Legislative Blog
J.B. Williams, J.D.
Planned Parenthood v Casey
A Blog about Abortion
A Bit of Background
The following backgrounds help summarize the author's views on both the general topic: Other and more specifically Abortion as it relates to that topic.
Brief Summary of Other
Topics here may be related to legal matters but not innately legal. For instance, discussing grocery plastic bags versus cotton cloth bags. The item itself is not legal but many city governments have placed it into legislation.
Summary of Abortion
This topic is getting a lot of press again right now. It is always bubbling in the background, and now it seems to be at a boil. My opinion has always been that this is not a right protected under the constitution - that is there is no right to an abortion. I feel much the same about the claim of right to healthcare. You do not have the right to force someone else to provide these things to you. That being said, I also feel that you should not be required to continue a pregnancy that was a mistake - either contraceptive failure or assault. But I also feel that you need to be a responsible adult, and at a point there is a life inside of you that is owed protections as well. Since I do not think it is a Constitutional right, I have always felt state legislatures should be the ones making the laws. And they should be responding to their constituents when doing so.
Blog Summary
What an undue burden strikes me as a 'I'll know it when I see it' review standard. Such that whoever hears the case will make the decision based upon their life experiences and it will change over time based upon what the social standard of the moment is. This is not a Constitutional right that is being protected. That is to say that why liberty and rights should be protected, those not falling directly under the protections of the Constitution, will need to be balanced against the state's interest. I feel that there needs to be less balancing of state's interest in those liberties directly protected by the Constitution. For those not protected by the Constitution, the laws should be defaulting to assume they are not violating rights and one should have to show the violation. For those protected by the Constitution, the laws should be viewed as violating the protected right and the state should have to show it does not create a burden beyond what it must to protect the citizens of the state.
The Court in Casey felt that overturning Roe v Wade would shake the confidence of the court. They reviewed based upon a new standard for stare decisis, and based upon this standard stated they must uphold Roe. Prior standards required the upholding of the entire holding or the majority of it. Instead they overruled all but the abortion being protecting, including how it was a right under the Constitution. The Court's main opinion held agreement of 3 justices, with an an additional 2 agreeing in part and disagreeing in part but not willing to sign onto the main opinion. This was happening more and more often in abortion matters brought before the court.
The end ruling, while not stating it in the opinion, overruled several prior matters decided. It loosened the review that the court would apply to all future matters. The lower courts had heard/reviewed the case basd upon whether it laid out proper regulations for abortion; and did not believe that the case was challenging Roe v Wade at all. However, the Supreme Court heard the case and decided to review the Roe v Wade holding at this time. In the end all but 1 of the statutes was upheld under this new standard, thought several justices stated that under strict scrutiny several of those items should not have been upheld.
It seemed as if the Court were walking back the Roe holding in an incremental step rather than upholding the ruling of Roe. Over time I have heard many state the rules set out in Roe was if they are the law, but they are not. While abortion was protected, the state's interest were expanded under Casey.
Planned Parenthood v Casey
Published: 2022-06-28
Planned Parenthood v Casey
Argued April 22, 1992
Decided June 29, 1992
The following provisions of PA code were being challenged: requires a woman to give informed consent prior to the abortion and sets out information that must be provided to her at least 24 hours prior; informed consent from 1 parent of a minor but provided judicial bypass; a married woman must sign a statement saying she advised her husband; a 'medical emergency' as defined excuses compliance; and reporting requirements are established for those performing abortions. Prior to enactment, five abortion clinics and their medical doctors sued. They were able to get the acts declared unconstitutional and their enforcement enjoined. The Court of Appeals overturned, striking down only the notice to husband portion.
Three justices delivered the Courts opinion. (Justice O'Connor, Justice Kennedy, Justice Souter)
The held that star decisis required upholding Roe's essential holding: recognition of a woman's right to an abortion before fetal viability without state interference; the state's right to restrict abortion after viability, with exceptions for endangering the woman's health or life; and the principle that the state had a legitimate interest from the outset of pregnancy to protect the health of the woman and the life of the fetus that may become a child.
The Court (hereinafter referred to as Justice O'Connor's opinion) felt that the right to terminate a pregnancy is a 'liberty' protected against state interference under the Due Process Clause of the 14th Amendment. They felt that neither the Bill of Rights nor the practices of the states at the time of enactment of the 14th Amendment marked the outer limits of the sphere of 'liberty.'
Justice O'Connor's opinion then turned to stare decisis - weighing the ideal rule of law and the costs of reaffirming and overruling. Finding that a women's ability to participate equally in economic and social life is facilitated by their right to abortion. They admit that later abortions are safer to a pregnant woman than they once were, and that viability is somewhat sooner; but that neither of these reaches a basis to overturn Roe's underpinning. They feel the State's interest in fetal life begins at viability, whenever that occurs. Overruling Roe's essential holding 'would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy and to the Nation's commitment to the rule of law.'
Justice O'Connor's opinion ruled that if the law placed an undue burden in the path of a woman seeking abortion before the fetus was viable, then it was an invalid law. They rejected Roe's trimester framework, and felt that the State may make measures to ensure the choice to abort was an informed choice. Health and safety measures could be regulated as long as it did not present a substantial obstacle. And they affirmed that post viability the State could regulate abortion except where necessary to preserve the life or health of the mother. Justice O'Connor's opinion agreed with the lower courts ruling in finding the notice to the husband was unconstitutional, and that all other parts of the law being challenged were constitutional.
