Planned Parenthood v. Casey, 505 U.S. 833 

Supreme Court of the United States

1992

Chapter

6

Title

Implied Fundamental Rights

Page

858

Topic

Substantive Due Process:  Trimester framework rejected and replaced by undue burden test

Quick Notes

The Pennsylvania Abortion Control Act of 1982 contained certain provisions that were challenged as being unconstitutional. First, the Act requires that a woman seeking an abortion give her informed consent prior to the abortion procedure and specifies that she be provided with certain information at least 24 hours before the abortion is performed. Second, the Act requires a minor obtain parental consent, but provides for a judicial bypass. Third, the Act requires that, unless certain exceptions apply, a married woman seeking an abortion must sign a statement indicating that she has notified her husband of her intended abortion. Finally, the Act imposes reporting requirements on facilities that provide abortion services. The Act exempts these conditions in the event of a medical emergency. Before these provisions took effect, Petitioner, Planned Parenthood of Southeastern Pennsylvania, brought this suit seeking declaratory and injunctive relief. Each provision was challenged as being unconstitutional on its face. The District Court held all the provisions at issue unconstitutional. The Court of Appeals upheld all of the regulations except for the husband notification requirement.

Rule

o         The essential holding of Roe v. Wade remains valid, although the trimester framework and strict scrutiny approach are replaced by an undue burden test.

Court - Holding

o         We reaffirm that a State may require a minor to obtain the informed consent of her parents, although the State must also provide an adequate judicial bypass procedure.

o         With respect to the facility reporting requirements, we uphold the provisions because they relate to health and do not impose a substantial obstacle to a woman's choice.

Book Name

Constitutional Law : Stone, Seidman, Sunstein, Tushnet.  ISBN:  978-0-7355-7719-0

Issue

o         Whether the essential holding of Roe v. Wade should be retained and reaffirmed?  Yes.

o         Whether Roe's trimester framework be replaced by an undue burden standard? Yes.

Procedure

Trial

o         The district court held that the provisions were unconstitutional.

Appellant

o         The United States Court of Appeals for the Third Circuit affirmed in part and reversed in part, holding that only the husband notification provision, 18 Pa. Cons. Stat. § 3209, was unconstitutional.

Supreme

o         The Court applied the doctrine of stare decisis and reaffirmed the essential holdings in Roe v. Wade because that decision was still workable and its factual underpinnings had not changed. In a joint opinion, three Justices rejected Roe's trimester framework and adopted an undue burden test for determining whether State regulations had the purpose or effect of placing substantial obstacles in the path of a woman seeking an abortion before viability. The Court agreed that § 3209 imposed a substantial obstacle in a large fraction of cases and was invalid. The Court also affirmed the holding the court of appeals that 18 Pa. Cons. Stat. § 3202, the medical emergency provision, did not impose an undue burden on a woman's abortion right. A plurality of the Court determined that 18 Pa. Cons. Stat. § 3214(a)(12) was also invalid because it required a married woman to provide a reason for her failure to provide notice to her husband.

Facts/Cases

Discussion

Key Phrases

Rules/Laws

Pl -  Planned Parenthood

Df -   Casey

Description

o          The Pennsylvania Abortion Control Act of 1982 imposed several restrictions on abortions.

o         The Act required a woman seeking an abortion to be provided with certain information 24 hours prior to the abortion; required the woman to give her informed consent; mandated that a minor could not obtain an abortion without the informed consent of her parents; required a married woman to notify her husband of her intended abortion; and imposed reporting requirements on facilities that provided abortion services.

o         The Act exempted compliance with the regulations only in the event of a medical emergency.

o         Planned Parenthood of Southeastern Pa. challenged the constitutionality of the Act, seeking declaratory and injunctive relief.

District Court

o         The District Court held that all of the provisions at issue were unconstitutional.

Court of Appeals - Reversed

o         The Court of Appeals reversed, upholding all of the provisions except for the husband notification requirement.

Supreme Court

o         The Supreme Court granted certiorari to determine whether the central holding of Roe v. Wade (a pregnant woman has constitutional right to terminate her pregnancy in its early stages, even when the abortion is not necessary to save the woman's life) should be retained and applied to invalidate Pennsylvania's Act.

