Planned Parenthood of Southeastern Pennsylvania v. Casey

Summary

Planned Parenthood of Southeastern Pennsylvania v. Casey tested five provisions of Pennsylvania's Abortion Control Act of 1982, as amended in 1988 and 1989. The Act required informed consent and a twenty-four-hour wait, one parent's consent for a minor with a judicial bypass, a signed statement by a married woman that she had notified her husband, and reporting by facilities, with exceptions for a defined medical emergency. Before the provisions took effect, five clinics and a physician sued Governor Robert P. Casey and other officials. The District Court held all five provisions unconstitutional; the Court of Appeals for the Third Circuit upheld all but the spousal-notice rule. The question became whether Roe v. Wade should be reaffirmed, modified or overruled, and what standard should govern. The petitioners asked the Court to reaffirm Roe in full and apply strict scrutiny. Pennsylvania, supported by the United States as amicus curiae, argued that Roe should be overruled and that the Act should stand because it rationally served the State's interests in maternal health, informed choice and unborn life. The Court's answer came chiefly in a joint opinion by Justices O'Connor, Kennedy and Souter. Joined in key parts by Justices Blackmun and Stevens, it held by a vote of 5–4 that the essential holding of Roe should be retained. The joint opinion grounded the right in the liberty of the Due Process Clause, which courts must interpret by reasoned judgment rather than by the practices of 1868. It then applied the doctrine of stare decisis, asking whether Roe had proved unworkable, whether people had relied on it, whether later law had left it behind, and whether its factual premises had changed, and it found none of these grounds for overruling. It contrasted Roe with the overrulings of the Lochner line and of Plessy, and warned that yielding to pressure would damage the Court's legitimacy. In a part joined only by its three authors, it replaced Roe's trimester framework with a test asking whether a law places an undue burden on the woman's decision before viability. Applying that test, the Court upheld the consent, waiting-period, parental-consent and most reporting provisions and struck down spousal notification. Chief Justice Rehnquist, joined by Justices White, Scalia and Thomas, would have overruled Roe and upheld the whole Act, calling the joint opinion's view of precedent newly minted and its result an unjustified compromise. Justice Scalia, with the same three, argued that the Constitution says nothing about the matter and that the nation's long traditions permitted its regulation, and he criticized the undue-burden test as standardless. The library text gives excerpts of the joint opinion (Parts I through the opening of Part IV), of the Chief Justice's opinion and of Justice Scalia's, without the separate opinions of Blackmun and Stevens or the opinions' notes. Later cases such as Whole Woman's Health v. Hellerstedt (2016) applied the new standard. In 2022 Dobbs v. Jackson Women's Health Organization overruled Casey and Roe, and the decision remains debated as a study in stare decisis.

Plot or Argument

• Part I: a jurisprudence of doubt and the Pennsylvania Act

  The joint opinion opens by noting that the United States has again asked the Court to overrule Roe. It describes the five challenged provisions and the lower courts' rulings, then announces its conclusion: Roe's essential holding should be retained and reaffirmed, and that holding has three parts, which include both the woman's right before viability and the State's legitimate interests from the outset.

• Part II: liberty and reasoned judgment

  The authors locate the right in the substantive liberty of the Fourteenth Amendment. Neither the Bill of Rights nor the practices of 1868 mark its outer limits, they argue, citing Justice Harlan's dissent in Poe v. Ullman, Griswold and Loving. They acknowledge that people of good conscience disagree about the moral question, and state that the Court's obligation is to define the liberty of all rather than to impose a moral code.

• Part III-A: the questions stare decisis asks

  Precedent should be followed unless a rule has proved unworkable, its removal would work serious inequity on those who relied on it, later doctrine has left it an anachronism, or its factual premises have changed. The authors find Roe workable, find reliance in two decades of economic and social life, and treat changes in the timing of viability as irrelevant to the central holding.

• Part III-B: Lochner, Plessy and the meaning of overruling

  The joint opinion compares two lines of decisions the Court did overrule, the Lochner-era cases ended by West Coast Hotel and the separate-but-equal rule ended by Brown v. Board of Education. Both, it argues, were overruled because facts or the understanding of facts had changed, and no such change has occurred with Roe.

