and Justices White and Thomas.  Justice Scalia wrote an opinion concurring in the judgment in part and dissenting in part.  Justice Scalia emphasized that there is no constitutional protection for a right to abortion because the text of the Constitution says nothing about an abortion right and the the traditions of American society give it no protection.

He wrote further to say that the Court, by establishing abortion as a right, had overreached into an area that properly belongs in the political process.

[1] Along with the three justices in the plurality, two other justices (Stevens and Blackmun) also voted to strike down the spousal notification provision.  The four remaining justices (Chief Justice Rehnquist and Justices White, Scalia, and Thomas) voted to uphold all the challenged provisions of the Pennsylvania statute, and would have overruled Roe in its entirety.  Thus, with the exception of the spousal notification provision, seven justices voted to uphold the statute and to modify Roe substantially; they differed in how far they would have gone in rewriting that decision.

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