Justice OConnor

Whether the essential holding of Roe v. Wade should be retained and reaffirmed

Roe v. Wade - Should be retained and reaffirmed.

o         Constitutional protection of a woman's right to abortion derives from the term "liberty" in the Due Process Clause.

Realm of personal liberty - Government may not enter

o         As our cases have shown, the Constitution guarantees that there is a realm of personal liberty which the government may not enter.

Obligation to define liberty

o         Although some of us find abortion morally offensive, our Obligation is to define the liberty of all, not to mandate our own moral code.

Stare Decisis

o         Our reservations are outweighed by the explication of individual liberty combined with the force of stare decisis.

Several Stare Decisis Considerations

o         Several considerations guide the stare decisis analysis and lead to the determination that Roe should not be overturned:

(a)   Although controversial, Roe has not proven unworkable;

(b)   Roe has caused reliance by people, who have organized intimate relationships and made choices in reliance on the availability of abortion, such that repudiating the decision would cause a great hardship,

(c)   No constitutional law development has left Roe behind as a mere survivor of obsolete constitutional thinking; and

(d)   Although time has overtaken some of Roe's factual assumptions, with technological advances making abortions safe later in pregnancy and advancing viability to an earlier point, these facts go only to the scheme of time limits and have no bearing on Roe's central holding.

Overruling Roe would overtax the country's belief in the Court's good faith

o         Moreover, cases as intensely divisive as Roe carry special considerations, and overruling Roe would overtax the country's belief in the Court's good faith and would cause profound and unnecessary damage to the Court's legitimacy.

Adherence to the essences of Roes original decision

o         It is therefore imperative to adhere to the essence of Roe's original decision.

o         With regard to the time framework imposed by Roe, we uphold the position that the line should be drawn at viability, so that before that time the woman has a right to choose to terminate her pregnancy.

Whether Roe's trimester framework be replaced by an undue burden standard

Court - Roe's trimester framework should be replaced by an undue burden standard.

o         We do not consider the trimester framework to be part of the essential holding of Roe, and we do not agree that the framework is necessary to ensure that the woman's right to choose not become so subordinate to the State's interest in promoting fetal life that the woman's right exists only in theory.

Court - The trimester framework is flawed

o         The trimester framework is flawed, as it misconceives the nature of the pregnant woman's interest, and it undervalues the State's interest in potential life.

o         Roe used the framework to forbid any regulation of abortion designed to advance the State's interest before viability.

o         However, the State has a substantial interest in potential life throughout pregnancy.

Court - Unconstitutional if impose UNDUE BURDEN on a womans right to choose

o         In our view, only state regulations that impose an undue burden on a woman's right to choose are unconstitutional.

Undue burden exists - Place a substantial obstacle in path of choice

o         An undue burden exists if the law's purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.

Ensure womans choice is informed, further womans health and safety

o         As long as it does not create an undue burden, a State may take measures to ensure that the woman's choice is informed, and it may enact regulations to further the health and safety of the woman seeking the abortion.

Roe Is not disturbed

o         But our adoption of the undue burden analysis does not disturb the central holdings of Roe: a State may not prohibit any woman from deciding to terminate her pregnancy before viability; and subsequent to viability the State may proscribe abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

We now turn to the validity of the challenged provisions.

Not undue burden:  24-hour waiting period, informed consent

o         The 24-hour waiting period and informed consent requirement is not an undue burden on the right to decide to terminate a pregnancy, because it facilitates the wise exercise of that right.

Is undue burden:  husband notification

o         The husband notification requirement, on the other hand, is an undue burden.

o         The requirement often acts as a substantial obstacle to a woman's choice, and it is repugnant to our present understanding of marriage.

Court - Holding

o         We reaffirm that a State may require a minor to obtain the informed consent of her parents, although the State must also provide an adequate judicial bypass procedure.

o         With respect to the facility reporting requirements, we uphold the provisions because they relate to health and do not impose a substantial obstacle to a woman's choice.

Concur & Dissent - Justice Stevens

o         I agree with the Court's stare decisis analysis, as the costs of overruling Roe at this late date would be enormous.

