Planned Parenthood of Southeastern Pennsylvania v. Casey

The final vote would rest on Souter's actions. From earlier conversations he suspected 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, Souter and 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 were unprepared 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 define one'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 own vision 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 to participate 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 repudiation of 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.