LOCATION: Pennsylvania State Capitol
DOCKET NO.: 91-744
DECIDED BY: Rehnquist Court (1991-1993)
LOWER COURT: United States Court of Appeals for the Third Circuit
CITATION: 505 US 833 (1992)
ARGUED: Apr 22, 1992
DECIDED: Jun 29, 1992
Ernest D. Preate, Jr. – Argued the cause for the respondents
Kathryn Kolbert – Argued the cause for the petitioners
Kenneth W. Starr – Department of Justice, argued the cause for the United States as amicus curiae
Facts of the case
The Pennsylvania legislature amended its abortion control law in 1988 and 1989. Among the new provisions, the law required informed consent and a 24 hour waiting period prior to the procedure. A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure). A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. These provisions were challenged by several abortion clinics and physicians. A federal appeals court upheld all the provisions except for the husband notification requirement.
Can a state require women who want an abortion to obtain informed consent, wait 24 hours, and, if minors, obtain parental consent, without violating their right to abortions as guaranteed by Roe v. Wade?
Media for Planned Parenthood of Southeastern Pennsylvania v. Casey
Audio Transcription for Opinion Announcement – June 29, 1992 in Planned Parenthood of Southeastern Pennsylvania v. Casey
William H. Rehnquist:
Planned Parenthood of Southeast Pennsylvania versus Casey and a companion case will be announced by Justices O’Connor, Kennedy, and Souter.
Sandra Day O’Connor:
These cases come to us on certiorari to the Court of Appeals for the Third Circuit.
At issue are five provisions of the Pennsylvania Abortion Control Act.
The petitioner has filed suit in Federal District Court challenging the provisions as spatially unconstitutional.
The District Court found them unconstitutional and enjoin their enforcement.
The Court of Appeals reversed in part and upheld four of the five provisions.
The remaining provision, which would require married women to notify their husbands before obtaining abortion, was found unconstitutional by the Court of Appeals.
By the combination of several separate opinions filed today, the judgment in Number 91902 is affirmed and a judgment in 91744 is affirmed in part and reversed in part.
Justice Kennedy, Justice Souter, and I have filed a joint opinion which is joined in part by Justice Blackmun and Justice Stevens and as to that extent, the opinion of the Court.
Justice Kennedy and Justice Souter will have — also have something to say about the judgment in these cases.
Both the petitioners and the cross-petitioners as well as the United States as amicus have urged us to reexamine the Court’s holding in Roe against Wade decided in 1973.
In a joint opinion filed with the clerk today, we have done so, and we conclude that the central holding of Roe should be reaffirmed.
Some of us as individuals find abortion offensive to our most basic principles of morality but that can’t control our decision.
Our obligation is to define the liberty of all, not to mandate our own moral code.
After considering the constitutional questions decided in Roe, the principles underlying the institutional integrity of this Court and the rule of stare decisis, we reaffirm the constitutionally protected liberty of the woman to decide to have an abortion before the fetus attains viability and to obtain it without undo interference from the State.
We also reaffirm the State’s power to restrict abortion after fetal viability if exceptions are made for the woman’s life or health is in danger.
We also hold the State has legitimate interest from the outset of pregnancy and protecting the health of the mother and the life of the fetus that may become a child, and that the State may further these interests so long as it does not unduly burden the woman’s right to choose.
Applying our analysis to the Pennsylvania Statutes challenged here, we uphold with some exceptions four of the five challenged provisions.
We find that the definition of medical emergency a requirement of informed consent, a requirement of parental consent, and a recordkeeping in reporting requirements do not impose undue burdens on a woman’s right to choose whether she will terminate her pregnancy before viability.
We conclude however that the husband notification requirement unduly burdens his right and as for that reason unconstitutional.
Anthony M. Kennedy:
The — the essential holding of Roe versus Wade, the holding that we today retain and reaffirm has three parts.
First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference by the State.
Before viability, the State’s interests are not so strong to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect to that procedure.
Second is a confirmation of the State’s power to restrict abortion after fetal viability if the law contains exceptions for pregnancies which endanger a woman’s life or health.
And third is the principle that the State has legitimate interest from the outset of pregnancy in protecting the health of the woman and the life of the fetus that may become a child.
These principles do not contradict each other and we adhere to each.
Our cases recognize 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.
Our precedents “have respected the private realm of family life which the state cannot enter.”
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.
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.
Anthony M. Kennedy:
These considerations begin our analysis of the woman’s interest in terminating her pregnancy but cannot end it for the liberty at stake is in a sense unique to the human condition and so unique to the law.
