Docket 91-744
Planned Parenthood of Southeastern Pa. v. Casey
DecidedJun 29, 1992
5-4decision
Source: CourtListener.
Court reaffirms right to abortion before viability but allows more state restrictions
What it does
The Court reaffirms the "essential holding" of Roe v. Wade—that women have a right to choose abortion before viability without undue interference from the state, that states may restrict abortion after viability subject to health exceptions, and that states have legitimate interests in protecting maternal health and potential life throughout pregnancy. It replaces Roe's rigid trimester framework and strict-scrutiny standard with a new "undue burden" test, under which pre-viability abortion regulations are invalid only if they place a "substantial obstacle" in a woman's path.
Who benefits
Women seeking abortions retain a constitutional right to obtain one before viability, and married women specifically benefit because the spousal notification requirement is struck down. States gain expanded authority to enact informed-consent rules, waiting periods, and reporting requirements that further childbirth over abortion.
Who is affected
Women seeking abortions in Pennsylvania and other states now face 24-hour waiting periods, mandatory disclosure of state-produced information, and parental consent requirements for minors (with judicial bypass), all upheld under the new undue-burden standard. Physicians performing abortions must comply with these informed-consent and reporting mandates or face licensing penalties.
Practical impact
States retain the ability to impose informed-consent counseling, 24-hour waiting periods, and parental consent requirements with judicial bypass for minors seeking abortions, provided these do not impose a substantial obstacle. Spousal notification laws are unconstitutional nationwide. Lower courts must now apply the "undue burden" standard rather than strict scrutiny to evaluate future abortion regulations, giving states considerably more latitude to legislate around abortion access before viability than Roe previously allowed.
Majority reasoning
The joint opinion held that stare decisis strongly favors retaining Roe's central holding because it has not proven unworkable, women have organized their lives around the availability of abortion, and no change in facts or legal doctrine has undermined its foundations. The Court reasoned that overruling Roe now, under political pressure, would severely damage the Court's legitimacy since Roe resolved a nationally divisive issue that only the Court's continued adherence can keep from reigniting. It rejected Roe's rigid trimester framework as failing to adequately value the state's interest in potential life throughout pregnancy, replacing it with an "undue burden" standard: a regulation is unconstitutional only if its purpose or effect is to place a substantial obstacle in the path of a woman seeking a pre-viability abortion. Applying this standard, the Court upheld the informed-consent requirements, the 24-hour waiting period, the parental consent provision, and most reporting requirements, but struck down the spousal notification requirement because it would likely deter a large fraction of affected women—particularly victims of domestic abuse—from obtaining abortions, effectively giving husbands veto power reminiscent of the invalidated spousal consent law in Danforth.
Dissent reasoning
Chief Justice Rehnquist, joined by Justices White, Scalia, and Thomas, dissented in part, arguing that Roe was wrongly decided and should be overruled because abortion is not a fundamental right rooted in constitutional text or the nation's history and traditions, unlike marriage or contraception. He argued the joint opinion's stare decisis analysis was contrived, since it discarded much of Roe's actual reasoning while purporting to preserve a "central holding," and that the proper standard should be rational-basis review, under which he would uphold all the challenged provisions including spousal notification, which he found rationally related to the state's interest in the marital relationship and paternal involvement. Justice Scalia, joined by the Chief Justice, Justice White, and Justice Thomas, separately dissented, contending the Constitution says nothing about abortion and the nation's traditions have long permitted its restriction, so the issue should be resolved by legislatures rather than courts. Scalia further argued the "undue burden" standard is standardless and manipulable, inconsistent with the joint opinion's own earlier formulations, and that the Court's stated concern for its "legitimacy" was actually a capitulation to public pressure rather than a principled application of law, comparing the joint opinion's rhetoric unfavorably to the Court's handling of Dred Scott and Lochner-era cases.
Constitutional question
Whether the Constitution's protection of a woman's right to choose abortion, recognized in Roe v. Wade, should be reaffirmed, and what standard should govern state abortion regulations enacted before fetal viability.
Precedent changed
The Court overruled portions of Akron v. Akron Center for Reproductive Health and Thornburgh v. American College of Obstetricians and Gynecologists to the extent they invalidated informed-consent and waiting-period requirements, and abandoned Roe's rigid trimester framework and strict-scrutiny standard in favor of the "undue burden" test.