Taryn Parsons

AP Government

Abortion Dockets

Planned Parenthood of Southeast Pennsylvania, et al. v. Robert P. Casey, et al.

Roe v. Wade in the early 1970s was the primary case, which set the constitutional standards for state abortion laws. By the late 1980’s and early 1990’s, however, a religious and political movement began in which the leaders of the Christian Coalition and the Moral Majority posed questions regarding the morality (and thus the legality) of abortion. During this time, people, shockingly including "Roe," began to reconsider the sinfulness of an abortion, igniting the debate about a fetus' right to life. Thus, as religious concerns increased,  the Supreme Court began to allow more restrictions on abortion as was seen in Planned Parenthood v. Casey in 1992.

[i] William Rehnquist was the Chief Justice during this time, and he was known to be highly conservative and to favor a system in which states had a significant governmental power.  It is easy to see, therefore, why state abortion laws were allowed to be more restrictive under his court.

In the case of Planned Parenthood v. Casey case, the Supreme Court was presented with the question of “can a state require women who want an abortion to obtain informed consent, wait 24 hours, and, if minors, obtain parental consent, without violating their right to abortions as guaranteed by Roe v. Wade?”[ii] This question was brought forth after the Pennsylvania legislature amended the five provisions of the Pennsylvania Abortion Control Act of 1982. The act thus calls for a woman seeking an abortion to give an informed consent before the abortion takes place and be provided with important information at least 24 hours before the operation. The act also requires that a minor must receive parental consent if she has not obtained the judicial bypass allowing her to get around the law if she does not wish to or cannot get parental consent. Additionally, a married woman must sign a waver expressing that she has informed her husband of the abortion, unless in the case of a medical emergency.

[iii]

Before these provisions came into effect, five abortion clinics and one physician representing himself and a group of other physicians who provided abortion services brought suit. The Supreme Court accepted the appeal, but for the first time, the justices imposed a new standard in deciding the weight of laws restricting abortions. The Supreme Court, under Rehnquist, thus placed the rational relationship test as the sole criteria of constitutionality. After deliberating, the justices declared that the essential holding of Roe v. Wade should be continued and reaffirmed. They thus recapped on what the essential terms of Roe v. Wade were,  declaring:

1.     Women have the right to choose to have an abortion before the fetus is developed enough to be able to survive outside the womb, and to obtain it without undue interference from the State. For before the fetus is of that age, the State does not have the power to prohibit an abortion or place obstacles in a woman’s way who wants such an operation.

2.      A States has the power to restrict abortions after the fetus is in the state of which it can survive outside the womb. This applies only if the law contains exceptions for pregnancies that cause harm to the woman’s life or health.

3.     The State has the right, from the beginning of pregnancy, to protect the health of the woman and the life of the fetus, which may become a child.

[iv]

In addition to the precedent set forth by Roe v. Wade, the court also took into consideration the Fourteenth Amendment. Under this amendment, a woman’s decision to end her pregnancy is constitutionally protected under the Due Process Clause. The Due Process Clause thus states, "that no State shall deprive any person of life, liberty, or property, without due process of law.”[v] The Supreme Court considered this case a breach of liberty in the Due Process Clause, for although the clause infers that a State may not deprive someone of liberty, it also ensures that all essential rights held within the term liberty are protected against State invasion, under the Federal Constitution.

[vi]

            In conclusion, the Supreme Court’s ruling in Planned Parenthood v. Casey was based of the notion that generally no two people, a man and a woman, can always agree on the profound moral and spiritual implications of abortion, no matter what stage of pregnancy. Due to this reasoning, it is unfair to mandate that a woman get the consensus of her husband before termination, and only exempting cases of medical danger. The court thus states that the underlying questions must now become, “whether the State can resolve these philosophical questions in such a definitive way that a woman lacks all choice in the matter, except perhaps in those circumstances in which the pregnancy is itself a danger to her own life or health, or is the result of rape or incest?”[vii] To this question, the Supreme Court declared that a State may not put one view over another of opposition into law and that the Constitution protects peoples' personal decisions regarding marriage, procreation, contraception, family relations, child rearing, and education, so why should abortion be exempt. Finally, the Court recognized that Pennsylvania’s new act interferes with the right of “an individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

[viii]

            To wrap up, in the Planned Parenthood of Southeastern Pennsylvania v. Casey the Supreme Court, in a 5 to 4 decision, reaffirmed the primary terms of Roe v. Wade, that a woman has the right to an abortion before the fetus is able to survive outside the womb, but still gives states the power to restrict access to abortions as long as it does not impose as an "undue burden," defined as a substantial obstacle in which a woman wanting an abortion must overcome before the fetus is no longer able to be aborted. Although the states were allowed to have these restrictive powers and had other stipulations including parental involvement, mandatory waiting periods, and counseling; the requirement for women to involve her husband was dissolved.

[ix]

            Overall, I believe that women should have the right to have an abortion, before the fetus is of a viable state, for it is their body and their liberty, as the justices in favor stated. I agree thus that a woman should not have to tell her spouse if she wants to have an abortion, for yet again, it is not his body but hers. I do believe though, she should tell her husband out of option and respect. I thus agree with the Supreme Court's decision to terminate that clause in Pennsylvania’s Act. Although, as a justice I would have to dissent for I do not agree with the Court's decision which makes it difficult for women to succeed in challenging laws in state’s prohibition of abortion, due to the undue-burden tests. These tests make it almost impossible for women to receive their right to an abortion in restrictive states because in order to succeed, the law must be shown to purposefully intended to create an obstacle in the path of an abortion seeking woman.