The requirement of informed consent, including 'truthful, non-misleading information about the nature of the abortion procedure, the attendant health risks and those of childbirth, and the probable gestation age of the fetus, were constitutional regulations. And requiring 24 hours between receipt of the information and performance of the abortion is not an undue burden. Furthermore, one parent consent or judicial bypass were deemed constitutional.
Justice Blackmun felt that all of the laws being challenged were unconstitutional under the strict scrutiny standard of review.
Chief Justice Rehnquist, Justice White, Justice Scalia, and Justice Thomas opinion (hereinafter known as Chief Justice Rehnquist's opinion)
Chief Justice Rehnquist's opinion stated that the review of other regulations under abortion were creating uncertainty and that they had increasingly placed greater restrictions upon the States. The last three decisions; Ohio v Akron Center for Reproductive Health, Hodgson v Minnesota, and Webster v Reproductive Health Services, have not had a majority opinion.
Furthermore, Chief Justice Rehnquist's opinion stated the Roe court 'reached too far' analogizing the right to abort to the rights in Pierce v Society of Sisters, Meyer v Nebraska, Loving v Virginia, and Griswold v Connecticut; and deeming the right to an abortion to be 'fundamental'. None of the other case decisions 'endorsed an all-encompassing right of privacy'. Since abortion terminated potential life the decision must be recognized as sui generis. The earlier cases fell under personal or family privacy and autonomy. Since American historical traditions - found in English common law and American abortion statutes - did not support the view that the 'right to terminate one's pregnancy is fundamental'. So laws regarding abortion need not be subjected to strict scrutiny.
Chief Justice Rehnquist's opinion stated that the undue burden standard was not simple or easily applied. It lent itself to subjective, unguided determinations regarding the regulations. Chief Justice Rehnquist's opinion stated it did nothing more than allow the Court, under the guise of the Constitution, to impart it's own preferences on the States. Instead the Court in Webster saw abortion under a form of liberty protected by the Due Process Clause, and allowed States to regulate abortion procedures in aways rationally related to a legitimate state interest.
Informed consent is not overly restrictive, and having a medical doctor provide that information and alternatives may be better than a counselor. The state can protect potential life by ensuring that the woman understands the risks, the alternatives, the availability of child support and state-funded alternatives. Even if that creates some uncertainty and persuades some women to forgo abortions, that only shows it might make a difference and therefore is relevant to an informed choice. This same reasoning contradicts the Court's prior ruling that a 24 hour waiting period creates an undue burden. It merely ensures that the decision to abortion is well considered, and rationally protects the State's interest in maternal health and an unborn life. While upholding parental consent is consistent with the courts previous decisions.
A requirement that a report is filed on each abortion furthers a state's interest in advancing medical knowledge concerning maternal health and prenatal life, permits gathering of statistical information, and ensures compliance with other laws.
All fundamental rights that fall under liberty are protected by the Due Process Clause of the 14th Amendment. The rights listed in the Bill of Rights, the first 8 amendments, are protected from state interference by the Due Process Clause. But Justice O'Connor's opinion stated it encompassed more than the rights enumerated. Stating that interracial marriage was illegal in the 19th century but the Court has rightly protected that. Justice O'Connor's opinion viewed it as basic decisions on family and parenthood, and that these basic decisions were protected from state interference. Chief Justice Rehnquist opinion seems to state that Justice O'Connor's opinion is moving toward the balancing of liberty and the demands of organized society. Justice O'Connor's opinion goes on to mention looking at traditions as well as the traditions from which the country has broken. Chief Justice Rehnquist's opinion state that this seems to say that liberties would change over time, and as such, would violate the stare decisis basis that Justice O'Connor's opinion is claiming to preserve. Not to mention changes would seem to be more of the legislatures realm, as long as they are not violated rights that the constitution is meant to protect.
Justice O'Connor's opinion states that the court has found that the private realm of family life is where the state cannot enter and interfere. Further stating that the heart of liberty includes the right to define the mystery of human life, however abortion is a unique act. Since it is an act with consequences for others. It not only affects the woman, but the party performing the procedure or assisted in it; for spouses, family and society that has knowledge of them; and for the life or potential life that is aborted. Justice O'Connor's opinion views it as similar in character as the decision to use contraception, but an extension of that right. However Justice O'Connor's opinion were in agreement that States might act to protect pre-natal life, and that those interest may outweigh a woman's choice to terminate her pregnancy.
Justice O'Connor's opinion admitted that stare decisis was important until a 'prior judicial ruling should come to be seen so clearly as error that its enforcement was for that very reason doomed.' Chief Justice Rehnquist's opinion - Has the rule proven to be intolerable in defying practical workability; would it lend a hardship to the consequences of overruling and add inequity; is it an abandoned doctrine; or have the facts changed so as to rob its application. Justice O'Connor's opinion stated that the rule of Roe was still enforceable via judicial intervention, reliance upon the rule seemed to be large. Chief Justice Rehnquist's opinion - Although would that not also apply to those setting rules for when one could not have an abortion, which seems to be an area that is continually pushed in laws. Some states have decreased the time during which an abortion is legal but some have significantly increased it. It would seem those states that expanded the right have proclaimed that they are not intent on protecting pre-natal life, seeming to fly directly in the face of Roe v Wade's findings. Justice O'Connor's opinion found that women participating equally in economic and social life has been facilitated by their right to abortion.