The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear, that these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist that she make the sacrifice.
Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and of our culture.
The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.
Now for these basic reasons, the essential judgment in Roe versus Wade was well within our constitutional heritage.
Yet it must be remembered that Roe versus Wade speaks with clarity in establishing not only the woman’s liberty but also the State’s important and legitimate interest in potential life.
That portion of the decision in Roe has been given too little acknowledgement and implementation by the Court in its subsequent cases.
Roe established a trimester framework to govern abortion regulations.
That trimester framework no doubt was erected to ensure that the woman’s right to choose not become so subordinate to the State’s interest in promoting fetal life that her choice exists in theory, but not in fact.
We do not agree, however, that the trimester approach is necessary to accomplish this objective.
Though the woman has a right to choose, to terminate or continue her pregnancy before viability, it does not at all follow that the State is prohibited from taking steps to ensure that her choice is thoughtful and informed.
Under the standard, we would adopt so long as it does not place a substantial obstacle in the path of the woman’s choice.
Throughout the woman’s pregnancy the State may enact measures designed to persuade the women to choose child birth over abortion.
To put it another way, the State may not place an undue burden on the woman’s right to choose an abortion.
Today, we hold that the requirement that a married woman inform her husband before she undergoes an abortion is invalid.
Most married women who seek abortions inform their husbands of their own volition.
For these women, the regulation is irrelevant.
The regulation is targeted at women who would not otherwise choose to inform their husbands.
The record shows that the reason many of these women do not inform their husbands is that they have good reason to fear abuse.
The husband’s interest in the life of the child his wife is carrying does not permit the State to empower him with this troubling degree of authority over his wife.
A husband has no enforceable right to require a wife to advise him before she exercises her personal choices, and a State may not give to a man the kind of dominion over his wife that parents exercise over their children.
The notification provision is invalid.
As Justice O’Connor has indicated with one exception, we uphold the other challenged provisions of the statute on the basis of the record before and in the context of this facial challenge.
We cannot say that the petitioners have shown that any of these provisions places a substantial obstacle in the path of the woman’s choice.
The exception is the portion of the reporting statute which requires a woman to supply the reason she did not provide notice to her husband before obtaining an abortion.
We hold this provision invalid for the same reason that the husband notification requirement itself is invalid.
David H. Souter:
When Justice O’Connor and Justice Kennedy have spoken about the application of the undue burden standard in implementing the central holding of the Roe Case and about the conception of personal liberty that is one of the grounds supporting our decision to adhere to that holding.
That holding rested of course not only on a concept of liberty but also on an assessment of the state interest asserted to restrict the exercise of that liberty.
It is unnecessary for us to decide and we do not say whether we would have resolved the opposing personal and governmental claims as the Roe Court did.
Instead, it suffices to explain that a foundation for our decision today is the conclusion that if there was error in Roe, its significance is outweighed by the importance of following prior precedent.
David H. Souter:
The principles on which we measured that importance not only support but require adherence to Roe’s central holding.
A presumption in favor of stare decisis of standing by the resolution of an issue reached in a prior case is necessary not only to accomplish the mundane tasks of any legal system but to realize our hope for a stable society aspiring to the rule of law.
At the least that, that ideal requires a system characterized in the name by the continuity of rules over time.
Except in the instance of a ruling so clearly erroneous is to be for that very reason unenforceable our decisions to adhere to holdings of prior cases or in exceptional circumstances to overrule them are informed by a series of prudential inquiries which in this instance provide reasons to adhere to Roe’s central holding.
Despite the controversy it has produced, the decision has not proven unworkable in practice, it is undoubtedly engendered reliance and countless people who have organized intimate relationships and made choices that define their views of themselves and their places in society in the two decades since it was handed down.
It is not been rendered doctrinally anachronistic by other legal developments in the past 20 years and the factual premises on which it rests are no different today from those on which the ruling rested initially.
A decision to adhere to Roe’s central holding would therefore be appropriate in accordance with the customary indications of precedential force.
But to rest the decision on those customary indications alone would fail to explain the decision completely for it would fail to take account of the cost of ignoring principals of stare decisis when ask to overrule a case with the very rare significance of Roe.
Roe’s extraordinary dimension is imparted by the fact that the Court’s constitutional decision in that case called the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.
The Court is not asked to do this very often having thus address the nation only twice in our lifetime and the decisions of Brown v. Board of Education and Roe itself.
But when the Court does act in this way, its decision requires an equally rare precedential force.
