Planned Parenthood v. Casey

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Planned Parenthood of Southeastern Pennsylvania v. Casey
Seal of the United States Supreme Court.svg
Argued April 22, 1992
Decided June 29, 1992
Full case name Planned Parenthood of Southeastern Pennsylvania, et al. v. Robert P. Casey, et al.
Citations 505 U.S. 833 (more)
112 S. Ct. 2791; 120 L. Ed. 2d 674; 1992 U.S. LEXIS 4751; 60 U.S.L.W. 4795; 92 Daily Journal DAR 8982; 6 Fla. L. Weekly Fed. S 663
Prior history Judgment and injunction for plaintiffs, 686 F. Supp. 1089 (E.D. Pa. 1988); injunction clarified, 736 F.Supp. 633 (E.D. Pa. 1990); judgment and injunction granted for plaintiffs, 744 F.Supp. 1323 (E.D. Pa. 1990) (regarding 1988 amendments to 1982 Act); affirmed in part and reversed in part, 947 F. 2d 682 (3d Cir. 1991); certiorari granted 502 U.S. 1056 (1992)
Subsequent history Remanded, 978 F.2d 74 (2d Cir. 1992); motion to disqualify judge denied, 812 F. Supp. 541 (E.D. Pa. 1993); record reopened and injunctions continued, 822 F. Supp. 227 (E.D. Pa. 1993); reversed and remanded, 14 F.3d 848 (3d Cir. 1994); stay denied, 510 U.S. 1309 (1994); attorney fees and costs awarded to plaintiffs, 869 F. Supp. 1190 (E.D. Pa. 1994); affirmed, 60 F.3d 816 (3d Cir. 1995)
A Pennsylvania law that required spousal awareness prior to obtaining an abortion was invalid under the Fourteenth Amendment because it created an undue burden on married women seeking an abortion. Requirements for parental consent, informed consent, and 24-hour waiting period were constitutionally valid regulations. Third Circuit Court of Appeals affirmed in part and reversed in part.
Court membership
Case opinions
Plurality O'Connor, Kennedy, Souter (jointly)
Concur/dissent Stevens
Concur/dissent Blackmun
Concur/dissent Rehnquist, joined by White, Scalia, Thomas
Concur/dissent Scalia, joined by Rehnquist, White, Thomas
Laws applied
U.S. Const. amends. I, XIV; 18 Pa. Cons. Stat. §§ 3203, 3205-09, 3214 (Pennsylvania Abortion Control Act of 1982)
This case overturned a previous ruling
City of Akron v. Akron Center for Reproductive Health, Thornburgh v. American College of Obstetricians and Gynecologists

Planned Parenthood v. Casey, 505 U.S. 833 (1992) was a case decided by the Supreme Court of the United States in which the constitutionality of several Pennsylvania state regulations regarding abortion were challenged. The Court's plurality opinion upheld the constitutional right to have an abortion and altered the standards for analyzing restrictions of that right, invalidating one regulation but upholding the other four.

Background of the case[edit]

Five provisions of the Pennsylvania Abortion Control Act of 1982 authored by Rep. Stephen F. Freind[1] were being challenged as unconstitutional under Roe v. Wade, which first recognized a constitutional right to have an abortion in the liberty protected by the Due Process Clause of the Fourteenth Amendment.

  • The informed consent rule under the act required doctors to inform women about detriments to health in abortion procedures.
  • The spousal notice rule required women to give prior notice to their husbands.
  • The parental notification and consent rule required minors to receive consent from a parent or guardian prior to an abortion.
  • The fourth provision imposed a 24-hour hold before obtaining an abortion.
  • The fifth provision challenged in the case was the imposition of certain reporting mandates on facilities providing abortion services.

The case was a seminal one in the history of abortion decisions in the United States. It was the first case that provided an opportunity to overturn Roe since the two liberal Justices, William Brennan and Thurgood Marshall, were replaced with the Bush-appointed Justices David Souter and Clarence Thomas. Both were viewed as ostensible conservatives compared with their predecessors. This left the Court with eight Republican-appointed justices—six of whom had been appointed by Presidents Reagan or Bush, both of whom were well known for their opposition to Roe. Finally, the only remaining Democratic appointee—Justice Byron White—had been one of the two dissenters from the original Roe decision.

