Planned Parenthood v. Casey (1992)

Argued April 22, 1992; Decided June 29, 1992

Background of the Casey Supreme Court

Supreme Court which heard Planned Parenthood v. Casey consisted of Justices Rehnquist, Scalia, Souter, O'Connor, Kennedy, Blackmun, Stevens, White and Thomas.

William Rehnquist: He was nominated by President Nixon to the Supreme Court in 1971 and as Chief Justice by President Reagan in 1986. Rehnquist has a reputation of being an ultra-conservative judge, taking a narrow view of the 14th Amendment and a broad view of state power. He has voted against the expansion of school desegregation, abortion rights and for school prayer, capital punishment, and state rights. Dissented in Casey.

Harry Blackmun (1908-1999): Nominated to the Supreme Court by President Nixon in 1970, Blackmun served until 1994. A Republican, Blackmun took an increasingly liberal stance in cases during his tenure on the Supreme Court. He is famous as the author of the majority decision in Roe v. Wade (1973) legalizing abortion. Supported plurality opinion in Casey

Sandra O'Connor (1930-): Nominated by President Reagan in 1981, she is the first woman to be appointed as a U.S. Supreme Court judge. Noted for her case-by-case approach and moderate centrist views, she has often held the "swing vote" in recent Supreme Curt decisions. Supported plurality opinion in Casey

Anthony Kennedy (1936-): Another Reagan nominee, he has been on the U.S. Supreme Court bench since 1988. Is known as a moderate conservative, but has generally supported personal "right to privacy" against state power. Supported plurality opinion in Casey.

John Stevens (1920-): Appointed by President Ford in 1975, Stevens is a moderate; has sided with liberal-leaning judges in a conservative court under Rehnquist. Supported plurality opinion in Casey.

Antonin Scalia (1920-): Another Reagan appointee (1986), he is considered the leading conservative voice on the Court and is known for his strict literal interpretation of the text of the U.S. Constitution. Dissented in Casey.

Byron White (1917-2002): Appointed by President Kennedy in 1962, he served until his retirement in 1993. A frequent critic of "substantive due process," he dissented in Roe v. Wade as well as Casey.

David Souter (1939-): Although appointed by a Republican President (George H.W. Bush) in 1990, he tends to side with liberals rather than the conservatives. Supported plurality opinion in Casey.

Clarence Thomas (1948-): Another Bush appointee from 1990, Thomas is the second Black American to become a Supreme Court justice. He is considered to be one of the most conservative justices on the current court. Dissented in Casey.

Important Pre-Casey Cases

Roe v. Wade (1973): The landmark Supreme Court decision on abortion which recognized abortion as a constitutional right in the U.S. For the first time and overturned individual states' laws on abortion. The case involved a class action suit brought by Norma McCorvey against Texas's anti-abortion laws, claiming that the laws violated her fundamental rights under the U.S. Constitution. The majority (7-2) ruling, authored by Justice Blackman, held that the 'right of privacy' was implicit in the Due Process Clause of the Fourteenth Amendment and this "the right of personal privacy includes the abortion decision." The decision established a system of trimesters. It specified that during the first trimester, the State cannot restrict a woman's right to an abortion; during the second trimester, the State was allowed to regulate the abortion procedure "in ways that are reasonably related to maternal health," and in the third trimester, the State could "choose to restrict or even to proscribe abortion."

Roe v. Wade is one of the most controversial rulings in the history of U.S. Supreme Court. It generated heated criticism from anti-abortion groups such as the Catholics, letter writing campaigns to the Court, and also gave rise to a Pro-life movement. Conservative academics called it a badly drafted law, which was against the U.S. Constitution and called for its repeal.

Doe v. Bolton (1973): This is the lesser known case on abortion, which was decided by the U.S. Supreme Court on the same day as the Roe v. Wade ruling. It involved a suit brought against Georgia's attorney-general by a pregnant woman, "Mary Doe" and others seeking to outlaw Georgia's laws on abortion. Using the same logic as for Roe, the Supreme Court dramatically expanded its pro-choice ruling by striking down Georgia's more liberal abortion laws. ("Roe v. Wade Expanded....," n.d.)