Justice O'Connor's opinion felt Roe stood for personal autonomy and bodily integrity, limiting the governmental power to mandate medical treatment or bar its rejection. This would seem to say if Roe stood, at least under this premise, that mandating vaccines would be forbidden. In fact any mandate to have a vaccine or to even test would be in violation of the bodily integrity that is protected under the constitution. Yet Justice O'Connor's opinion felt that any error in Roe is unlikely to have 'serious ramifications in future cases'.
Justice O'Connor's opinion did look to the trimester framework of Roe since health care made later abortions safe for mothers and neonatal care advanced viability to an earlier point. However Justice O'Connor's opinion felt that viability marked the earliest point at which a State could ban abortions to protect it's interest in fetal life. [Some still claim the 23-24 weeks that Casey stated, but others claim 22 weeks. While still others claim that survivability is based upon other factors, such as fetal weight, sex, care. Those weighing 1.3 lbs have a higher chance of survival, and girls generally survive when born sooner than boys. And taking magnesium during pregnancy can increase the chance of survival. Based upon my research viability seems to differ between pregnancies and there is no bright line rule that can be followed. Furthermore, advances in medicine will, more likely than not, modify this over time.]
Justice O'Connor's opinion then goes on to discuss 2 separate lines of cases. The first beginning with Lochner v New York, and its imposition of limitations on legislations limiting economic autonomy in favor of health and welfare regulation. This line of reasoning was later overturned in favor of laws protecting health and welfare and moving away from laissez-faire. The second begins with Plessy v Ferguson, and deals with separate but equal rule. Later in Brown v Board of Education the court overrule segregation find separate was not equal. In the words of the Court, '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.' Here Justice O'Connor's opinion felt that neither the factual basis of Roe nor their understanding of it had changed, and therefore the basis of Roe should be affirmed.
The Courts decisions were made to be grounded in principle, not compromises with social and political pressures. Justice O'Connor's opinion goes on to say that Justices may be able to understand principles that eluded their predecessors and justify departures from existing decisions. And further go on to state that to overrule Roe's essential holding to address error, if there were any, would cost the court profound and unnecessary damage to it's legitimacy. The fact that the Court spend such a significant amount of time addressing the concerns of the Court's legitimacy being weakened by overturning Roe, and the fact that Justice O'Connor's opinion only had a plurality agree in the final opinion concerns me. It makes me wonder if the Court were not more conflicted over abortion being a constitutionally protected right, and fell to stare decisis to confirm Roe and, potentially, save the Court.
Justice O'Connor's opinion goes on to set viability as the line between when a woman's liberty is protected and when the state's interest in life wins out. And then says they are not looking at the State's interest before viability since the Roe court had already done so. Justice O'Connor's opinion rejected the trimester framework set out in Roe as being too rigid and sometimes contradicting the State's interest. Justice O'Connor's opinion stated the State may enact rules 'designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term, and that there are procedures and institutions to allow adoption of unwanted children as well as a certain degree of state assistance if the mother chooses to raise the child herself.' Contemplating the consequences for the fetus, and the profound and lasting meaning of the decision does not violate Roe and could be consistent with the State's interest. Not all laws that make the exercise of a liberty more difficult make it an infringement on that right. They state as an example that States are granted substantial flexibility in establishing the framework for voting under Anderson v Calabrese and Norman v Reed. Merely making it more difficult or more expensive is not sufficient as to claim it to be invalid.
Justice O'Connor's opinion found that the complete barring of any regulations as to the first trimester completely ignored the State's interest in protecting the health of the woman and the potential life. Instead Justice O'Connor's opinion stated that an undue burden standard should be applied. Justice O'Connor's opinion states that any regulation prior to viability should be to inform the woman in her choice but not hinder it. The woman's right to make the final decision but not the right to be fully insulated from others in so doing.
Justice O'Connor's opinion then looked to the specifics of the Pennsylvania laws in question. They found the medical emergency law to be consistent with allowing for abortion later should the woman's health be endangered. The next section dealt with providing information to those seeking abortion, having them consent in writing to the abortion and requiring a 24 hour wait between the consult and the actual abortion. Here Justice O'Connor's opinion overruled two prior decisions in Akron I and Thornburgh v American College of Obstetricians and Gynecologists. Those cases found it a constitutional violation to require 'truthful, non-misleading information about the nature of the procedure, the attendant health risks and those of childbirth, and the probable gestation age of the fetus.' The Casey court found that to be inconsistent with Roe's acknowledgement of the importance of the state's interest. Justice O'Connor's opinion further found that the effect on the fetus was relevant, just as the health of a kidney donor is relevant in a kidney transplant procedure. The fact that information may cause the woman to choose childbirth over abortion does not make it an undue burden. And requiring a doctor advise a patient of the availability of information, and provide it when requested, is no different that providing information about any medical procedure. Justice O'Connor's opinion found that a physician's First Amendment rights to not provide patients with risks of abortion and/or childbirth as required by the state because they are only implicated as to the practice of medicine, and are subject to reasonable licensing and regulation. Justice O'Connor's opinion further found that a waiting period for making a decision will make it more informed and deliberate, and that 24 hours did not create an undue burden. This was true even though some may have to travel further and the costs may increase. Again these things did make it a burden but not one undue burden in Justice O'Connor's opinion.
Justice O'Connor's opinion went on to state that Roe did not provide for abortion on demand, but rather a right protected to decide to terminate a pregnancy without undue interference by the State.
