1. The Right to Privacy III Abortion Rights II
Lecture 31 Chapter 10
The Right to Privacy III
Abortion Rights II

2. This Lecture Chapter 10 More on Abortion Rights
Pages
The Right to Abortion II
Planned Parenthood of SE Pennsylvania v. Casey (1992)
1981 brings us the Reagan Administration
O’Connor has now replaced Stewart
She was less known, but had a libertarian streak and had been criticized by Jerry Falwell
She had been a Republican State Senate Majority Leader in Arizona
Supreme Court

3. Akron v. Akron Center for Reproductive Health (1983)
6-3 opinion by Powell, J. striking down all parts of an expansive Akron abortion law
1) All first trimester abortions must be performed in a hospital
2) Minors under 15 must receive written parental consent
3) Woman must give informed consent
4) 24 hour waiting period
5) Disposal of aborted fetus regulation (vagueness)
These first four were struck down because the intent was to discourage a woman from obtaining an abortion
O’Connor criticizes the Roe trimester framework in regard to viability
She proposes an “undue burden” standard
If the regulation does not unduly burden the right to an abortion, apply rational basis
If it does place an undue burden, apply strict scrutiny
Note she didn’t say to overrule the fundamental holding in Roe

4. Thornburgh v. American College of Obstetricians and Gynecologists (1986)
Challenge to a similar law as was found in Akron
1) Informed Consent requirement
2) Women must be given information on the risks of abortion
3) Certain reporting procedures
4) Medical techniques to be required after viability
5) Two physicians for post-viability abortions
5-4 decision by Blackmun, J. (Burger, C.J. on the dissenting side here)
Strikes down the law for similar women’s rights reasons
Reagan Administration asked the Court to overrule Roe

5. Webster v. Reproductive Health Services (1989)
Challenge to a Missouri law that:
1) Required Missouri laws to be interpreted to protect the unborn, subject to federal court limitations
2) Prevented governmental employed doctors from aborting a viable fetus
3) Prohibited state employees to perform or assist in abortions except with the life of the mother exception
4) Gag-rule prohibited the use of public funds, state employees or facilities to encourage or counsel a women to have an abortion, with the life of the mother exception
5) Required a viability test for certain later term abortions
This time a 5-4 Court upholds the restrictions
They say that Harris applies on the state funds issue
Then they also say that the government has an interest in protecting viable fetuses
Scalia, J. argued for the overturning of Roe and was upset that they did not take up this issue directly
Blackmun, J. saw this as the Court looking to do so in the future

6. The Court Changes under Reagan/Bush
With 12 years of Republican presidents, the Court changes
1981 Stewart O’Connor
1986 Burger Rehnquist as Chief Justice
1986 Rehnquist/Burger Scalia
1988 Powell Kennedy
1990 Brennan Souter
1991 Marshall Thomas
Four of these changes were replacing very pro-Roe justices
Would the Court change its mind?

7. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)
Background
Challenge to the Pennsylvania Abortion Control Act of 1989
1) Informed consent and a 24 hour waiting period
2) Parental consent for minors with a judicial bypass
3) Spousal notification
4) Medical emergency definitions
5) Comprehensive record keeping on all abortions and even details on the fetus
The clinics in Pennsylvania challenge the law, and win at the district court
The 3rd Circuit reverses, using the undue burden test, but strikes down spousal consent
One judge on this panel was Samuel Alito, who would have upheld all of them
The Bush Administration urged for Roe to be overturned

8. Planned Parenthood of Southeastern Pennsylvania v. Casey- II
Arguments
For Planned Parenthood
Strict scrutiny must apply abortion rights are a fundamental right
Undue burden test to vague and not manageable
Rational basis too deferential to regulations
The law loses under all reviewable standards
For Casey (and Pennsylvania)
Proper standard is undue burden and this meets it
In the alternative, the Court should overrule Roe

9. Planned Parenthood of Southeastern Pennsylvania v. Casey- III
O'CONNOR, KENNEDY, and SOUTER, JJ., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, V-A, V-C, and VI, in which BLACKMUN and STEVENS, JJ., joined, an opinion with respect to Part V-E, in which STEVENS, J., joined, and an opinion with respect to Parts IV, V-B, and V-D
STEVENS, J., filed an opinion concurring in part and dissenting in part, post, p
BLACKMUN, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, post, p. 922.
REHNQUIST, C. J., filed an opinion concurring in the judgment in part and dissenting in part, in which WHITE, SCALIA, and THOMAS, JJ., joined, post, p. 944.
SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C. J., and WHITE and THOMAS, JJ., joined, post, p. 979

10. Planned Parenthood of Southeastern Pennsylvania v. Casey- IV
From the joint O’Connor, Kennedy, Souter, JJ. Judgment/opinion
One does not often see a three person joint opinion
Roe is saved is the long and short that the public grasped
But the important thing about Casey is that Casey is not the relevant law on abortion regulations, not Roe
The Court reaffirms the central holding in Roe v. Wade by applying stare decisis
1) The right of a women to have an abortion before viability without undue interference from the government
State interests not strong pre-viability
2) The state has a right to restrict abortion post-viability if they provide for life/health of the mother exceptions
3) The state has a legitimate interest in protecting material health and the life of the fetus from the beginning