• Part III-C: legitimacy and the promise of constancy

  Because the Court has neither purse nor sword, its power rests on the people's acceptance of its decisions as principled. Frequent overruling, or overruling a divisive decision under political pressure, would cost the Court that legitimacy, which can be regained only slowly.

• Part IV (opening): liberty with limits

  The excerpt ends as the authors restate that the woman has some constitutional freedom to make the decision while the State may show its concern for unborn life from the outset and may restrict the right at a later point; the full opinion goes on to set out the undue-burden standard.

• Chief Justice Rehnquist: overrule Roe, uphold the Act

  The Chief Justice reviews two decades of decisions applying Roe to parental involvement, informed consent and other regulations, describes the resulting doctrine as confused, and argues that the right is not fundamental under the tests of Palko and Snyder. He would review each provision for a rational basis and sustain them all.

• Justice Scalia: text, tradition and the undue-burden test

  Scalia states the issue as whether the liberty claimed is protected by the Constitution, answers that it is not because the text is silent and tradition permitted regulation, and then answers the joint opinion's key phrases one by one, arguing that reasoned judgment conceals a value choice and that the undue-burden test is inherently manipulable.

Characters

• Sandra Day O'Connor, co-author of the joint opinion

  Associate Justice who had first articulated an undue-burden approach in her dissent in Akron v. Akron Center for Reproductive Health (1983).

• Anthony M. Kennedy, co-author of the joint opinion

  Associate Justice appointed in 1988 who joined O'Connor and Souter in the controlling opinion.

• David H. Souter, co-author of the joint opinion

  Associate Justice appointed in 1990, generally credited with the joint opinion's sections on stare decisis.

• William H. Rehnquist, Chief Justice, concurring in part and dissenting in part

  One of Roe's two original dissenters, who wrote that Roe should be overruled and the Pennsylvania Act upheld in full.

• Antonin Scalia, concurring in part and dissenting in part

  Associate Justice who answered the joint opinion's reasoning on liberty, precedent and the undue-burden test.

• Robert P. Casey, respondent

  Governor of Pennsylvania, named as the lead state official defending the Act.

• Planned Parenthood of Southeastern Pennsylvania, lead petitioner

  One of the clinics that, with a physician representing a class of physicians, challenged the Act before it took effect.

Lessons

• Four tests for keeping a precedent

  Part III-A turns the doctrine of stare decisis into a set of questions about workability, reliance, doctrinal change and changed facts. Students can apply these questions to any precedent and see that both the joint opinion and the Chief Justice accept that precedent matters, while disagreeing about what it requires here.

  • What four questions does the joint opinion ask about Roe?
  • Why does the Chief Justice describe the joint opinion's approach to stare decisis as newly minted?
  • Should a judge who believes a precedent was wrongly decided still follow it? Under what conditions?

• Reasoned judgment or tradition?

  The joint opinion holds that the liberty of the Fourteenth Amendment is not limited to rights named in the Bill of Rights or protected in 1868, and that judges must use reasoned judgment within the tradition of earlier cases. Scalia replies that such judgment has no fixed boundary and that text and long-standing tradition are the only reliable limits on judges.

  • Which earlier cases does the joint opinion cite to show that liberty reaches beyond the practices of 1868?
  • What two simple facts does Scalia say decide the case?
  • Which approach better restrains judges, and which better protects liberty? Can one approach do both?

• The legitimacy of a court

  The joint opinion argues that a court without purse or sword depends on public confidence in its principled character, and that overruling a divisive decision under pressure would spend that confidence. Its critics reply that the Court's legitimacy depends on faithful interpretation, not on constancy for its own sake.

  • According to Part III-C, what is the source of the Court's power?
  • How might the same concern for legitimacy be used to argue for overruling a decision?
  • Does a court earn respect more by standing by its decisions or by correcting them?

• A new test and its critics

  The undue-burden standard asks whether a regulation places a substantial obstacle in the woman's path before viability. Its authors offered it as a way to honour both the woman's liberty and the State's interests; Scalia and the Chief Justice argued that it gives judges no principled way to decide which burdens are undue.