Justice O'Connor's opinion did find the provision requiring acknowledging that a spouse was informed to be an undue burden. Much of this came down to the statistics of abuse and the reluctance of woman to acknowledge and/or report the abuse. Thereby making a woman notify a husband would create a barrier to some, albeit a very small percentage, women to get an abortion. So this requirement was found unconstitutional. Justice O'Connor's opinion found that to not be conflicting with Belloitti v Baird and Planned Parenthood of Central Mo. v Danforth, where in it was found that minors consulting with a parent to be constitutional.
There is also a portion of the statute at issue here that requires reports from every abortion facility that performs abortions, and in the case of a state-funded institute the information would become publicly available upon request. That is the name of the facility and those that own said facility. The report must further provide the medical doctor, the woman's age, the number of prior pregnancies and abortions she has had, the fetus gestational age, type of procedure performed, date, any pre-existing medical conditions that would complicate pregnancy, medical complications with the abortion, weight of the aborted fetus, and whether the woman was married. While the general information might become public, the name of the woman having the abortion would not. Justice O'Connor's opinion found that these were 'reasonably directed to the preservation of maternal health' and 'properly respected the patient's confidentiality'.
Justice Stevens, concurring in part and dissenting in part.
Stating that the central holding in Roe has been around for almost 2 decades and it was a 'natural sequence to the protection of individual liberty established in Griswold v Connecticut'. He felt there would be enormous societal costs if Roe were overruled and that it is an integral part of understanding the concept of liberty and equality of men and women. He did join in affirmation of the state's post-viability right to proscribe abortion except to preserve the life or health of the mother. While also finding that the protections of the Fourteenth Amendment did not apply to the unborn, finding it not a termination of life to abort. He did not agree with the stated contradiction of the state's interest and the trimester framework.
Justice Stevens went on to state that the interest must be secular and may be in the interest of potential human life not treating the fetus as a person. This interest is supported by humanitarian and pragmatic concerns. Further finding that third trimester abortions are viewed as offensive by some and that the state has an interest in minimizing this offense. He even found that the State may have a broader interest in expanding the population. On the other hand, Justice Stevens' viewed a woman's interest in liberty to include the right to control one's person. He agrees with the balancing of the state's interest in potential life and the woman's liberty interest. He even goes so far as to say that a state may provide funding for childbirth, create alternatives to abortion, and espouse the virtues of family. Thereby implying they may choose to not fund abortion. However, Justice Stevens disagreed with the majority in that he found the requirement to notify the women of the range of materials available concerning childbirth and the options involved therein were unconstitutional. He also questioned the 24 hour waiting period. He felt that this unduly preferenced the state's choice of childbirth over abortion, and he finds that it provides no positive purpose other than to possibly reduce the number of abortions.
Justice Stevens also felt that providing gestational age to be useless since 90% of abortions were performed in the first trimester.
Justice Blackmun, concurring in part, concurring in judgment in part and dissenting in part.
Justice Blackmun felt that this opinion brought light to the flickering flame that was the reproductive freedom of woman. He agreed that the essential holding of Roe should be affirmed. He felt that the Fourteenth Amendment should not be focused on the state's practices at the time of it's passage, but that liberty included the right of the individual to be 'free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child'. And he finds that the viability line from Roe is the point at which the balance of interests tips. Again finding stare decisis because the 'serious inequity to those who have relied upon it or the significant damage to the stability of the society governed by the rule'. While Justice Blackmun feels that the areas beyond notice to spouse should have been invalidated, he is pleased with the possibility that regulations may be shown to impose an unconstitutional burden. He feels that the lack of evidence is more the reason for them being upheld, and that in the future more information will be presented which allows those to be struck down as well.
Justice Blackmun does however feel that counseling, a 24 hour wait, informed parental consent, and reporting of information should be invalidated now. He stated that restrictions on abortion violate a woman's right of privacy (something that many use to validate abortion but that a majority of the court never stated as the basis for abortion). Further stating that restricting abortion, the 'State conscripts women's bodies into its service, forcing women to continue their pregnancies, suffer the pains of childbirth, and in most instances, provide years of maternal care. By doing so the states are violating the equal protection clause.
The State's interest in protecting the health/life of the mother overrides the woman's right to privacy at the end of the first trimester when abortion and childbirth mortality rates are close. The State's interest in potential life occurs post viability. He felt that trimester framework matched well with these points and that it was easier to administer than the undue burden standard adopted. He addressed the concerns over the trimester framework looking much to regulatory. This is compared to the First Amendment protection of allowing release time from public school to allow students to attend religious instructions. [I'd explain this further but I didn't follow it well enough to expound more.]
As to the criticism of the trimester framework itself, Justice Blackmun feels there is no challenge to Roe stating that abortion is the termination of life entitled to protection under the 14th Amendment, and that therefore a state's interesting in protecting fetal life is not grounded in the Constitution but in humanitarian concerns. So he views it as a balance between the woman's constitutional liberties and the state's interest in potential human life. And since viability is likened to quickening, he feels that provides a good point at which the state's interest overcome the woman's constitutional liberties. He finds the state's enactment of laws pre-viability to ensure the woman is informed to make the decision but not an attempt to persuade the woman to choose childbirth is reasonable. And he felt that the judgment should remain on the trimester framework and that strict scrutiny should be applied here and in further matters. The application of strict scrutiny would invalidated all of the laws challenged here, and further support prior similar cases under stare decisis.
