It was assumed by most observers of the Court in 1992 that Planned Parenthood v Casey would be the vehicle for for overturning Roe. Instead, three swing members of the Court (Souter, O'Connor, Kennedy) joined in an opinion retaining the core right recognized in Roe while rejecting the trimester-based framework. The three justices used stare decisis to justify their decision. Casey leaves courts to grapple with abortion regulations through application of a new test: Does the regulation in question place an undue burden on a woman's right to choose an abortion? Using this new test, courts have upheld some abortion regulations (such as 24-hour waiting periods) while striking down others.
Roe v Wade is Overruled by Dobbs
Fifty years of constitutional protection for the right to choose an abortion came to end in 2022, when the Court, by a 5 to 4 vote, decides overrule Roe v Wade in the case of Dobbs v Jackson Women's Heath Center. In an opinion written by Justice Alito the Court said that the right of abortion lacked any textual grounding in the Constitution and was grossly wrong the day it was decided. Moreover, Alito wrote, none of the reasons for behind the policy of stare decisis were applicable in the case of a right to an abortion, dismissing (for example) that there is any serious reliance issue at stake and suggesting that the "undue burden" test of Casey has proved unworkable. While Alito's opinion stated that the decision need not case doubt on other decisions resting on the constitutional right to privacy (e.g., the right to contraceptives or privacy protection for consensual sexual activities between adults), the logic of the opinion suggests otherwise and Justice Thomas, in a concurring opinion, made clear his desire to revisit those cases. The decision sends the question of abortion rights back to the 50 states, or to the federal government, which are now free to protect or restrict abortion rights as they choose. Chief Justice Roberts, in a concurring opinion, would have upheld the Mississippi ban on abortions after 15 weeks, but did not join in the decision to overrule Roe, noting that it was not necessary to deciding the case befiore the Court. Writing for the three dissenters, Justice Kagan expressed sorrow for "the many millions of women who have today lost a fundamental constitutional protection."
Roe v. Wade (1973)
Planned Parenthood v. Casey (1992)
Dobbs v Jackson Women's Heath Center (2022)
The Due Process Clause:
No State shall...deprive any person of life, liberty,
or property, without due process of law.
2. Is the right of privacy implicated when a woman has an operation performed on her in a public place (hospital or clinic) by a person she probably barely knows?
3. Which seem closer to the core of an intelligible privacy doctrine--an abortion or consensual sex between adults?
4. If you believe that the Constitution doesn't protect the right to choose an abortion, does it prevent a state from requiring that all couples be sterilized after the birth of their second child? If the Constitution does prevent the latter, where is the prohibition found?
5. Might there be a constitutional right that protects the liberty of doctors to give the medical care that they see fit?
6. Why isn't the state interest in protecting life compelling until viability?
7. Is there a state interest in preserving respect for life that is weakened by allowing abortions? If abortions are not immoral, would you call them morally dubious? Why is infanticide morally wrong (if you believe that to be the case) and abortion not immoral?
8. On the other hand, why is aborting a first-trimester fetus (before the fetus has significant neurological development, emotions, or any other critical attributes of humanness) any more more immoral than killing, for example, pigs that do have thoughts and emotional lives? Could you argue, in fact, that killing a pig is the more immoral act?
9. Is the argument for extending full protection to a one-month -old embryo really a religious argument?
10. Who has the better of the argument on the issue of stare decisis and the Roe--Justice Scalia or the three swing justices?
11. When is a regulation an "undue burden"? Where does this test come from? If the right to choose is really a constitutional right, why go on to ask whether the regulation unduly burdens that right? Do we ask whether a modest tax on public speaking would unduly burdens speech?
12. After Dobbs, many states quickly imposed near total bans on abortion and threatened legal action against state residents who traveled out of state, or assisted a woman in traveling out of state, to get an abortion. Do such laws violate the constitutional right to travel? How will this all play out/
Comparison of the Roe and Casey Regulatory Frameworks
|Right to Abortion: Casey v
Planned Parenthood of Pennsylvania (1992)
|The Court ruled 5 to 4 to
affirm the central holding of Roe v
women have a right to have an abortion. In so
doing, three justices (Kennedy, O'Connor, and Souter)
abandoned the rigid trimester framework of Roe and announced that states
had a right to regulate in the field so long as the
regulations placed no "undue burden" on the right of
women to have an abortion. Blackmun and Stevens
would have affirmed Roe in its entirety. The
four dissenting justices would have overruled Roe.
Gonzales v Carhart (2007)
|The Court, voting 5 to 4,
upheld a federal law banning so-called "partial birth
abortions" (which Congress declared were "never
medically indicated") . The Court, in an
opinion by Justice Kennedy, did not rule out "as
applied" challenges to the law.