Petitioner
Planned Parenthood of Southeastern Pennsylvania
Respondent
Robert P. Casey, Governor of Pennsylvania, et al.
Petitioner's Claim
That under the due process clause of the Constitution, the 1988 and 1989 amendments to the Pennsylvania abortion law were illegal.
Chief Lawyer for Petitioner
Kathryn Kolbert
Chief Lawyer for Respondent
Ernest D. Preate, Jr., Attorney General of Pennsylvania
Justices for the Court
Harry A. Blackmun, Anthony M. Kennedy (writing for the Court), Sandra Day O'Connor, David H. Souter, John Paul Stevens
Justices Dissenting
William H. Rehnquist, Antonin Scalia, Clarence Thomas, Byron R. White
Place
Washington, D.C.
Date of Decision
29 June 1992
Decision
Judicial respect for precedent required the Court to reaffirm Roe v. Wade, the Court's 1973 decision making abortion legal in the United States. The justices declared Pennsylvania's Abortion Control Act law constitutional inpart and unconstitutional in part.
Significance
In the words of Pulitzer Prize winning historian David J. Garrow, "Casey was a watershed event in American history." It resolved a national disputeover abortion by upholding the essentials of Roe v. Wade while permitting Pennsylvania to regulate abortions as long as the state did not place anundue burden on women.
In 1989, the Supreme Court allowed the states more leeway in regulating abortions, with Webster v. Reproductive Health Services. In its aftermath,anti-abortion groups stepped up their campaign to harass abortion clinics throughout the nation. Radical, fringe antiabortion activists threw firebombs, videotaped the children of medical employees, threatened patients, poured gluein keyholes, and distributed posters identifying doctors and nurses as "babykillers."
In 1982, the growing pro-life movement was ready to test the Supreme Court'slandmark 1973 decision in Roe v. Wade, which protects a woman's rightto an abortion. That year, Pennsylvania passed the Abortion Control Act, followed by amendments in 1988 and 1989. Governor Robert P. Casey signed the lastone in November of 1989, only four months after the Webster decision.
The Abortion Control Act required that women seeking abortions give their informed consent--clinics must provide them with state-scripted information about the abortion at least 24 hours before the procedure. The statute also required the informed consent of one parent in order for a minor to obtain an abortion, although it provided "judicial by-pass" steps for the teen to go to court for permission in special cases.
One section of the law required a wife seeking an abortion to sign a statement that she had notified her husband. The statute also imposed reporting requirements on clinics providing abortions. The regulations were lifted only in emergencies.
Before any of the provisions had taken effect, women's groups, clinics, and doctors challenged the law. Five abortion clinics and a doctor representing aclass of physicians who provided abortion services went to court to have thelaw declared unconstitutional. The challenges to the 1988 and 1989 Abortion Control Acts merged into one case--Planned Parenthood of Southeastern Pennsylvania v. Casey.
Win Some, Lose Some
The district court declared the law unconstitutional except for one provisionrequiring physicians to tell women the age of her embryo or fetus. The casethen went through two appeals--on 21 October 1991, and 30 October 1992. The Court of Appeals, striking down the husband-notification provision, upheld theothers. The stage was set for Supreme Court appeals by both sides.
The oral arguments began on 22 April, a month that brought 500,000 pro-choicewomen to the nation's capital. Kathryn Kolbert, an experienced American Civil Liberties Union (ACLU) lawyer, explained the fundamental issue for the plaintiffs:
Kolbert's opponent, Ernest D. Preate, Jr., followed her to the floor. He hadspoken only a few words when Justice Blackmun, the 83-year old author of Roe v. Wade, interrupted, "Have you read Roe?" Preate replied, "Yes." Then, before Preate could finish his remarks, Justice O'Connor showered him with critical questions regarding the spousal notification clause. JusticesStevens and Kennedy continued her skeptical line of questioning, followed byJustice Souter.
Next, U.S. Solicitor General Kenneth W. Starr, representing the administration of President George Bush, came to the lectern to attack Roe v. Wade.According to historian David J. Garrow, Souter "pressed Starr to concede that if his position prevailed, states could outlaw all abortions, exceptperhaps those where a pregnancy directly threatened a woman's life." Souterquestioned Starr about whether a complete ban on abortions would meet the Webster case's "rational basis" standard. Starr answered that any law would have to include the life of the mother exception or else face "serious questions." Souter remarked in exasperation, "You're asking the Court to adopt astandard and I think we ought to know where the standard would take us."
