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 (1973)
Planned Parenthood v. Casey (1992)
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?
Comparison of the Roe and Casey Regulatory Frameworks
to Abortion: Casey
v Planned Parenthood of Pennsylvania (1992)
|The Court ruled 5 to 4 to
central holding of Roe v Wade, that women have a right
to have an
abortion. In so doing, three justices (Kennedy,
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
justices would have overruled Roe.
|The Court, voting 5 to 4,
upheld a federal
law banning so-called "partial birth abortions" (which
declared were "never medically indicated") .
in an opinion by Justice Kennedy, did not rule out "as
challenges to the law.