Planned Parenthood v. Casey, 505 U.S. 833 (1992), was a landmark decision of the United States Supreme Court in which the Court upheld the right to have an abortion as established by the "essential holding" of Roe v. Wade (1973) and issued as its "key judgment" the restoration of the undue burden standard when evaluating state-imposed restrictions on that right..
The case arose from a challenge to five provisions of the Pennsylvania Abortion Control Act of 1982, including requirements for a waiting period, spousal notice, and (for minors) parental consent prior to undergoing an abortion procedure. In a plurality opinion jointly written by associate justices Sandra Day O'Connor, Anthony Kennedy, and David Souter, the Supreme Court upheld the "essential holding" of Roe, which was that the Due Process Clause of the Fourteenth Amendment to the United States Constitution protected a woman's right to have an abortion prior to fetal viability.
The Court overturned the Roe trimester framework in favor of a viability analysis, thereby allowing states to implement abortion restrictions that apply during the first trimester of pregnancy. In its "key judgment", the Court overturned Roe strict scrutiny standard of review of a state's abortion restrictions with the undue burden standard, under which abortion restrictions would be unconstitutional when they were enacted for "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." Applying this new standard of review, the Court upheld four provisions of the Pennsylvania law, but invalidated the requirement of spousal notification. Four justices wrote or joined opinions arguing that Roe v. Wade should have been struck down, while two justices wrote opinions favoring the preservation of the higher standard of review for abortion restrictions.
Background In Casey, the plaintiffs challenged five provisions of the Pennsylvania Abortion Control Act of 1982 authored by state Rep. Stephen F. Freind, arguing that the provisions were unconstitutional under Roe v. Wade. The Court in Roe was the first to establish abortion as a fundamental right protected by the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. The majority in Roe further held that women have a privacy interest protecting their right to abortion embedded in the Due Process Clause. The five provisions at issue in Casey are summarized below. § 3205's informed consent — a woman seeking abortion had to give her informed consent prior to the procedure. The doctor had to provide her with specific information at least 24 hours before the procedure was to take place, including information about how the abortion could be detrimental to her health and about the availability of information about the fetus. § 3209's spousal notice — a married woman seeking abortion had to sign a statement declaring that she had notified her husband prior to undergoing the procedure, unless certain exceptions applied. § 3206's parental consent — minors had to get the informed consent of at least one parent or guardian prior to the abortion procedure. Alternatively, minors could seek judicial bypass in lieu of consent. § 3203's medical emergency definition — defining a medical emergency as "[t]hat 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 a major bodily function." §§ 3207(b), 3214(a), and 3214(f)'s reporting requirements — certain reporting and record keeping mandates were imposed 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 to provide an opportunity to overturn Roe since two liberal U.S. Associate Justices, William J. Brennan Jr. and Thurgood Marshall, had been replaced with the George H. W. Bush-appointed Justices David Souter and Clarence Thomas. Both were viewed, in comparison to their predecessors, as ostensible conservatives. This left the Court with eight Republican-appointed justices, five of whom had been appointed by Presidents Ronald Reagan or Bush, both of whom were well known for their opposition to Roe. Finally, the only remaining Democratic appointee was Justice Byron White, who had been one of the two dissenters from the original Roe decision and had stood by his dissent in his subsequent dissenting opinion in Thornburgh v. American College of Obstetricians & Gynecologists saying, "I continue to believe that this venture [the substantive due process right to abortion] has been fundamentally misguided since its inception". At this point, only two of the Justices were obvious supporters of Roe v. Wade: Harry Blackmun, the author of Roe, and John Paul 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 & Gynecologists.
The case was argued by American Civil Liberties Union 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, focusing mainly on how the law could be upheld without overturning Roe, though suggesting Roe be overturned as an alternative means of upholding the law. Upon reaching the Supreme Court, the United States joined the case as an amicus curiae, and U.S. Solicitor General, Ken Starr of the Bush Administration, defended the Act in part by urging the Court to overturn Roe as having been wrongly decided.
District Court's ruling The plaintiffs were five abortion clinics, a class of physicians who provided abortion services, and 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 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 the husband notification was unduly burdensome because it potentially exposed married women to spousal abuse, violence, and economic duress at the hands of their husbands. Then-Circuit Judge Samuel Alito sat on that three-judge appellate panel and dissented from the court's invalidation of that requirement. Thirty-one years later, as a Supreme Court Justice, Alito wrote the opinion in Dobbs v. Jackson Women's Health Organization, which overturned Roe and Casey.
Supreme Court's consideration At the conference of the Justices two days after oral argument, Souter defied expectations, joining Justices Stevens, Blackmun, and Sandra Day O'Connor, who had all dissented three years earlier in Webster v. Reproductive Health Services with regard to that plurality's suggested reconsideration and narrowing of Roe. 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 five contested abortion restrictions and overturning Roe; however, Kennedy changed his mind shortly thereafter, and joined with fellow Reagan-Bush justices O'Connor and Souter to write a plurality opinion that would reaffirm Roe.
Supreme Court's opinions Except for the 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. The plurality opinion jointly written by Justices O'Connor, Kennedy, and Souter was recognized as the principal opinion.S. Ct. Style G. § 10.4 (2016)
O'Connor, Kennedy, and Souter plurality opinion In the 1992 case of Planned Parenthood v. Casey, the authors of the plurality opinion abandoned Roe's strict trimester framework but maintained its central holding that women have a right to have an abortion before viability. Roe had held that statutes regulating abortion must be subject to "strict scrutiny"—the traditional Supreme Court test for impositions upon fundamental Constitutional rights. Casey instead re-adopted the lower, undue burden standard for evaluating state abortion restrictions, but re-emphasized the right to abortion as grounded in the general sense of liberty and privacy protected under the constitution. The authors of the plurality opinion likewise noted the U.S. government's previous challenges to Roe v. Wade and expounded on the concept of "liberty."
Upholding the "essential holding" in Roe
The plurality opinion stated that it was upholding what it called the "essential holding" of Roe. The essential holding consisted of three parts: (1) Women had the right to have an abortion prior to viability and to do so without undue interference from the State; (2) the State could restrict the abortion procedure post-viability, so long as the law contained exceptions for pregnancies which endangered the woman's life or health; and (3) the State had legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.Casey, 505 U.S. at 846. The plurality asserted that the fundamental right to abortion was grounded in the Due Process Clause of the Fourteenth Amendment, and the plurality reiterated what the Court said in Eisenstadt v. Baird: "If 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."
Stare decisis analysis The plurality's opinion included a thorough discussion on the doctrine of stare decisis (respect of precedent), and provided a clear explanation for why the doctrine had to be applied in Casey with regards to Roe. The authors of the plurality opinion emphasized that stare decisis had to apply in Casey because the Roe rule had not been proven intolerable; the rule had become subject "to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation"; the law had not developed in such a way around the rule that left the rule "no more than a remnant of abandoned doctrine"; and the facts had not changed, nor viewed differently, to "rob the old rule of significant application or justification."Casey, 505 U.S. at 854–60. The plurality acknowledged that it was important for the Court to stand by prior decisions, even those decisions some found unpopular, unless there was a change in the fundamental reasoning underpinning the previous decision. The authors of the plurality opinion, making a special note of the precedential value of Roe v. Wade, and specifically how women's lives were changed by that decision, stated, 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.Casey, 505 U.S. at 860.