The Dark Horse
The final vote would rest on Souter's actions. From earlier conversations hesuspected that O'Connor, Kennedy, and himself, could agree that the Pennsylvania law could be upheld and still leave Roe intact.
However, Chief Justice Rehnquist had already begun to draft the Court's opinion to overturn Wade, assuming the other judges agreed with him. Then, unexpectedly, Kennedy changed his mind, joining Souter and O'Connor in a compromise.Behind the scenes, Souter began working out the details of the middle ground.
In May, before Rehnquist had finished his opinion, Kennedy, Souter, and O'Connor met in Souter's chambers on the far southeastern corner of the main floor. Their private conversations led to a joint decision to uphold Roe, derailing Rehnquist's work. When they discovered the switch, Rehnquist and Scalia "were stunned," according to the New York Times. They had failed to capture the five votes they needed to overthrow Roe. Instead, Souterand his allies--along with Blackmun and Stevens--were voting to uphold the landmark decision.
On Monday morning, 29 June 1992, on the final day of the term, observers wereunprepared for the results. In a rare action, O'Connor, Kennedy and Souter--on behalf of Blackmun and Stevens--delivered the opinion of the Court, upholding Roe's "essential holding."
The three then described "a realm of personal liberty which the government may not enter." Kennedy wrote, "At the heart of liberty is the right to defineone's own concept of existence, of meaning, of the universe, and of the mystery of human life." In abortion, "the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law." A woman's "suffering is too intimate and personal for the State to insist . . . upon its ownvision of the woman's role, however dominant that vision has been in the course of our history and our culture."
However, the most original opinion came from Souter: "The ability of women toparticipate equally in the economic and social life of the Nation [for 20 years] has been facilitated by their ability to control their reproductive lives . . . " He noted that the Court's decision on Roe had a "dimension"that was present only when a decision "calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution." However, he recognized that there were always going to be efforts to thwart putting such a decision into effect. Therefore, "only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure, and an unjustified repudiationof the principle on which the Court staked its authority in the first instance."
The majority held that the doctrine of stare decisis--the rule by which courts are slow to interfere with principles announced in former decisions--required that Roe v. Wade be affirmed in its "essential holding," recognizing a woman's right to choose an abortion. The Court also established that an "undue burden test," not Roe's "trimester" framework, be used in evaluating abortion restrictions before viability.
The Court accepted the Abortion Control Act except for the spousal notification provision, which did impose an undue burden and was therefore unconstitutional. Therefore, Planned Parenthood of Southeastern Pennsylvania v. Casey was affirmed in part, reversed in part.
Because of this decision by a Court widely thought to be conservative, a woman's right to an abortion today rests on even firmer legal foundations than before.
Related Cases
Massachusetts's Abortion Consent Act
In 1974, the chief legislative body in Massachusetts passed an abortion consent act that became part of the commonwealth's legal code. The law states in part that a doctor cannot perform an abortion without written consent from thepregnant patient. The consent form should be in simple-to-understand language and contain information regarding the procedure the physician will have toperform in order to end the pregnancy, possible complications associated withthe procedure, and available alternatives to abortion.
The act further provides that, if the pregnant woman is under 18 years of age, both she and her parents must sign the consent form. Finally, in a change adopted in 1980, the law permits a pregnant teen who cannot gain the consent of her parents, or elects not to seek it, to petition a judge to make such a determination.
Planned Parenthood opposed the informed-consent requirement in the state caseof Planned Parenthood of Massachusetts v. Belotti (1987). As a resultof its victory, the state struck down a requirement of a 24 hour waiting period before a woman signs a consent form, as well as a requirement that the physician inform the pregnant woman of the stage of the unborn child's development before terminating the pregnancy.
Sources
Massachusetts General Laws Annotated, Chapter 112, Section 12S.
Planned Parenthood of Southeastern Pennsylvania
Respondent
Robert P. Casey, Governor of Pennsylvania, et al.
Petitioner's Claim
That under the due process clause of the Constitution, the 1988 and 1989 amendments to the Pennsylvania abortion law were illegal.