Justice Blackmun then goes on to discuss the Chief Justice Rehnquist's findings that do not consider the effects of childbirth and motherhood on the life of a woman. And he finds that there is a narrow conception of individual liberty leading to the standard of review set out in Webster. Justice Blackmun dislikes Chief Justice Rehnquist's view that there be evidence to support the majorities opinion and that a large fraction of women be included.
Chief Justice Rehnquist, Justice White, Justice Scalia, and Justice Thomas concurring in part and dissenting in part. (hereinafter known as Chief Justice Rehnquist's opinion)
Chief Justice Rehnquist's opinion stated Roe was wrongly decided and should be overruled consistently with the traditional approach to stare decisis in constitutional cases. And Chief Justice Rehnquist's opinion would adopt the approach of the plurality in Webster v Reproductive Health Services, and uphold all of the challenged provisions of the Pennsylvania statute.
The Third Circuit viewed this as a regulation of abortion and not a direct challenge to Roe. However, in an attempt to settle on the standard of review, the court was faced with a myrade of abortion jurisprudence decisions. Justice O'Connor's opinion eventually settled on the undue burden test set out in Hodgson v Minnesota. It was also the narrowest ground upon which an abortion regulation was upheld. Here the majority agreed mostly on the result but not on the rationale for the decision.
Petitioners in this case ask the court to uphold Roe, but Roe dealt with a Texas statutue that made it a crime to procure an abortion. The Pennsylvania statutes here regulate abortion but does not prohibit it. The Court of Appeals in this matter felt that the post-Roe decisions were confusing and uncertain, thereby warranting a reexamination of the line of cases. Unfortunately the outcome of this matter does not clarify the outcome for courts in the future. Further setting out an undue burden standard requires the court to review all types of abortion regulations despite the court's lack of power to do so Constitutionally.
In Doe v Bolton, the court concluded that Roe does not acknowledge an absolute constitutional right to abortion. This would lend to the idea that a state may regulate abortion, yet many cases found this to not be true. Initially in H.L. v Matheson the court found a requirement of a minor to notify parents before an abortion to be a valid regulation. Then later the Court felt that it was dependent on whether notice to one or both parents was required. Apparently the court had found the Constitution okay with notice to one parent but not to two, unless there was a judicial bypass to this requirement. And parental consent was treated more harshly than notice. In Planned Parenthood of Central Mo v Danforth, consent of a parent under a Missouri regulation was prohibited; and again in Bellotti v Baird a similar statutes in Massachusetts was struck down. But parental consent was constitutional if the minor could show she was mature enough to decide or that it was in her best interest. But the judicial bypass procedure had to meet strict grounds to be upheld.
The Court when Roe was decided did not address a father's rights because it was not involved in the case at hand. But in Danforth a notice to the spouse was considered unconstitutional based upon the holding in Roe.
Informed and well-considered decisions are important and considered Constitutional under Danforth. However, under Akron the court held regulation that provided status of pregnancy, development of the fetus, possible viability date, information concerning abortion complications that may occur, and that agencies were available to provide assistance regarding adoption and childbirth were not. In Thornburgh a statute that provided the risks of abortion and that assistance was available should she proceed with the pregnancy was also struck down. And a 24 hour wait was even struck down in Akron. While Roe allowed abortion regulations set out by the state, apparently a requirement that abortions be performed in hospitals was not considered constitutional.
In Colautti v Franklin the court struck down a statute that set out a means of determining viability, making it clear that the trimester framework included only what the court determined as viability. (Honestly in Roe I understood it to mean that what was accepted by the medical profession.) And in Thornburgh the requirement of a second physician being present to safe the life of the post-viably aborted fetus was deemed unconstitutional. In Akron the court even struck down a statute that required the remains in an abortion be disposed of in a humane and sanitary manner.
Chief Justice Rehnquist's opinion states that the Court was expanding Roe and imposing greater restrictions upon the states. The court itself had become more divided, such that the 3 most recent cases prior to Casey did not command a majority opinion. Ohio v Akron Center for Reproductive Health; Hodgson v Minnesota; Webster v Reproductive Health Services. This created issues for the Court of Appeals. Certainly following Marks v United States were it was concluded that Webster and Hodgson threw out strict scrutiny and replaced it with undue burden standard. This confusion means the court needs to review its prior rulings because the decisions are creating uncertainty and failing to provide clear guidance; and the chance at legislation correcting it seems impossible.
The liberty interest of the Due Process Clause of the 14th Amendment is fundamental if it is 'implicit in the concept of ordered liberty'. Palko (1973) Previously in Snyder (1934) it was viewed as a 'principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' In Pierce (1925) it included the right of a parent to send a child to a private school; in Meyer (1923) it included the right to teach a foreign language in parochial school; in Loving (1967) it included the right to marry; in Skinner (1942) it included the right to procreate; in Griswold (1965) and Eisenstadt (1972) it included the right to use contraceptives. But all of those cases state it is not an all-encompassing right to privacy. In Roe the court read the guarantee of personal privacy broadly to include abortion, even while acknowledging the potential life and the state's interest in it. Chief Justice Rehnquist's opinion then goes on to discuss the laws at the time of the passage of the 14th Amendment, holding that abortion was prohibited or restricted in at least 28 of the 37 states and 8 territories. When Roe was decided a majority of the states prohibited abortion unless it was necessary to preserve the life or health of the mother. The justices then stating again that Roe was incorrect in classifying a 'woman's decision to terminate her pregnancy as a fundamental right that could be abridged only in a manner which withstood strict scrutiny.' This was previously stated in Bowers v Hardwick (1986).