11. Planned Parenthood of Southeastern Pennsylvania v. Casey- V
More from the trio
They find that the right to an abortion is derived from the 14th Amendment Due Process Clause
Key is the word “liberty”
There are areas where government cannot enter, such as marriage (Loving)
There is a liberty interest for the women in abortion decisions that is unique
This is similar to the choice to use contraception
Women’s liberty with respect to personal decisions regarding procreation
“The destiny of the woman must be shaped by to a large extent on her own conception of her spiritual imperatives and her place in society”

12. Planned Parenthood of Southeastern Pennsylvania v. Casey- VI
Even more from the three
Stare decisis is not a command ask these questions
1) Was the rule unworkable?
Roe not unworkable
2) Is there some detrimental reliance on the standard?
Women have relied on their ability to control their own bodies
3) Have other parts of the law rendered the case abandoned? No
4) Have the facts changed?
They do acknowledge some scientific discoveries, but nothing to change the central holding
5) Have the facts come to be seen differently so that the old rule has been robbed of its application or justification?
The central holding unweakened

13. Planned Parenthood of Southeastern Pennsylvania v. Casey- VII
More on stare decisis from the three
They look to the lines of cases that have been overruled
Lochner v. New York (1905) and Adkins v. Children’s Hospital (1923) were overruled by West Coast Hotel v. Parrish (1937)
Overturned because they relied on fundamentally false assumptions
Plessy v. Ferguson (1896) overruled by Brown v. Board of Education (1954)
Facts had changed over time
These situations do not apply to Roe
Overturning Roe could call into question the Court’s legitimacy

14. Planned Parenthood of Southeastern Pennsylvania v. Casey- VIII
We are not done from these three
They put limits on the right to an abortion
New standards by the Court to apply to abortion regulations
Adoption of undue burden test if the purpose of the law or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus is viable
The trimester framework of Roe is rejected
The state may seek to make sure the choice of a woman is informed, but it may not pose an undue burden
The state may regulate health and safety of a woman seeking an abortion so long as those regulations do not place an undue burden on the woman
The state may not prohibit a women from obtaining an abortion before viability
The state does have an interest post-viability

15. Planned Parenthood of Southeastern Pennsylvania v. Casey- IX
Application to the Pennsylvania Law
Most of the regulations survive the challenge under this standard of review
Informed consent not an undue burden
Affirms previous precedent on the parental consent with a judicial bypass
The recordkeeping provisions alright except on the spousal issues
Some fail
Spousal notification can make the right non-existent
Record keeping provision with regard to whether the woman has notified her spouse

16. Planned Parenthood of Southeastern Pennsylvania v. Casey- X
Blackmun, J. concurring in part, concurring in judgment in part, and dissenting in part
He recognizes their courage in this opinion
Likes they upheld the fundamental holding of Roe
But would keep the strict scrutiny standard in place as well as the trimester framework
This would mean for him to invalidate all the provisions of the act
He then acknowledges that one vote could overrule Roe
The majority and dissent worlds apart
Abortion should be an issue at confirmation hearings for his successor
He seems to acknowledge he will leave the Court at some point

17. Planned Parenthood of Southeastern Pennsylvania v. Casey- XI
Stevens, J. concurring in part and dissenting part
He sees a different understanding of an undue burden
It is too severe or lacks a legitimate rational justification
He finds the 24 waiting period an undue burden

18. Planned Parenthood of Southeastern Pennsylvania v. Casey- XII
Rehnquist, C.J. joined by White, Scalia, and Thomas, JJ. Concurring in judgment in part and dissenting in part
They would have overruled Roe
They say that the plurality leave only a shell of Roe left
Abortion different from contraception, procreation or marriage as it ends potential life
The decision to abort involves the destruction of a fetus
Long history of abortion being illegal after the 14th Amendment
Court should reconsider this case the cases they chose in comparing what could be overruled were not grounded properly themselves should have been overruled
Undue burden standard less grounded constitutionally than strict scrutiny
They would apply rational basis as the test
That would have all the regulations be upheld

19. Planned Parenthood of Southeastern Pennsylvania v. Casey- XIII
Scalia, J. joined by Rehnquist, C.J., White and Thomas, JJ. Concurring in judgment in part and dissenting in part
Abortion is not a liberty protected by the Constitution
Constitution says nothing about it
It was long banned before Roe
Rational basis would mean all parts of the statute upheld
He brings up the Dred Scott case where the Court thought they were taking the issue off the political table
This should be left to the people to decide, not the courts

20. Next Lecture Chapter 10 More on Abortion Rights Pages 425-427
The Right to Abortion III
Partial birth abortion laws
Whole Women’s Health v. Hellerstedt (2017)