Chief Lawyer for Petitioner
Kathryn Kolbert
Chief Lawyer for Respondent
Ernest D. Preate, Jr., Attorney General of Pennsylvania
Justices for the Court
Harry A. Blackmun, Anthony M. Kennedy (writing for the Court), Sandra Day O'Connor, David H. Souter, John Paul Stevens
Justices Dissenting
William H. Rehnquist, Antonin Scalia, Clarence Thomas, Byron R. White
Place
Washington, D.C.
Date of Decision
29 June 1992
Decision
Judicial respect for precedent required the Court to reaffirm Roe v. Wade, the Court's 1973 decision making abortion legal in the United States. The justices declared Pennsylvania's Abortion Control Act law constitutional inpart and unconstitutional in part.
Significance
In the words of Pulitzer Prize winning historian David J. Garrow, "Casey was a watershed event in American history." It resolved a national disputeover abortion by upholding the essentials of Roe v. Wade while permitting Pennsylvania to regulate abortions as long as the state did not place anundue burden on women.
In 1989, the Supreme Court allowed the states more leeway in regulating abortions, with Webster v. Reproductive Health Services. In its aftermath,anti-abortion groups stepped up their campaign to harass abortion clinics throughout the nation. Radical, fringe antiabortion activists threw firebombs, videotaped the children of medical employees, threatened patients, poured gluein keyholes, and distributed posters identifying doctors and nurses as "babykillers."
In 1982, the growing pro-life movement was ready to test the Supreme Court'slandmark 1973 decision in Roe v. Wade, which protects a woman's rightto an abortion. That year, Pennsylvania passed the Abortion Control Act, followed by amendments in 1988 and 1989. Governor Robert P. Casey signed the lastone in November of 1989, only four months after the Webster decision.
The Abortion Control Act required that women seeking abortions give their informed consent--clinics must provide them with state-scripted information about the abortion at least 24 hours before the procedure. The statute also required the informed consent of one parent in order for a minor to obtain an abortion, although it provided "judicial by-pass" steps for the teen to go to court for permission in special cases.
One section of the law required a wife seeking an abortion to sign a statement that she had notified her husband. The statute also imposed reporting requirements on clinics providing abortions. The regulations were lifted only in emergencies.
Before any of the provisions had taken effect, women's groups, clinics, and doctors challenged the law. Five abortion clinics and a doctor representing aclass of physicians who provided abortion services went to court to have thelaw declared unconstitutional. The challenges to the 1988 and 1989 Abortion Control Acts merged into one case--Planned Parenthood of Southeastern Pennsylvania v. Casey.
Win Some, Lose Some
The district court declared the law unconstitutional except for one provisionrequiring physicians to tell women the age of her embryo or fetus. The casethen went through two appeals--on 21 October 1991, and 30 October 1992. The Court of Appeals, striking down the husband-notification provision, upheld theothers. The stage was set for Supreme Court appeals by both sides.
The oral arguments began on 22 April, a month that brought 500,000 pro-choicewomen to the nation's capital. Kathryn Kolbert, an experienced American Civil Liberties Union (ACLU) lawyer, explained the fundamental issue for the plaintiffs:
[Does] . . . government [have] the power to force a womanto continue or to end a pregnancy against her will? . . . Since . . . Roev. Wade, a generation of American women . . . [have been] secure in theknowledge . . . their child-bearing decisions [are protected]. This landmarkdecision . . . not only protects rights of bodily integrity and autonomy, buthas enabled millions of women to participate fully and equally in society.
Kolbert's opponent, Ernest D. Preate, Jr., followed her to the floor. He hadspoken only a few words when Justice Blackmun, the 83-year old author of Roe v. Wade, interrupted, "Have you read Roe?" Preate replied, "Yes." Then, before Preate could finish his remarks, Justice O'Connor showered him with critical questions regarding the spousal notification clause. JusticesStevens and Kennedy continued her skeptical line of questioning, followed byJustice Souter.