Chief Justice Rehnquist's opinion than goes on to address Justice O'Connor's opinion. Justice O'Connor's opinion never says that Roe was correct in the original matter, but instead focuses on stare decisis. But in doing so, they reject Roe's decision of a right to abortion being a fundamental right. They then go on to reject the strict scrutiny standard under Roe, which was based under a right granted in the constitution. And finally the majority reject the trimester framework set out in Roe. The joint opinion does not adhere to stare decisis; to abide by decided cases. They tear down Roe and revise it in it's entirety, leaving a right to abortion that is not claimed as fundamental.
This further overrules matters decided in Akron v Akron Center for Reproductive Health and Thornburgh v American College of Obstetricians and Gynecologists as they were decided under strict scrutiny and not under undue burden standard that is set out here.
'When it becomes clear that a prior constitutional interpretation is unsound we are obliged to reexamine the question.' West Virginia State Bd. of Education v Barnette (1943), Erie R. Co. v Tompkins (1938). Justice O'Connor's opinion claims the factual underpinnings of Roe remain the same and are no weaker than they were when Roe was decided. The basic facts that 'women become pregnant, there is a point somewhere, depending on medical technology, where a fetus becomes viable, and women give birth to children.' While those facts continue that is not a reason to continue to make a decision in the same manner if it were not based upon the constitution originally. But the joint opinion finds that the state's interest in maternal health and the protection of potential life were not properly recognized in Roe. Yet those basic facts remain the same when Casey was decided as they were when Roe was decided.
While Justice O'Connor's opinion relies heavily upon many relying on the Roe decisions, it has no qualms at tossing out the trimester framework which many may have been relying upon. Justice O'Connor's opinion relies upon the notion that a right to abortion is what has brought women to the economic and social developments that existed at the time of Casey, but fail to explain what they mean. Perhaps women have obtain higher education and managed to compete in the market place with man, and society has come to recognize their abilities to fill positions previously reserved for men based upon their own drive. Reliance seems a poor reason for remaining true to a court decision. The 'separate but equal' doctrine lasted 58 years after Plessy, while Roe's holding at the time of Casey was a mere 19 years. Lochner's protection of contractual freedom lasted 32 years. The fact that generation(s) had relied upon Plessy or Lochner did not prevent the Court from correcting their errors.
Chief Justice Rehnquist continues by contending that Justice O'Connor's opinion states that because times surrounding the Roe decision remain contentious the ruling must be upheld, regardless of whether it is correct, merely to ensure that court does not appear to fold beneath political pressures. It would seem then that an incorrect decision on the part of the court must be upheld until opposition to the decision has dissolved. The first issue here is whether something is intensely divisive is a subjective view point, and besides the Court is suppose to ignore public opinion and criticism when making decisions. In 21 years, the Court had overruled in whole or in part 34 prior constitutional decisions. Oddly the majority leaned on Lockner and Plessy for remaining steadfast to Roe, while in reality those cases stand for the Court overturning past precedent and correcting error. Public protest should neither ensure the Court remaining true to a past ruling nor that it be overturned. In fact, at the time West Coast Hotel, which overruled Lochner, was decided; the court was facing the consideration that President Franklin Roosevelt add 6 new members to the Court in the event that those over 70 did not choose to retire. And the Court was facing protests if it did overturn Lochner. But the majority claims that new lessons were learned after Plessy and Lochner, making it easier to overturn those decisions.
In fact Justice O'Connor's opinion implied that people saw the failure of upholding minimum wage statutes as the cause of the Great Depression. But the Court felt that liberty under the Due Process Clause was protecting the right to make a contract, thus the holding in Lochner. Lochner was not overruled because it was decided upon a failed economic view, merely the court in West Coast Hotel felt that the Constitution does not speak of freedom of contract.
Even Justice O'Connor's opinion here holds that Brown's overturning of Plessy 'separate but equal' doctrine was correct. But upholding Roe would more closely match upholding Plessy to ensure the legitimacy of the Court. They claim that by the time of Brown the Court could see that segregation had the effect of treating one race as inferior to another. But Justice Harlan in his dissent in Plessy stated that the law at issue 'puts the brand of servitude and degradation upon a large class of our fellow citizens, our equals before the law'. So the same arguments seems to have been made in Plessy as were later made in Brown, and the difference was that the Court recognized that the 14th Amendment did not permit racial segregation. It is merely a judgment that the Equal Protection Clause does not permit racial segregation.
The judicial branch derives its legitimacy from deciding in its best lights whether legislation from popular branches of government comport with the Constitution. The doctrine of stare decisis is adjunct to this and should not be subject to public opinions. The majority finds that overturning Roe would appear to be surrendering to political pressure but fail to see that there are two sides to any controversy, and therefore upholding a ruling could be seen in the same manner. If the court instead views legitimacy as being faithful to the Constitution regardless of public opinion, then self-engendered difficulties disappear. 'Strong and often misguided criticism of a decision should not render the decision immune from reconsideration, lest a fetish for legitimacy penalize freedom of expression.'
