Planned Parenthood of Southeastern Pa. v. Casey, 510 U.S. 1309 (1994)

Notable Items:

Part II of Pluarity Opinion details the basis and history of Substantive Due Process.
Part III A 3 details history of Supreme Court abortion decisions from Roe to Casey.
Part III B "A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the Government. No misconception could do more lasting injury to this Court and to the system of law which it is our abiding mission to serve") Mapp v. Ohio, 367 U. S. 643, 677 (1961) (Harlan, J., dissenting).

Petitioner: Planned Parenthood of Southeastern Pa.
Respondent: Casey, et. al.
Venue:
Opinion of the Court: Planned Parenthood of Southeastern Pa. v. Casey (1992)

Issue(s) Before the Court:

Whether the decision in Roe v. Wade should be overturned as wrongly decided.

Petitioner's Claim(s):

Respondent's Claim(s):

Holding(s) and Disposition:

Held: No. Roe v. Wade is affirmed.
... the state’s compelling interest in protecting the life of an unborn child means that it can ban an abortion of a viable fetus under any circumstances except when the health of the mother is at risk.
... laws restricting abortion should be evaluated under an undue burden standard
Disposition:

Material Facts:

A full recounting of the facts is available below

Procedural History:

... the petitioners, who are five abortion clinics and one physician representing himself as well as a class of physicians who provide abortion services, brought this suit seeking declaratory and injunctive relief.
Each provision was challenged as unconstitutional on its face.
The District Court entered a preliminary injunction against the enforcement of the regulations, and, after a 3-day bench trial, held all the provisions at issue here unconstitutional, entering a permanent injunction against Pennsylvania's enforcement of them.
The Court of Appeals for the Third Circuit affirmed in part and reversed in part, upholding all of the regulations except for the husband notification requirement.
We granted certiorari.

Rationale

Plurality Opinion of the Court for Parts I, II, III, V-A, V-C, and VI (O'Connor, Kennedy, Souter)

Only where state regulation imposes an undue burden on a woman’s ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause.
(a) An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.
(b) ... the State may take measures to ensure that the woman’s choice is informed, and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion.
(c) ... the State may enact regulations to further the health or safety of a woman seeking an abortion.
(d) Our adoption of the undue burden analysis does not disturb the central holding of Roe v. Wade, and we reaffirm that holding.
(e) “subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”
A full description of the rationale is available below

Stevens Concurrance in Parts IV; V-B, and V-D (??) (page 911)

Roe is an integral part of a correct understanding of both the concept of liberty and the basic equality of men and women.
... the State’s obligation to protect the life or health of the mother must take precedence over any duty to the unborn.
The fact that the State’s interest is legitimate does not tell us when, if ever, that interest outweighs the pregnant woman’s interest in personal liberty.
The Constitution would be equally offended by an absolute requirement that all women undergo abortions as by an absolute prohibition on abortions.
A burden may be “undue” either because the burden is too severe or because it lacks a legitimate, rational justification.

Blackmun Concurrance in Parts I, II, III, V-A, V -C, and VI

Rehnquist Concurrance in part, dissent in part (White, Scalia, Thomas)

We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases.
We would adopt the approach of the plurality in Webster v. Reproductive Health Services, 492 U. S. 490 (1989), and uphold the challenged provisions of the Pennsylvania statute in their entirety.
[Rehnquist complains about the decisions of the court on which he sits.]
On this record, it can scarcely be said that any deeply rooted tradition of relatively unrestricted abortion in our history supported the classification of the right to abortion as “fundamental” under the Due Process Clause of the Fourteenth Amendment.
... the Court was mistaken in Roe when it classified a woman’s decision to terminate her pregnancy as a “fundamental right” that could be abridged only in a manner which withstood “strict scrutiny.”

Scalia Concurrance in part, dissent in part (White, Rehnquist, Thomas)

Full Recounting of Facts

The Pennsylvania Abortion Control Act of 1982 contained five controversial provisions:
1. doctors were required to inform women considering abortion about its potential negative impacts on their health;
2. women were required to give notice to husbands before obtaining an abortion;
3. children were required to get consent from a parent or guardian;
4. a 24-hour waiting period was required between deciding to have an abortion and undergoing the procedure; and
5. reporting requirements were imposed on facilities offering abortions.
An independent physician, a group of physicians providing abortion services, and five abortion clinics in Pennsylvania filed a lawsuit in federal district court seeking to enjoin enforcement of these provisions of the law on the grounds that they were facially unconstitutional.
A list of the material facts is available above