  • Which provisions of the Pennsylvania Act survived under the new test, and which did not?
  • Why does Scalia call the test standardless?
  • Is a flexible legal standard or a bright-line rule better suited to a divided question?

Context

In the two decades after Roe the Court decided a series of cases on parental consent, informed consent, waiting periods and other regulations. In Webster v. Reproductive Health Services (1989) a plurality questioned the trimester framework, and after the retirements of Justices Brennan and Marshall many observers expected the Court to overrule Roe. Pennsylvania's Abortion Control Act, amended in 1988 and 1989 under Governor Casey, brought the question directly before a Court with five Justices appointed since 1981.

Composition

The case was argued on 22 April 1992, with Kathryn Kolbert for the petitioners, Pennsylvania Attorney General Ernest Preate Jr. for the State, and Solicitor General Kenneth Starr for the United States. The decision was announced on 29 June 1992. The joint opinion of three Justices, an unusual form, spoke for the Court in some parts and for a plurality in others; Blackmun and Stevens each wrote separately, concurring in part and dissenting in part. The library text follows the Wikisource transcription of 505 U.S. 833.

Reception

Lower courts applied the undue-burden standard for three decades, and the Court refined it in Gonzales v. Carhart (2007), Whole Woman's Health v. Hellerstedt (2016) and June Medical Services v. Russo (2020). In Dobbs v. Jackson Women's Health Organization (2022) the Court overruled Casey along with Roe, yet the joint opinion's account of precedent is still cited and the decision remains debated.

Comparisons

• roe-v-wade

  Casey keeps Roe's line at viability and its recognition of a protected liberty, but sets aside Blackmun's stage-by-stage framework and gives the State's interest in unborn life weight from the outset.

• dobbs-v-jackson-womens-health-organization

  The Dobbs majority answers Casey's four stare decisis questions with five factors of its own, while the Dobbs dissent calls Casey a precedent about precedent.

• brown-v-board-of-education

  The joint opinion treats Brown's overruling of Plessy as the model of a justified departure from precedent, resting on a changed understanding of facts.

• lochner-v-new-york

  Part III-B uses the end of the Lochner line in West Coast Hotel (1937) as its second example of when overruling was warranted.

• the-federalist-papers

  The joint opinion's description of a Court that can neither buy support nor coerce obedience echoes Federalist No. 78, which says the judiciary has no influence over either the sword or the purse.

• the-founding-documents

  The joint opinion cites the Ninth Amendment and builds on the Due Process Clause of the Fourteenth, while Scalia insists on the text of the Constitution as the limit of judicial power.

Quotes

For Students

A reading companion for classical Christian high school students. See the student guide.

Reading Guide

Watch for

• The opening sentence of the joint opinion and how Scalia turns it back against its authors.
• The three-part statement of Roe's essential holding in Part I, which includes the State's interests as well as the woman's liberty.
• Part III-A's four questions about precedent, and the answer given to each.
• Part III-C's account of the Court's legitimacy and why it cannot be restored by an election.
• Scalia's method of quoting a phrase from the joint opinion and answering it beneath.

Key terms and names

Stare decisis

Latin for to stand by things decided; the doctrine that courts should generally follow their own precedents.

Joint opinion

An opinion signed by several Justices as co-authors, here O'Connor, Kennedy and Souter, rather than written by one Justice for the Court.

Plurality

An opinion supported by more Justices than any other but by fewer than a majority, so that it controls the outcome without binding as a full opinion of the Court.

Undue burden

The joint opinion's test asking whether a law places a substantial obstacle in the path of a woman's decision before viability.

Reliance

The way people arrange their lives and affairs on the expectation that a legal rule will continue, which weighs against overruling it.

Judicial bypass

A procedure allowing a minor to seek a judge's authorization in place of a parent's consent.

Reasoned judgment

The joint opinion's name for the capacity courts use to interpret the Constitution's general guarantees, which Scalia argued has no fixed limits.

