PLANNED PARENTHOOD OF SOUTHEASTERN PA V.

CASEY
505 U.S. 833 (1992).

Procedural History/Facts
 Pennsylvania Abortion Control Act of 1982 requires that a woman seeking an abortion:
o A) give her informed consent prior to abortion procedure (constitutional)
o B) be provided w/ certain information at least 24 hours before the abortion is
performed (constitutional)
o C) if she is a minor, must obtain informed consent of one of her parents
(constitutional)
 Provides judicial bypass option if minor does not wish or cannot obtain a
parents consent
o D) unless certain exceptions apply, married woman must sign a statement indicating
that she notified her husband of her intended abortion (unconstitutional)
o E) act imposes reporting requirements on facilities that provide abortion services
(constitutional)
 Act exempts compliance w/ three requirements in event of medical emergency.

Issue
To what extent may a state restrict abortion access?

Holding

Reasoning (O’Connor, Kennedy, & Souter)

 PAGE 739-740 FOR SUMMARY  a) court adopts undue burden analysis; b) reject
trimester framework; c) State may enact regulations to further the health/safety of woman
seeking an abortion; d) adoption of undue burden analysis x disturb holding of Roe &
reaffirm holding; e) reaffirm Roe’s holding that subsequent to viability, State in promoting
interest in potentiality of human life may regulate, and even proscribe, abortion, except
where it is necessary in appropriate medical judgement for the preservation of the life of
health of the mother.
 Essential holding of Roe v. Wade should be retained & Roe is reaffirmed.
o Roe’s holding  1) recognition of the right of a woman to choose to have abortion
before viability w/o undue inference from the state; 2) confirmation of State’s power to
restrict abortions after fetal viability, if law contains exceptions for pregnancies which
endanger woman’s life or health; 3) State has legitimate interests from outset of
pregnancy in protecting health of woman & life of fetus
 Due Process of the 14th Amendment protects woman’s right to abort a non-viable fetus
 Can’t just overturn Roe as a response to national controversies. Neither the factual
underpinnings nor understanding of it has changed, & Court cannot pretend to be
reexamining the prior law w/ any justification beyond a present doctrinal disposition to come
out differently from the Court when Roe decided.
 o To overrule prior law for no other reason than that would run counter to view repeated
in cases  decision to overrule should rest on some special reason over & above belief
that prior case was wrongly decided.
o Overruling would run contrary to stare decisis & weaken ct’s capacity to exercise
judicial power/functions as SC.
 Woman’s liberty x so unlimited that State cannot show its concern for the life on the unborn
& at a later point in fetal development the State’s interest in life has sufficient force so that
the right of the woman to terminate the pregnancy can be restricted.
o Line should be drawn at viability, so that before time woman has right to choose to
terminate pregnancy.
 Adhere to principle b/c: 1) stare decisis; 2) concept of viability is time where
realistic possibility of maintaining & nourishing life outside womb, so that
independent existence of second life can be object of state protection that now
overrides rights of woman
 Roe established trimester framework. During 1st tri – no regulation is permitted; 2nd tri –
regulations designed to protect woman’s health, but not to further State’s interest in potential
life, permitted; 3rd tri – when fetus viable, prohibitions are permitted provided life or health
of mother x at stake.
o Trimester approach x necessary to accomplish objectives. Overrule trimester
framework
 Adopt undue burden standard  state regulation has purpose or effect of placing substantial
obstacle in path of woman seeking abortion of nonviable fetus.
o State w/ this purpose invalid b/c means chosen by State to further interest in potential
life must be calculated to inform the woman’s free choice, not to hider it.
o Statute which, while furthering interest in potential life or some other valid state
interest, has effect of placing substantial obstacle in path of woman’s choice, x be
considered permissible means of serving legitimate ends.
 Unless it has effect of her right of choice, state measure designed to persuade her to choose
childbirth over abortion will be upheld if reasonably related to goal.
 Medical emergency definition
o x undue burden.
 Informed consent requirement
o Valid  requires that physician inform woman of nature of procedure, health risks, &
probable gestational age of the unborn child 24-hours prior to abortion.
o Overrules Akron & Thornburgh ????
o If information State require sto be made available is truthful & x misleading,
requirement may be permissible.
o No reason why State may not require dr to inform woman seeking abortion of
availability of materials relating to consequences to fetus, even when consequences
have no direct relation to her health
 Waiting period x undue burden  State permitted to enact persuasive measures which
favor childbirth over abortion, even if those measures do not further a health interest.
o The right protected by Roe is a right to decide to terminate a pregnancy free of undue
interference by State. B/c informed consent requirement facilitates wise exercise of that
right, x classified as interference w/ right Roe protects
 Spousal notification  invalid b/c court is concerned w/ domestic violence  substantial
obstacle; undue burden & invalid.
o Husband’s interest in life of child x permit State to empower him w/ authority over
wife.
 Parental consent requirement  valid
 Recordkeeping & reporting requirement  valid; reasonably directed to preservation of
maternal health & properly respect patient’s confidentiality & privacy are permissible.
o X relate to state interest, but relate to health
o Vital to medical research

Concurrence/Dissent

 Justice Stevens’s Concurrence & Dissent ––

o Cannot overrule Roe at this point.
o Identifying State’s interest makes clear that interest in protecting potential life x
grounded in Constitution
o Woman has constitutional interest in liberty; right to bodily integrity, right to
control one’s person. Right is neutral
o State may: 1) express preference for normal childbirth, 2) decision thoughtful &
informed, 3) enact laws to provide reasonable framework.
o Decisional autonomy must limit State’s power to inject into woman’s most personal
deliberations its own views of what is best
o Material consent requirement unconstitutional; informed consent requirement
constitutional; 24-hour waiting unconstitutional.
 Justice Blackmun’s Concurrence & Dissent ––
o State restrictions on abortion violates woman’s right of privacy by 1) infringing on
right to bodily integrity by imposing substantial physical intrusions & significant
risks of harm; 2) implicate constitution guarantees on gender equality.
 When state restricts woman’s right to terminate pregnancy, deprives woman
of right to make own decisions about reproduction & family planning
o Triggers protection of EP. 24 waiting period unconstitutional. Reporting requirement
x further states interest. UNDUE BURDEN.
 Justice Rehnquist’s (White, Scalia, & Thomas) Concurrence & Dissent ––
o Roe should be overruled & would uphold PA’s statute
o Decision to abort involves destruction of fetus. Roe mistaken  termination x
fundamental right
o Q is whether abortion is liberty protected by Constitution  NO
 Constitution x mention it
 American traditions have permitted it to be legally proscribed
o Apply rational basis test to uphold PA statute in its entirety
o Ct is overstepping