While Chief Justice Rehnquist's opinion disagree with the holding on Roe, they agree that it created a fundamental right standard under which a state regulation must survive strict scrutiny review. In this matter, Justice O'Connor's opinion adopted an undue burden standard, newly created for a constitutional basis right. It creates a very subjective standard whereupon future justices will use their personal views to make 'constitutional decisions'. In this case alone the 24 hour waiting period is viewed as not a substantial obstacle just even though it is a particular burden to some. But the notice to a spouse is viewed as a substantial obstacle due to a large fraction of cases fall into it being a burden. And yet parental consent is viewed as not being a substantial obstacle, yet all minors would be faced with it. Thus creating a standard of review wherein the Court will impart its own preferences upon the States.
Chief Justice Rehnquist's opinion felt the correct analysis was found in the plurality of Webster, where in a 'woman's interest in having an abortion is a form of liberty protected by the Due Process Clause, but States may regulate abortion procedures in ways related to a legitimate state interest.'
The Act in question provides the following: a physician must inform the woman of the risk involved and the alternatives available; the fetus' probable gestational age; and the medical risks involved in carrying the pregnancy to term. It further requires notice to the woman that there are free materials describing the stages of fetal development and listing abortion alternatives; that medical assistance benefits may be available for prenatal, childbirth, and neonatal care; and that the father is liable for child support. There is a 24 hour wait after this information is provided and when the abortion may be performed. This is rationally related to the State's interest in being fully informed so as to be able to consent.
Requiring a physician provide the medical risks ensures the State's interest in the informed consent, as well as the health and safety of the woman and their interest in the unborn potential life. And state's already provide regulation around who may carry out different aspects of medical care, so requiring a physician over a counselor is not outside this realm. Furthermore a physician is better qualified than a counselor to answer questions about the medical aspects.
The provision that any of the above might persuade some women to forgo abortions 'does not lead to the conclusion that the Constitution forbids the provision of the information.' That it might shows that it is relevant in the decision, and therefore relevant to informed consent. ['The ostensible objective in Roe v Wade is not maximizing the number of abortions, but maximizing choice.'] While the Court in Thornbuge struck down a similar regulation, that regulation would have survived traditional review standards for surgical procedures, other than abortion.
Since the 24 hour waiting period does not apply in cases of medical emergencies, the mere imposition of a burden does not prohibit the right. Again it merely ensures informed consent by ensuring consideration after providing the information.
The parental consent for a minor can be overridden by judicial review. The matter must be decided by the court within 3 days of application, and including appeal, the matter cannot take more than 8 business days. Further it does not apply in cases of medical emergency. Prior cases with similar regulations were upheld, therefore there is no basis for not upholding this one. Under lighter scrutiny it clearly passes as a state has a legitimate interest in the welfare of its young citizens.
The Act at question also requires spousal notification, wherein the woman signs a statement indicating she notified the husband, should the husband be the father. There are exceptions if the husband cannot be located or if there were spousal sexual abuse or if notification would likely result in bodily injury. And there is always the medical emergency exemption. The Act does not require spousal consent, merely notification. The District Court in this case found that some women may be prevented from having an abortion due to this requirement. Because this challenge is being presented as a facial challenge, they must 'show that no set of circumstances exists under which the provision would be valid.' The question is does this notice requirement rationally further a state's legitimate interest. A husband has an interest in procreation within marriage and in the potential life. And the state has an interest in protecting the father's interest and in protecting the potential life. Furthermore the State has a legitimate interest in the integrity of the marital relationship, and it was recognized in Planned Parenthood of Central Mo v Danforth. Spousal notice is a rational attempt to promote truthfulness and communication. The Court finds it unrealistic that every marriage is either so perfect that the communication will occur or so imperfect that the husband will react violently and selfishly, as the petitioners claim. Whether it is a wise decision or not, the legislature made the decision, and presumably weighing the options and concluding it was better to require the acknowledgement of notice to a spouse. 'It is not the mission of this Court or any other to decide whether the balancing of competing interests ... is wise social policy.' Harris v McRae
The Act in question also contains the following reporting requirements: the identity of the performing and referring physician; the fetus gestational age; the basis for a medical emergency if one existed; but not the identity of the woman. The District Court found the reports were completely confidential. These reports meet the State's legitimate interest in 'advancing the state of medical knowledge concerning maternal health and prenatal life' and ensuring compliance with the law. A further requirement is that each facility provide their name/address, along with any affiliated organizations. The reports must be filed quarterly and state the total number of abortions performed, broken down by trimester. That information would be available to the public if the facility received public funding. Petitioners do not challenge the reporting, but merely the availability of the information to the public upon request. Records relating to spending of public funding are generally available upon request in Pennsylvania, and there is a legitimate public interest in advising taxpayers who the funds are benefitting and what services are provided with those funds.
The final portion challenge is the medical emergency exception. It states that a medical emergency is a 'condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of major bodily function.' The challenge claims this does not cover preeclampsia, inevitable abortion, and premature ruptured membrane. The District Court agreed, but the Appellate court overturned. The Appellate court stated that all three conditions present risk of serious injury or death if an abortion is not performed. Chief Justice Rehnquist's opinion agreed with the Appellate Court and found the definition did encompass those conditions.
While Chief Justice Rehnquist's opinion stated all of the Act complied with the Constitution, they did not necessarily state that they agreed with the regulations. Whether or not it is the best public policy is for the people of the state of Pennsylvania to decide.