Seminar Questions

1. Comprehension What five provisions of the Pennsylvania Act were challenged, and which one did the Court strike down?
2. Comprehension What are the three parts of Roe's essential holding as the joint opinion states them?
3. Comprehension Which Justices joined the Chief Justice's opinion, and what would they have done with the Act?
4. Interpretation Why does the joint opinion compare Roe with the cases overruled by West Coast Hotel and by Brown?
5. Interpretation How does Scalia use the joint opinion's own words, such as reasoned judgment and jurisprudence of doubt, to argue against it?
6. Interpretation The joint opinion says some of its authors may have reservations about Roe. Why might a judge vote to keep a precedent while doubting it?
7. Big Question Is the stability of the law a good strong enough to outweigh a judge's conviction that an earlier decision was mistaken?

Faith Connections

• Jeremiah 6:16 (Scripture)

  The prophet bids the people stand in the ways and ask for the old paths, where is the good way; Casey and its dissenters both appeal to settled paths, but disagree over which path the law has walked.

• Deuteronomy 16:19-20 (Scripture)

  Judges are told not to wrest judgment or respect persons, but to follow that which is altogether just; the joint opinion's concern that the Court not yield to pressure echoes this charge.

• Thomas Aquinas, Summa Theologiae I-II, q. 97, a. 2 (Great Conversation)

  Aquinas taught that a human law should be changed only when the benefit to the common good outweighs the harm done by unsettling custom, a principle close to the stare decisis reasoning debated in Casey.

Logic and Rhetoric

Central argument: The joint opinion argues that the Fourteenth Amendment protects a sphere of personal liberty that includes this decision, that the doctrine of stare decisis and the Court's legitimacy forbid overruling Roe's essential holding absent changed facts or doctrine, and that a more flexible undue-burden test better honours the State's interests. The dissenters answer that the Constitution's text and the nation's traditions give the right no protection, that precedent cannot sustain an erroneous constitutional ruling, and that the new test leaves judges to make policy choices.

Rhetorical device: aphorism. The joint opinion begins with a compressed maxim, Liberty finds no refuge in a jurisprudence of doubt (quote 0), which Scalia later sets as a heading and answers.

Debate: Resolved: that the Supreme Court should give its institutional legitimacy weight when deciding whether to overrule a controversial precedent.

Memory Work

Liberty finds no refuge in a jurisprudence of doubt.

The issue is whether it is a liberty protected by the Constitution of the United States.

Writing Prompts

Essay: Present the joint opinion's argument from stare decisis and the Chief Justice's reply, each at its strongest, and explain which of the four precedent questions you think does the most work in the joint opinion.

Comparison with Roe v. Wade: Compare what Casey keeps from Roe with what it changes, and explain how the joint opinion justifies keeping the first while changing the second.

Medical Lens

The excerpted opinions concern the doctrine of precedent, the meaning of liberty and the Court's legitimacy; the record treats the Pennsylvania provisions only as legal requirements and includes no medical content.

Creative Prompts

• Classroom

  Hold a moot court limited to stare decisis: one side applies the joint opinion's four questions to Roe, the other argues the Chief Justice's view, and student justices must write a short opinion on precedent alone.

• Essay

  Write an amicus brief, no longer than two pages, on whether a court should give weight to its own legitimacy when deciding whether to overrule a precedent, citing Part III-C and Scalia's reply.

• Dialogue

  Write a conference-room exchange in spring 1992 among three Justices trying to agree on a single opinion, each explaining what they would need in order to sign it.

• Essay

  Compare how the joint opinion uses Brown v. Board of Education and West Coast Hotel to justify keeping Roe with how the Dobbs majority later used Brown to justify overruling it.

Further Reading

• A Matter of Interpretation: Federal Courts and the Law, Antonin Scalia

  Scalia's Tanner Lectures setting out the textualist and originalist approach behind his Casey opinion, with responses from other scholars.

• Sandra Day O'Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice, Joan Biskupic

  Includes an account of how the joint opinion took shape.

• Roe v. Wade: The Abortion Rights Controversy in American History, N. E. H. Hull and Peter Charles Hoffer

  Follows the line of cases from Roe through Casey and the arguments on each side.