At this point, only two of the Justices were obvious supporters of Roe v. Wade: Blackmun, the author of Roe, and Stevens, who had joined opinions specifically reaffirming Roe in City of Akron v. Akron Center for Reproductive Health and Thornburgh v. American College of Obstetricians and Gynecologists. Given these circumstances, some pro-choice advocates expected Roe to be overruled.[citation needed]

The case was argued by ACLU attorney Kathryn Kolbert for Planned Parenthood, with Linda J. Wharton serving as Co-Lead Counsel. Pennsylvania attorney general Ernie Preate argued the case for the State. Upon reaching the Court of last resort, the United States defended the Act in part by urging the Court to overturn Roe as having been wrongly decided, filing an amicus curiae brief with representation from Solicitor General Ken Starr for the Bush Administration.

The case defined where the role of women was seen in law. 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. [2]

The District Court's ruling[edit]

The plaintiffs were five abortion clinics and a class action of physicians who provide abortion services, in addition to one physician representing himself independently. They filed suit in the U.S. District Court for the Eastern District of Pennsylvania to enjoin the state from enforcing the five provisions and have them declared facially unconstitutional. The District Court, after a three-day bench trial, held that all the provisions were unconstitutional and entered a permanent injunction against Pennsylvania's enforcement of them.

Third Circuit Court of Appeals decision[edit]

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. The Third Circuit concluded that it unduly burdened women by potentially exposing them to spousal abuse, violence, and economic duress at the hands of their husbands. [3] Then-Circuit Judge Samuel Alito sat on that three-judge appellate panel and dissented from the court's invalidation of that requirement.

The Supreme Court's consideration[edit]

At the conference of the Justices two days after oral argument, Justice Souter defied expectations, joining Justices O'Connor, Stevens, and Blackmun, who had likewise refused to do so three years earlier in Webster v. Reproductive Health Services. This resulted in a precarious five Justice majority consisting of Chief Justice William Rehnquist, Byron White, Antonin Scalia, Anthony Kennedy, and Clarence Thomas that favored upholding all the abortion restrictions. However, Kennedy changed his mind shortly thereafter and joined with fellow Reagan-Bush justices Sandra Day O'Connor and David Souter to write a plurality opinion that would reaffirm Roe.[4]

The Court's opinions[edit]

Except for three opening sections of the O'Connor-Kennedy-Souter opinion, Casey was a divided judgment, as no other sections of any opinion were joined by a majority of justices. However, the plurality decision jointly written by Justices Souter, O'Connor, and Kennedy is recognized as the lead opinion with precedential weight because each of its parts was concurred in by at least two other Justices, albeit different ones for each part.

The O'Connor, Kennedy, and Souter plurality opinion[edit]

These three justices began their written opinion by noting the U.S. government's previous challenges to Roe v. Wade:

"Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, Roe v. Wade (1973), that definition of liberty is still questioned. Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe."

The plurality opinion stated that it was upholding what it called the "essential holding" of Roe. The plurality asserted that the right to abortion is grounded in the Due Process Clause of the Fourteenth Amendment, and the plurality reiterated what the Court had said in Eisenstadt v. Baird: "[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."

The plurality's opinion also included some controversial language about the doctrine of stare decisis - see the more recent discussion from Justice Roberts on stare decisis in the Citizens United v. Federal Election Commission case. The plurality emphasized the need to stand by prior decisions even if they were unpopular, unless there had been a change in the fundamental reasoning underpinning the previous decision. It also acknowledged the need for predictability and constancy in judicial decision making. For example,

"Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution."

The plurality went on to give society's rejection of the "Separate but Equal" concept as a legitimate reason for the Brown v. Board of Education court’s rejection of the Plessy v. Ferguson doctrine. Emphasizing the need to not be seen as overruling a prior decision merely because the individual members of the Court had changed, O’Connor states,

"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.”