Whatever the premises of opposition may be only the most convincing justification under accepted standards of precedent would suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure and then an unjustified repudiation of the principal on which the Court states its authority in the first instance.
So to overrule in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court’s legitimacy beyond any serious question.
To all those who will be tested by following the Court’s decision in a watershed case like Roe, the Court implicitly undertakes to remain steadfast.
The promise of constancy once given binds the Court for as long as the power to standby the decision survives and the understanding of the issue has not changed so fundamentally is to render that commitment obsolete.
A willing breach of it would be nothing less than a breach of faith and no Court that broke its faith with the people could sensibly expect credit for principle in the decision by which it did that.
It is true that diminished legitimacy may be restored but only slowly.
Unlike the political branches, a Court thus weakened could not seek to regain its position with a new mandate from the voters, and even if the Court could somehow go to the polls, the loss of its principled character could not be retrieved by the casting of so many votes.
Like the character of an individual, the legitimacy of the Court must be earned over time.
If the Court’s legitimacy should be undermined, the country would also, in its variability to see itself through its constitutional ideals.
The Court’s concern with legitimacy is not for the sake of the Court but for the sake of the nation to which it is responsible.
The Court’s duty in the present case is clear.
In 1973, it confronted the already-divisive issue of governmental power to limit personal choice to undergo abortion, for which it provided a new resolution based on the due process guaranteed by the Fourteenth Amendment.
A decision to overrule Roe’s essential holding under the existing circumstances 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.
It is therefore imperative to adhere to the essence of Roe’s original decision, and we do so today in striking down a portion of the Pennsylvania statute.
William H. Rehnquist:
Justice Stevens has filed an opinion concurring in part and dissenting in part.
Justice Blackmun has filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part.
I have filed an opinion concurring in part and dissenting in part in which Justices White, Scalia and Thomas have joined.
Under our system of government, unless the Constitution speaks to an issue, the matter is one for resolution by the legislatures even if the Court deems those resolutions unwise.
Nineteen years ago in Roe against Wade, this Court decided that the Constitution establishes a woman’s fundamental right to obtain an abortion and thereafter, the Court acted, in our view, as a sort national legislature on this issue imposing a complex abortion code on the States.
William H. Rehnquist:
Today, only two members of this court still claim that Court’s decision in Roe was correct.
In their joint opinion, Justices O’Connor, Kennedy, and Souter do not say that the decision in Roe was correct but they — they conclude what they call its “central holding” must be retained to serve the principle of stare decisis.
Stare decisis is defined by Black’s Law Dictionary as meaning to abide by or adhere to decided cases.
It is clear however that the joined opinion does not apply that principal in dealing with Roe.
Roe decided that a woman has a fundamental right to an abortion.
The joint opinion rejects that view.
Roe decided that abortion regulations were to be subjected to strict scrutiny and could be justified only in the light of compelling state interest.
The joint opinion rejects that view.
Roe analyzed abortion regulation under a rigid trimester framework, a framework which has guided this Court’s decision making for 19 years.
The joint opinion rejects that framework and cases following Roe are overruled.
The analysis in Roe is replaced by what is called the “undue burden test” which does not command the majority of this Court even today.
This is surely not stare decisis as we have known it up until now.
The joint opinion expresses the view that the solution it has come up whether it’s necessary to save the legitimacy of the Court.
It expresses concern that a complete reversal of this — on this intensely divisive issue would be viewed as a surrender to political pressure in response to our decision in Roe, but the joint opinion’s insistent — insistence on preserving the form, if not the substance of rule, can just easily be viewed as a surrender to those who have brought political pressure in favor of that decision.
Once the Court starts looking to the currents of public opinion regarding a particular judgment, it enters a truly bottomless pit from which there is simply no extracting itself.
The special rule for intensely divisive cases depends on a completely amorphous standard quite formed to our established doctrine of stare decisis with respect to constitutional cases.
Justice White, Justice Scalia, Justice Thomas and I are of the opinion that the Court did err in Roe when it determined that the Constitution includes a fundamental right to abortion.
We believed in accordance with the views expressed in Webster versus Reproductive Health Services, decided several terms ago, that a woman has a liberty interest under the due process clause in obtaining an abortion but that the State may regulate abortion procedures in ways that are rationally related to a legitimate state interest.
Applying this test, we will uphold each of the Pennsylvania regulations challenged in this case.
Justice Scalia has filed a dissenting opinion in which I, Justice White and Justice Thomas have joined.