Plurality Full Argument

[Part I -- Background]
Further, [Rehnquist] admits that he would overrule the central holding of Roe and adopt the rational relationship test as the sole criterion of constitutionality.
After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed.
It must be stated at the outset and with clarity that Roe's essential holding, the holding we reaffirm, has three parts.
1. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State.
2. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life or health.
3. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.
[Part II -- Substantive Due Process]
Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment.
The controlling word in the cases before us is "liberty."
The most familiar of the substantive liberties protected by the Fourteenth Amendment are those recognized by the Bill of Rights.
It is tempting, as a means of curbing the discretion of federal judges, to suppose that liberty encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight Amendments to the Constitution.
But of course this Court has never accepted that view.
It is also tempting, for the same reason, to suppose that the Due Process Clause protects only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified.
But such a view would be inconsistent with our law.
See Loving v. Virginia, Turner v. Safley, Carey v. Population Services International, Griswold v. Connecticut, Pierce v. Society of Sisters, Meyer v. Nebraska
Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.
The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts always have exercised: reasoned judgment.
Our obligation is to define the liberty of all, not to mandate our own moral code.
It is conventional constitutional doctrine that where reasonable people disagree the government can adopt one position or the other
That theorem, however, assumes a state of affairs in which the choice does not intrude upon a protected liberty.
At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.
Though abortion is conduct, it does not follow that the State is entitled to proscribe it in all instances.
That is because the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law.
[Part III A -- Stare Decisis]
The obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit.
Indeed, the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable.
At the other extreme, a different necessity would make itself felt if a prior judicial ruling should come to be seen so clearly as error that its enforcement was for that very reason doomed.
Rather, when this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case.
So in this case we may enquire whether Roe's central rule has been found unworkable; whether ... could be removed without serious inequity ... central rule a doctrinal anachronism ... its central holding somehow irrelevant or unjustifiable in dealing with the issue it addressed.
[Part III A 1 -- not unworkable]
[Part III A 2 -- reliance]
[Part III A 3 -- anachronism or error]
Roe, however, may be seen not only as an exemplar of Griswold liberty but as a rule (whether or not mistaken) of personal autonomy and bodily integrity, with doctrinal affinity to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection.
Nor will courts building upon Roe be likely to hand down erroneous decisions as a consequence. Even on the assumption that the central holding of Roe was in error, that error would go only to the strength of the state interest in fetal protection, not to the recognition afforded by the Constitution to the woman's liberty.
If indeed the woman's interest in deciding whether to bear and beget a child had not been recognized as in Roe, the State might as readily restrict a woman's right to choose to carry a pregnancy to term as to terminate it, to further asserted state interests in population control, or eugenics, for example.
Yet Roe has been sensibly relied upon to counter any such suggestions.
[Part III A 4 -- factual assumptions changing over time]
But these facts go only to the scheme of time limits on the realization of competing interests, and the divergences from the factual premises of 1973 have no bearing on the validity of Roe's central holding, that viability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.
[Part III A 5 -- summation]
Within the bounds of normal stare decisis analysis, then, and subject to the considerations on which it customarily turns, the stronger argument is for affirming Roe's central holding, with whatever degree of personal reluctance any of us may have, not for overruling it.
[Part III B -- Stare Decisis additional considerations]
But the sustained and widespread debate Roe has provoked calls for some comparison between that case and others of comparable dimension that have responded to national controversies and taken on the impress of the controversies addressed.
Only two such decisional lines ... in each instance the result reached by the Court accorded with the principles we apply today.
Lochner v. New York
the interpretation of contractual freedom protected in Adkins rested on fundamentally false factual assumptions about the capacity of a relatively unregulated market to satisfy minimal levels of human welfare. See West Coast Hotel Co., supra, at 399.
... the clear demonstration that the facts of economic life were different from those previously assumed warranted the repudiation of the old law.
Plessy v. Ferguson
... it was clear by 1954 that legally sanctioned segregation had just such an effect, to the point that racially separate public educational facilities were deemed inherently unequal.
Society's understanding of the facts upon which a constitutional ruling was sought in 1954 was thus fundamentally different from the basis claimed for the decision in 1896.
... we must also recognize that the Plessy Court's explanation for its decision was so clearly at odds with the facts apparent to the Court in 1954 that the decision to reexamine Plessy was on this ground alone not only justified but required.
In constitutional adjudication as elsewhere in life, changed circumstances may impose new obligations, and the thoughtful part of the Nation could accept each decision to overrule a prior case as a response to the Court's constitutional duty.
Because neither the factual underpinnings of Roe's central holding nor our understanding of it has changed (and because no other indication of weakened precedent has been shown), the Court could not pretend to be reexamining the prior law with any justification beyond a present doctrinal disposition to come out differently from the Court of 1973.
"A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the Government. No misconception could do more lasting injury to this Court and to the system of law which it is our abiding mission to serve") Mapp v. Ohio, 367 U. S. 643, 677 (1961) (Harlan, J., dissenting).
[Part III C -- ]
[Part IV -- Viability replaces Trimester Framework (page 869)]
We conclude the line should be drawn at viability, so that before that time the woman has a right to choose to termi- nate her pregnancy.
... the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman.
... it might be said that a woman who fails to act before viability has consented to the State’s intervention on behalf of the developing child.
Roe established a trimester framework to govern abortion regulations.
... almost no regulation at all is permitted during the first trimester of pregnancy;
... regulations designed to protect the woman’s health, but not to further the State’s interest in potential life, are permitted during the second trimester; and
... during the third trimester, when the fetus is viable, prohibitions are permitted provided the life or health of the mother is not at stake.
It follows that States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning.
We reject the trimester framework, which we do not consider to be part of the essential holding of Roe.
The trimester framework suffers from these basic flaws: in its formulation it misconceives the nature of the pregnant woman’s interest; and in practice it undervalues the State’s interest in potential life, as recognized in Roe.
[Enter the Undue Burden test]
Only where state regulation imposes an undue burden on a woman’s ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause.
(a) An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.
(b) ... the State may take measures to ensure that the woman’s choice is informed, and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion.
(c) ... the State may enact regulations to further the health or safety of a woman seeking an abortion.
(d) Our adoption of the undue burden analysis does not disturb the central holding of Roe v. Wade, and we reaffirm that holding.
(e) “subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”
[Part V-- Apply undue burden standard to each (five) statutory section]
[Part VI -- Constitution as Covenant]
The core of the rationale is available above