Next, U.S. Solicitor General Kenneth W. Starr, representing the administration of President George Bush, came to the lectern to attack Roe v. Wade.According to historian David J. Garrow, Souter "pressed Starr to concede that if his position prevailed, states could outlaw all abortions, exceptperhaps those where a pregnancy directly threatened a woman's life." Souterquestioned Starr about whether a complete ban on abortions would meet the Webster case's "rational basis" standard. Starr answered that any law would have to include the life of the mother exception or else face "serious questions." Souter remarked in exasperation, "You're asking the Court to adopt astandard and I think we ought to know where the standard would take us."
The Dark Horse
The final vote would rest on Souter's actions. From earlier conversations hesuspected that O'Connor, Kennedy, and himself, could agree that the Pennsylvania law could be upheld and still leave Roe intact.
However, Chief Justice Rehnquist had already begun to draft the Court's opinion to overturn Wade, assuming the other judges agreed with him. Then, unexpectedly, Kennedy changed his mind, joining Souter and O'Connor in a compromise.Behind the scenes, Souter began working out the details of the middle ground.
In May, before Rehnquist had finished his opinion, Kennedy, Souter, and O'Connor met in Souter's chambers on the far southeastern corner of the main floor. Their private conversations led to a joint decision to uphold Roe, derailing Rehnquist's work. When they discovered the switch, Rehnquist and Scalia "were stunned," according to the New York Times. They had failed to capture the five votes they needed to overthrow Roe. Instead, Souterand his allies--along with Blackmun and Stevens--were voting to uphold the landmark decision.
On Monday morning, 29 June 1992, on the final day of the term, observers wereunprepared for the results. In a rare action, O'Connor, Kennedy and Souter--on behalf of Blackmun and Stevens--delivered the opinion of the Court, upholding Roe's "essential holding."
The three then described "a realm of personal liberty which the government may not enter." Kennedy wrote, "At the heart of liberty is the right to defineone's own concept of existence, of meaning, of the universe, and of the mystery of human life." In abortion, "the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law." A woman's "suffering is too intimate and personal for the State to insist . . . upon its ownvision of the woman's role, however dominant that vision has been in the course of our history and our culture."
However, the most original opinion came from Souter: "The ability of women toparticipate equally in the economic and social life of the Nation [for 20 years] has been facilitated by their ability to control their reproductive lives . . . " He noted that the Court's decision on Roe had a "dimension"that was present only when a decision "calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution." However, he recognized that there were always going to be efforts to thwart putting such a decision into effect. Therefore, "only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure, and an unjustified repudiationof the principle on which the Court staked its authority in the first instance."
The majority held that the doctrine of stare decisis--the rule by which courts are slow to interfere with principles announced in former decisions--required that Roe v. Wade be affirmed in its "essential holding," recognizing a woman's right to choose an abortion. The Court also established that an "undue burden test," not Roe's "trimester" framework, be used in evaluating abortion restrictions before viability.
The Court accepted the Abortion Control Act except for the spousal notification provision, which did impose an undue burden and was therefore unconstitutional. Therefore, Planned Parenthood of Southeastern Pennsylvania v. Casey was affirmed in part, reversed in part.
Because of this decision by a Court widely thought to be conservative, a woman's right to an abortion today rests on even firmer legal foundations than before.
Related Cases
- Roe v. Wade, 410 U.S. 113 (1973).
- Webster v. Reproductive Health Services, 492 U.S. 490 (1989).
Massachusetts's Abortion Consent Act
In 1974, the chief legislative body in Massachusetts passed an abortion consent act that became part of the commonwealth's legal code. The law states in part that a doctor cannot perform an abortion without written consent from thepregnant patient. The consent form should be in simple-to-understand language and contain information regarding the procedure the physician will have toperform in order to end the pregnancy, possible complications associated withthe procedure, and available alternatives to abortion.
The act further provides that, if the pregnant woman is under 18 years of age, both she and her parents must sign the consent form. Finally, in a change adopted in 1980, the law permits a pregnant teen who cannot gain the consent of her parents, or elects not to seek it, to petition a judge to make such a determination.
Planned Parenthood opposed the informed-consent requirement in the state caseof Planned Parenthood of Massachusetts v. Belotti (1987). As a resultof its victory, the state struck down a requirement of a 24 hour waiting period before a woman signs a consent form, as well as a requirement that the physician inform the pregnant woman of the stage of the unborn child's development before terminating the pregnancy.
Sources
Massachusetts General Laws Annotated, Chapter 112, Section 12S.
User Comments Add a comment…