Planned Parenthood of Southeastern PA v. Casey (1992)
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
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
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had come to rely upon it, (3) Roe had not been superseded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
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
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
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
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
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
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
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
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.
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
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
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
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.
 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.