Since the plurality overruled some portions of Roe v. Wade despite its emphasis on stare decisis, Chief Justice Rehnquist in dissent argued that this section was entirely obiter dicta. All these opening sections were joined by Justices Blackmun and Stevens for the majority. The remainder of the decision did not command a majority, but at least two other Justices concurred in judgment on each of the remaining points.

The plurality then overturned the formula used in Roe to weigh the woman's interest in obtaining an abortion against the State's interest in the life of the fetus. Continuing advancements in medical technology meant that at the time Casey was decided, a fetus might be considered viable at 22 or 23 weeks rather than at the 28 weeks that was more common at the time of Roe. The plurality recognized viability as the point at which the state interest in the life of the fetus outweighs the rights of the woman and abortion may be banned entirely "except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother".

The plurality also replaced the heightened scrutiny of abortion regulations under Roe, which was standard for fundamental rights in the Court's case law, with a lesser "undue burden" standard previously developed by O'Connor in her dissent in Akron v. Akron Center for Reproductive Health.[5] A legal restriction posing an undue burden was defined as one having "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." The plurality also overruled City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983) and Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986),[6] each of which applied "strict scrutiny" to abortion restrictions.[7]

Applying this new standard to the Pennsylvania Act under challenge, the plurality struck down the spousal notice requirement, stating that it gave too much power to husbands over their wives and would worsen situations of spousal abuse. The plurality upheld the State's 24-hour waiting period, informed consent, and parental consent requirements, holding that none constituted an undue burden.

The Plurality, in section 5 of its decision, made a special note of the precedential value of Roe v. Wade, especially how women's lives were changed by that decision:

The sum of the precedential enquiry to this point shows Roe's underpinnings unweakened in any way affecting its central holding. While it has engendered disapproval, it has not been unworkable. An entire generation has come of age free to assume Roe's concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left Roe's central holding a doctrinal remnant.

Planned Parenthood v. Casey[8]

Notable by omission in the plurality is any mention of any right to privacy coming from the Constitution; while O'Connor does use "privacy" a few times in her opinion, the usages are all in the context of a quotation or paraphrase from Roe or other previous cases.

The concurrence/dissents[edit]

William Rehnquist, Byron White, Harry Blackmun, John Paul Stevens, Antonin Scalia, and Clarence Thomas—the six Justices who did not join the plurality opinion—wrote or joined opinions in which they partially concurred and partially dissented from the decision.

Rehnquist and Scalia each joined the plurality in upholding the parental consent, informed consent, and waiting period laws. However, they dissented from the plurality's decision to uphold Roe v. Wade and strike down the spousal notification law, contending that Roe was incorrectly decided. Rehnquist and Scalia joined each other's concurrence/dissents. White and Thomas, who did not write their own opinions, joined in both.

Blackmun and Stevens wrote opinions in which they approved of the plurality's preservation of Roe and rejection of the spousal notification law. They did not, however, agree with the plurality's decision to uphold the other three laws at issue. Blackmun went further, sharply attacking and criticizing the anti-Roe bloc of the Court.

See also[edit]


  1. ^ deCourcy Hind, Michael (1992-02-21). "The 1992 Campaign: Pennsylvania; Trouble Shadows Specter in Senate Race". The New York Times. Retrieved 2009-08-15. 
  2. ^ Sexuality, Gender, and the Law, Third edition, Foundation Press, 2011
  3. ^ Constitutional Law and Politics: Civil Rights and Civil LIberties, Eighth Edition, Norton & Company, 2011
  4. ^ Lane, Charles. "All Eyes on Kennedy in Court Debate On Abortion". The Washington Post. Retrieved May 22, 2010. 
  5. ^ Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983).
  6. ^
  7. ^ Dorf, Michael C. (1996). "Incidental Burdens on Fundamental Rights". Harv. L. Rev. 109 (6): 1175–1251. JSTOR 1342214. The undue burden standard is binding on lower courts, see Marks v. United States, 430 U.S. 188, 193 (1977) (defining the holding of a divided Court as the view of the members of the Court who concurred on the narrowest grounds), although for stare decisis purposes, only the portion of the three-Justice opinion that garnered five votes counts as a full-fledged precedent in the Supreme Court itself.  [at Note 197]
  8. ^ 505 U.S. at 860, from

External links[edit]