Disagree with the dismantling of the trimester framework

o         However, I disagree with the dismantling of the trimester framework. It is not a contradiction to realize that the State may have a legitimate interest in potential human life and, at the same time, to conclude that that interest does not justify the regulation of abortion before viability.

Persuasion causes serious questions to arise

o         I agree that the State may take steps to ensure that a woman's choice is informed, but serious questions arise when the State attempts to persuade the woman to choose childbirth over abortion.

Materials designed to persuade her not to have an abortion

o         Those sections of the Pennsylvania law requiring a physician to provide the woman with a range of materials designed to persuade her to choose not to undergo the abortion are unconstitutional.

No evidence that 24-hours is relevant

o         The 24-hour waiting period raises even more serious concerns, as there is no evidence that the delay benefits women or that it is necessary to convey any relevant information.

Undue Burden:  Wearing down the ability of the pregnant woman

o         The State cannot further its interest in potential life by simply wearing down the ability of the pregnant woman to exercise her constitutional right.

o         The counseling provisions also create an undue burden and do not serve a useful purpose.

Concur & Dissent - Justice Blackmun

o         I remain steadfast that the right to reproductive choice is entitled to the full protection afforded by our previous cases.

Strict Scrutiny is required

o         The Constitution requires that abortion restrictions be subjected to the strictest of scrutiny.

State restrictions on abortion violate a woman's right of privacy

o         State restrictions on abortion violate a woman's right of privacy by infringing on her right to bodily integrity and by depriving her of the right to make critical choices about reproduction and family planning.

Constitutional guarantees of gender equality

o         Furthermore, restrictions implicate constitutional guarantees of gender equality, conscripting a woman's body into the State's service.

o         The strict scrutiny standard should stand, along with the trimester framework, instead of the undue burden standard.

Concur & Dissent - Justice Rehnquist

o         We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis.

Strict Scrutiny for Roe was a mistake.

o         We believe that the Court in Roe was mistaken when it classified a woman's right to terminate her pregnancy as a fundamental right that could be abridged only if it withstood strict scrutiny.

A woman does not have a fundamental right to an abortion

o         The joint opinion rejects Roe's view that a woman has a fundamental right to an abortion; it rejects Roe's strict scrutiny requirement; and it rejects the trimester framework.

o         Principles of stare decisis do not require that any portion of Roe be kept intact. 

o         In the end, the joint opinion's stare decisis argument is based on general assertions about the nation's psyche, and on the fact that Roe is so intensely divisive that it should not be overruled.

This is a novel principle.

o         Under this principle, once the Court has ruled on a divisive issue, it is prevented from overruling that decision even if it was incorrect. In addition, the joint opinion's "undue burden" standard is no more workable than the trimester framework.

Rationally Related: A State should be allowed to regulate abortion procedures

o         We think that States should be allowed to regulate abortion procedures in ways rationally related to legitimate state interests.

Is for spousal notification

o         Based on this approach, we find that the spousal notification requirement rationally furthers legitimate state interests in protecting the interests of the father and in protecting the potential life of the fetus.

Concur & Dissent - Justice Scalia

o         The power of a woman to abort her unborn child is not, I am sure, a liberty protected by the Constitution.

o         The Constitution says nothing about it, and the longstanding traditions of American society have permitted it to be legally proscribed.

Undue burden opens the door to a district judges preference

o         The joint opinion presents an undefined "undue burden" standard that invites a district judge to assert his personal preferences about abortion, and its reliance on stare decisis is contrived at best.

Roe created was wrong

o         Roe nourished, rather than resolved, the national debate on abortion.

o         Roe created a new class of abortion consumers and proponents, inflamed national politics, and kept the Court in the business of acting as umpires to the abortion controversy.

The Court should not be scared of the public

o         I am appalled by the Court's suggestion that the decision whether to stand by an erroneous constitutional decision must be influenced by substantial public opposition to the decision, and I disagree that overruling Roe would subvert the Court's legitimacy.

o          In any event, the suggestion that we would decide a case differently from the way we otherwise would have in order to show that we can stand firm against public disapproval is frightening.

o         Roe should be overruled, because it was not correctly decided and has not succeeded in producing a settled body of law.

Rules

Rule

o         The essential holding of Roe v. Wade remains valid, although the trimester framework and strict scrutiny approach are replaced by an undue burden test.

Class Notes