Harris v. MCrae (1980): The U.S. Congress passed the "Hyde Amendment" in the late 70s that severely limited the use of federal funds to reimburse the cost of abortions under the Medicaid program. The Hyde Amendment was challenged in Harris v. McRae as bing in violation of the right to privacy, the Due Process Clause of the Fifth Amendment, and the Religion Clauses of the First Amendment. The Supreme Court upheld the Amendment by ruling that woman's freedom of choice did not carry with it "a constitutional entitlement to the financial resources." (Goldman, 1996-"Harris v. McRae)

Webster vs. Reproductive Health Services (1989): In a fractured and contoversial 5-4 decision, the Court upheld several abortion restrictions enacted by the state of Missouri. It substantially modified the Roe's trimester framework by arguing that "the State's interest in protecting potential life could come into existence before the point of viability." However, the Court declined to explicitly over-rule Roe. (Goldman, 1996, "Webster v...")

Historical, Social and Legal background of Casey

Pressure against Roe vs. Wade kept on increasing from the time of its decision in 1973. Besides the routine picketing of the Supreme Court building in Washington D.C. By protestors at every anniversary of the Roe decision, pro-life activists carried out an organized campaign aimed at the repeal of the decision. Anti-abortion literature was widely distributed highlighting the psychological problems for women who had undergone abortion due to guilt feelings and the enhanced possibility of infertility for such women. Their campaign was bolstered by the switching of sides by Norma McCorvey (the "Roe" of Roe v. Wade) who had converted to Christianity and claimed that she had been exploited and misled by anti-abortion lawyers during the trial.

Several states enacted laws limiting the right of abortion, including laws requiring parental and spousal consent, restricting abortions in clinics, and laws barring state funding for abortions. The Hyde Amendment was passed by the U.S. Congress banning state funds for abortions. In a long series of cases from the mid-1970s to the late 1980s, the Supreme Court consistently struck down several state restrictions on abortions, but upheld restrictions on funding.

Hopes for overturning of Roe were bolstered when the ultra-conservative Ronald Reagan took office in 1980 and made views on abortion a criterea for making judicial appointments. With the retirement of Justices Brennan and Marshall and their replacement with conservative judges by George H.W. Bush, the demise of Roe looked imminent when Casey came up for the Court's consideratin in 1992. ("Planned Parenthood v....," 2004, Wickipedia)

Arguments from Both Sides

The State of Pennsylvania amended its Abortion Control Act, 1982 in 1988 and 1989 to include provisions that: 1) Required women seeking abortion to give their "informed consent" and the doctors to provide information about the health risks of having an abortion prior to the abortion. 2) a "spousal notification" rule required women to give prior notice to their husbands; 3) a "parental notification" rule required a similar informed consent from parents of minors; and 4) the requirement of a 24-hour waiting period before obtaining an abortion.

Due to the historical and legal background of the case discussed in the preceding section, Casey was an opportunity for the anti-abortionists to not just defending the restrictive provisions of the Act, but an opportunity to overturn the Roe decision itself. Hence the state of Pennsylvania based its defense of the Act in part by urging the Court to overturn Roe as having been in error.

Arguments in favor of upholding Roe were that the force of stare decisis and the fact that no new developments had taken place since the time of Roe to justify an overturn of the 'essential ruling' of the case. As such, a decision to overrule Roe "would seriously weaken the Court's capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law." (Quote from "Justice Blackmun, concurring in part..." Find Law)

Essentials of the Plurality Decision

In its plurality decision the court upheld the "essential holding" of Roe, i.e., the right of women to abortion in the initial stages of pregnancy. The Court, however, shifted the "grounding" of Roe by ruling that the right to abortion was "grounded in the general sense of liberty" under the 14th Amendment, rather than in a general right of privacy. It overturned the strict "trimester" formula of Roe and recognized "viability" as the point at which the State may ban abortion. The Court used an "undue burden" standard to uphold all the restrictions imposed in the Penn State Act save the one about "spousal notification requirement." ("The O'Connor, Kennedy and Souter Plurality Opinion," FindLaw)

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