Question List

Q. What regulations has the Court deemed constitutionally permissible?

The Court's detailed and complex legal rules brought it to a point at which the Court's own members recognized that its abortion jurisprudence had gone too far.

Dissenting in Thornburgh, Chief Justice Burger expressed astonishment that the Court would, for example, strike down regulations designed simply to ensure that a woman's consent to an abortion is informed. "If Danforth and today's holding really mean what they seem to say," he wrote, "I agree we should reexamine Roe."1

Echoing these sentiments, in 1989 in Webster v. Reproductive Health Services, Chief Justice Rehnquist, joined by Justices White and Kennedy, wrote that the Court's abortion jurisprudence had resulted in a "web of legal rules that have become increasingly intricate, resembling a code of regulations rather than a body of constitutional doctrine."2 With this decision, the Court began dismantling the "trimester framework" and its treatment of abortion as a fundamental "right" subject to strict scrutiny, the most exacting form of judicial review. The Court held that a state may make a policy statement that "the life of each human being begins at conception," and that "unborn children have protectable interests in life, health, and well-being."3 But such a policy statement must be restrained by the limits of the Constitution as determined by the Supreme Court. The statement is a permissible "value judgment" of a state so long as it is not used to unconstitutionally restrict the "right" to abortion as defined by the Court.4

And then, with its 1992 decision in Planned Parenthood v. Casey, the Court adopted an entirely new standard for reviewing abortion regulations.5 Under Casey's "undue burden standard," the state may regulate abortion so long as the regulation does not place a "substantial obstacle in the path of a woman seeking an abortion" before viability.6 The state may also further its interest in potential life, but any such regulation "must be calculated to inform the woman's free choice, not hinder it."7 By virtue of the Casey decision, federal courts no longer apply strict scrutiny to abortion regulations.

Using the new standard, Casey upheld, with a statutory exception for medical emergencies, a law requiring informed consent throughout pregnancy. An informed consent requirement can include telling the woman about the procedure and its risks, the likely age of her child and about the availability of printed materials. The printed materials, describing the unborn child and providing information about alternatives to abortion, were judged constitutional.8

Casey also upheld a twenty-four waiting period despite some increased expense and delay. The Court said that such burdens did not amount to a "substantial obstacle."9 Consistent with earlier precedent, Casey also upheld an informed parental consent law with a judicial bypass.10

And finally, Casey upheld requirements that abortion facilities keep records and reports with the names of the physician, facility, and referring physician or agency; the age of each woman; the number of each woman's prior pregnancies and prior abortions; pre-existing conditions which would complicate pregnancy; medical complications experienced with any abortions; the basis for a physician's medical judgment that an abortion was necessary to prevent maternal death or a substantial and irreversible impairment; the weight of the unborn child; and the number of abortions performed by trimester.11

Though the "undue burden" standard allows states greater latitude in protecting pregnant women and their unborn children, Casey reaffirmed "the central holding of Roe" (which includes Doe).  That holding forbids the federal government and the states to ban abortion before viability, or after viability when the abortion is "necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."12 Copyright © 2018 NCHLA