2.1What happened in the states between Roe and Casey?
After Roe, some states continued placing restrictions on abortion, and made the procedure increasingly difficult to get. Pro-choice activists took these laws to court with mixed results. The Supreme Court dealt with a handful of these challenges, but none directly challenged the legality of abortion as outlined in Roe.
2.2What was the Pennsylvania law in question?
In 1982, Pennsylvania enacted the Pennsylvania Abortion Control Act, which established regulations for women seeking abortions. These included requirements that married women notify their husbands, that women under 18 obtain parental permission, that women wait 24 hours between an initial consultation and the procedure, and that facilities report the number of abortions performed. The law’s supporters argued that it protected women’s health and safety while staying within the bounds of the Constitution as defined in Roe v. Wade.
2.3What was the case against the law?
The challengers, comprised of several abortion clinics and physicians, argued that all of these restrictions violated a woman’s right to an abortion as guaranteed by Roe v. Wade. The challengers explained that women who would be forced to notify their husbands risked psychological and physical abuse. The mandatory parental permission provision required at least one doctor visit by the parents, potentially delaying the process. The challengers additionally argued that the law’s mandatory waiting period ensured each woman would have to make two trips to an abortion clinic; this would prove to be very difficult, if not impossible, for women from rural areas traveling hundreds of miles for the procedure. Even though the question of whether to overturn Roe was not directly asked, it was being implicitly debated.
2.4How had the Court changed since Roe?
The Supreme Court had changed drastically in the 30 years since its decision in Roe. Every justice who joined the bench after Justice Harry Blackmun, who wrote the opinion in Roe, had been appointed by a conservative president. With a bench dominated by appointees of Presidents Reagan and Bush, it seemed very likely that the right to abortion would be overturned.
2.5What happened in oral arguments?
Kathryn Kolbert, the advocate for Planned Parenthood, emphasized the right to privacy and stare decisis. She argued that the Court had already decided the issues when they decided Roe. Ernest Preate, the advocate for Pennsylvania, argued that their statute affected a minority of women, so the petitioners’ worst-case scenario arguments were rare. He also argued that the Court should it was within the boundaries set by Roe. Kenneth Starr, the U.S. Solicitor General, argued that the state has an interest in regulating the lives of its potential citizens.
An interesting point that came up in arguments concerned “undue burden”, which had been briefly mentioned in a previous opinion, City of Akron v. Akron Center for Reproductive Health (1983). The phrase referred to measures meant to discourage abortions, and to what degree these measures would be considered overly restrictive. Justice John Paul Stevens asked whether the burden counted quantitatively, meaning the number of people affected, or qualitatively, meaning the level of burden on one person specifically. The state argued it was quantitative, whereas Planned Parenthood argued for qualitative.
2.6What did the decision say?
After initially voting to uphold the Pennsylvania statute with the potential to overturn Roe, three justices joined together to craft a more moderate opinion. Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter coauthored a plurality opinion that proposed a middle ground and upheld Roe, but changed some of the specifics of abortion requirements by introducing the “undue burden” test. The opinion walked a fine line and made clear that although some justices might be personally opposed to abortion, they would respect the Court’s prior ruling.
While the Court voted to uphold Roe, they did find that most of the regulations in the Pennsylvania statute did not create an undue burden on women seeking abortion. The only provision the Court found unconstitutional was the requirement that women inform their husbands before an abortion. The opinion discussed domestic abuse, and the fear many women may have of informing their husbands they are considering an abortion.
Furthermore, the trimester approach established by Justice Blackmun in Roe was exchanged for a viability approach. Under this method, states were allowed to regulate abortion after the fetus had reached viability, the point at which the fetus could survive outside of the womb. The three coauthors reasoned that with medical advances, viability would be found earlier in pregnancy as time went on.
2.7What did the dissent say?
Chief Justice William H. Rehnquist wrote that abortion was not a constitutional right. He argued that Roe had been decided wrongly, and that overturning it would have been the correct course of action. He criticized the middle ground put forward in the majority opinion.
Justice Antonin Scalia wrote an angry dissent as well, joined by Chief Justice Rehnquist and Justices Byron White and Clarence Thomas. For Justice Scalia, abortion was not a constitutionally-protected right for two reasons: It’s not in the Constitution, and there was a long history of states prohibiting abortion. In other words, abortion was not something to be determined by the judiciary; it was not something to be protected by the federal government.
2.8What happened next?
This decision set a new national precedent for abortion regulations. The concept of "undue burden" became the test of whether proposed regulations would be allowed pre-viability. But “undue burden” is a fairly vague phrase. How much burden is undue? Is the burden qualitative, meaning it affects each woman individually too much, or quantitative, meaning it affects too many women? Would it be a burden to regulate the procedure itself, or the qualifications of the woman seeking it, or the number of clinics allowed in a state? Over the following years, the Court struggled to find a consistent answer.
2.9Video: How did abortion law change from Roe to Casey?
- This case is actually more in effect in terms of federal abortion law than Roe v. Wade is. It established what standards abortion laws are judged by, and the viability test replaced the trimester standard.
- The justices originally voted in conference to overturn Roe v. Wade, and Chief Justice Rehnquist was going to write the opinion. Justice Harry Blackmun had already begun writing his dissent when Justices O’Connor, Kennedy, and Souter formed their coalition to find a middle ground and preserve Roe while tightening regulations.