Justice Scalia, with whom the Chief Justice, Justice White and Justice Thomas join. Concurring in part and dissenting in part. (hereinafter known as Justice Scalia's opinion)
Justice Scalia began with restating his opinion in Webster v Reproductive Health Services (1989) and Ohio v Akron Center for Reproductive Health (1990), in that states may provide abortion-on-demand, but that the Constitution does not require them to do so. He feels that abortion permissibility, as well as limitations thereto, 'are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.' A state's choice between two different positions upon which reasonable people may disagree is constitutional even if it intrudes upon a 'liberty'. There are laws against bigamy which intrude upon men and women's liberty to marry and live with one another. But bigamy is not a liberty protected by the Constitution. The power of a woman to abort an unborn child is a 'liberty' in an absolute sense and it is even a liberty of great importance to many women; but it is not a liberty that is protected by the Constitution. This is based upon the Constitution's lack of statement regarding abortion and the longstanding traditions of American society permitting it to be legally proscribed.
He states that Roe was wrong on it's face and that this needs to be acknowledged. The 'reasoned judgment' of the majority, in his opinion, should see this and yet they focus on stare decisis. The basis for abortion is in 'liberty because it is among a person's most basic decisions; it involves a most intimate and personal choice; it is central to personal dignity and autonomy; it originates within the zone of conscience and belief; it is too intimate and personal for state interference; it reflects intimate views of a deep, personal character; it involves intimate relationships, and notions of personal integrity and bodily integrity; and it concerns a particularly important decision.' This seems to encompass a great may forms of conduct that the Court has not entitled constitutional protection. In fact some of those have been criminalized. They apply to 'homosexual sodomy, polygamy, adult incest, and suicide.' While I personally agree that there are many things the government should remain out of, I do not agree that they are necessarily protected by the U.S. Constitution.
Justice Scalia's opinion here states that the clarification of undue burden do no more than show how inherently manipulable and hopeless this standard is. It is dependent on the view of the justices at the time of a hearing and not a standard upon which the test of time will survive. The undue burden test cannot apply to other rights at the primary opinion states. If that were true than a 'purchaser of a religious book' could be forced to endure a 24 hour waiting period or pay an additional nominal tax. Because they do not impose a substantial obstacle, yet that is not what we believe to be true of First Amendment rights. The undue burden standard is merely applicable to abortion in order to preserve some 'judicial foothold in this ill-gotten territory.' This standard originally presented by Justice O'Connor in Akron stated an undue burden is one that imposes an 'absolute obstacle or severe limitation on the abortion decisions.' Previously the state's interest in protecting potential life was viewed as a compelling interest, but here it is downgraded to a substantial or profound interest. And viability has become a demarcation of critical fact, where previously it was viewed as an arbitrary line.
Justice O'Connor's opinion relies heavily upon the facts from the District Court, as it should. But there is no explanation as to what specifically in the facts supports the reasoning that it is or is not an undue burden. Merely statements of the facts and that it is or is not an undue burden; along with the fact that some could become an undue burden but no further clarification. This, in my opinion, is much like the pornography ruling that said I'll recognize it when I see it. Really so it becomes 100% dependent on who views the facts and how those facts are then presented at the time and again later to an appellate court. This does not seem to be a Constitutional protected view. [While I personally feel that too many items have been tossed into the protections of the Constitution, not being there does not equate to no protection at all. It merely adjusts the level at which they are protected. Those protected through the Constitution require that any regulation to them meet strict scrutiny review.]
Justice O'Connor's opinion states a law is undue if a significant number of women are kept from obtaining an abortion. So any law is okay as long as a significant portion of women can get an abortion. No idea what significant is nor how it is determined if enough women are able to have one. Justice Scalia's opinion then goes on to talk about what was not retained from Roe: Providing truthful information about abortion before giving written consent under Roe would be unconstitutional, but here it is constitutional. Requiring a doctor provide the information would be unconstitutional under Roe, but here it is constitutional. Requiring a 24 hour waiting period would be unconstitutional under Roe, but here it is constitutional. Requiring detailed reports that includes demographics would be unconstitutional under Roe, but here it is constitutional.
Justice O'Connor's opinion here states that Roe resolved a deeply divisive issue but the Justices here do not agree. Nor do I {Justice Scalia}. Justice Scalia's opinion felt it instead elevated it to a national level where 'it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying or abortion marches on Congress before Roe v Wade was decided.' Of course, that is not to say there was not profound disagreement on the matter. But this disagreement was being worked out at a state level. While the states varied in how they resolved those matters, each state did not have the same degree of balancing as the nation did. And a state-by-state resolution would have been more stable in Justice Scalia's opinion. Roe's mandate meant that no compromise was possible in the future, and that the issue needed to be resolved uniformly at the national level. 'Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since.'
Justice Scalia's opinion is distressed that there are 'immense political pressure directed to the Court in marches, mail, protests aimed at inducing us to change our opinions. ' 'How upsetting it is that so many of our citizens (good people, not lawless ones, on both sides of this abortion issue, and on various sides of other issues as well) think that we Justices should properly take into account their views, as though we were engaged not in ascertaining an objective law but in determining some kind of social consensus.' If the Courts process is to primarily make value judgments rather than adjudicating the constitution; if the Court ignores long and clear tradition clarifying an ambiguous text; then the people's attitude toward the court can be quite different moving forward. If the liberties protected by the Constitution are undefined and unbounded, as the Court now claims, than people should protest to ensure that their values are instituted and not those of the Court's. Rather than resolving the issue, 'by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.'
Remember 11 of the 15 justices that have confronted Roe, sided with the support of Roe in the past, and 4 of them remain on the Court today and have reached a different opinion.
Webpage created by and for J.B. Williams, J.D. - all rights reserved