Changes in the U.S. Supreme Court’s composition in the 1980’s and early 1990’s led abortion opponents to believe that a majority of justices might eliminate women’s constitutionally protected right of choice. Instead, a majority of justices continued to endorse a right of choice, but the Court’s jointly authored majority opinion in the case of Planned Parenthood of Southeastern Pennsylvania v. Casey expanded opportunities for states to impose regulations that affect abortion.
The U.S. Supreme Court’s decision in Roe v. Wade (1973),
Throughout the 1980’s, whenever a Supreme Court justice retired, President Ronald Reagan sought to appoint a replacement who would vote to overturn Roe v. Wade and thereby eliminate American women’s right to obtain abortions. When the Court examined new restrictions that the state of Missouri sought to impose on the availability of abortions in 1989, all three of Reagan’s appointees, Justices Sandra Day O’Connor, Antonin Scalia, and Anthony Kennedy, joined the two dissenters from the original Roe v. Wade decision, Chief Justice William H. Rehnquist and Justice Byron White, to approve the restrictions (Webster v. Reproductive Health Services, 492 U.S. 490).
By 1992, only one justice, Harry A. Blackmun, remained on the Supreme Court from the original seven-member majority that established the right of choice in Roe v. Wade. President George H. W. Bush followed President Reagan’s lead in promising to appoint new justices who would oppose the right of choice. However, neither of Bush’s appointees in the early 1990’s, Justices David Souter and Clarence Thomas, had demonstrated a clear position on the abortion issue prior to joining the Supreme Court. Because Souter and Thomas replaced two members of the original seven-member majority in Roe v. Wade, it was widely assumed that the right to obtain abortions might be eliminated in the Supreme Court’s next case considering the issue. Based on the Court’s decision in Webster v. Reproductive Health Services, if any one justice from among O’Connor, Souter, and Thomas voted to overturn Roe v. Wade, that would provide the fifth vote to eliminate the right of choice.
Activists for and against abortion face off outside the Supreme Court building shortly after the Court upheld restrictions on abortion set forth in a Pennsylvania law.
In 1992, the Supreme Court heard arguments in Planned Parenthood of Southeastern Pennsylvania v. Casey. Governor Robert P. Casey of Pennsylvania had successfully advocated the passage of new laws to regulate abortions in his state. Among the provisions in the state law was a requirement that at least twenty-four hours before performing an abortion, the physician must inform the woman about the health risks of abortion, probable gestational age of the fetus, and the availability of printed material about adoption services as alternatives to abortion. Another provision required a married woman seeking an abortion to verify that she had informed her husband about the planned abortion unless certain specified exceptional circumstances existed. An additional provision required a minor female to obtain the consent of one of her parents or a judge before obtaining an abortion. Five abortion clinics and one physician filed a legal action alleging that these laws violated women’s right of choice as established in Roe v. Wade.
Although Supreme Court opinions are usually written by a single justice, in the case of Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court issued an extraordinary majority opinion jointly authored by three justices, Sandra Day O’Connor, David Souter, and Anthony Kennedy. These three justices formed the core of a five-member majority that preserved Roe v. Wade and women’s right of choice with respect to abortion. However, the opinion also softened the Court’s analysis of states’ abortion regulations by replacing the original analysis in Roe v. Wade with an “undue burden” test. Under this test, state laws regulating abortion are permissible as long as they do not impose an undue burden on a woman’s right of choice.
Previously, under the standards of Roe v. Wade, states were barred from regulating abortion during the first three months of pregnancy and could impose in the second three-month period only regulations that were necessary to protect the health of the mother. After the decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, states could create a variety of regulations affecting abortions throughout the term of a pregnancy, as long as those regulations did not impose an undue burden on women’s opportunity to choose to have an abortion. In applying the new test to Pennsylvania’s laws, the three-justice majority opinion approved the provisions except for the spousal notification requirement, which the justices feared could lead to domestic violence in some situations.
Supporters of a right of choice for abortion were relieved that a narrow five-member majority on the Supreme Court declined to overturn Roe v. Wade and thereby preserved women’s opportunities to choose to terminate their pregnancies. The survival of the Roe precedent depended on Justice Kennedy’s parting company with the critics of abortion with whom he had joined in Webster v. Reproductive Health Services. Justice O’Connor, who had previously declined to rule on the continuing validity of Roe v. Wade, and newcomer Justice Souter, who had never stated a position on abortion, both made it clear that they supported a continuation of the right of choice.
Although the Supreme Court’s decision in Planned Parenthood of Southeastern Pennsylvania v. Casey preserved the right of choice, it simultaneously made it much easier for state legislatures to impose regulations on abortion providers, including regulations that could affect certain aspects of abortion counseling and other matters affecting women seeking to terminate early-stage pregnancies. The Supreme Court had previously looked closely at a variety of abortion-related laws enacted by state legislatures and city councils. Under the new test focusing only on laws that created an undue burden on the right of choice, the Supreme Court effectively announced that it would no longer give close scrutiny to all legislative activity affecting abortion providers and women seeking to terminate pregnancies. Women still possessed the right of choice, but they faced the possibility of brief, mandated waiting periods, counseling that included information intended to discourage abortions, and other regulations designed by legislators who were seeking to reduce the numbers of women who would ultimately choose to have abortions.
Legal analysts saw the Supreme Court’s decision as weakening the right of choice by permitting various regulations that would previously have been impermissible under the standards originally established in Roe v. Wade. The decision also illuminated the deep divisions among the Court’s nine justices and thereby encouraged abortion opponents to push for the subsequent appointment of additional new justices who might tip the balance in favor of eliminating the right of choice.
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Biskupic, Joan. Sandra Day O’Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice. New York: Ecco Press, 2005. Comprehensive biography draws on interviews with O’Connor and other justices. Includes detailed coverage of Planned Parenthood of Southeastern Pennsylvania v. Casey, for which many analysts believe O’Connor was the lead author in the three-justice opinion. -
Craig, Barbara Hinkson, and David M. O’Brien. Abortion and American Politics. Chatham, N.J.: Chatham House, 1993. Presents detailed analysis of the historical development of judicial decisions and statutes affecting abortion rights, concluding with coverage of the Supreme Court’s decision in Planned Parenthood of Southeastern Pennsylvania v. Casey. Illuminates the political context in which states created abortion regulations that were challenged in the Supreme Court. -
Greenhouse, Linda. Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey. New York: Times Books, 2005. Uses Justice Blackmun’s papers to show the inside story of the Supreme Court’s development of decisions on abortion, including the justices’ behind-the-scenes interactions in developing their decision in Planned Parenthood of Southeastern Pennsylvania v. Casey. -
Yarbrough, Tinsley E. David Hackett Souter: Traditional Republican on the Rehnquist Court. New York: Oxford University Press, 2005. Discusses Souter’s role on the Supreme Court, including his involvement in the development of the three-justice majority opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey.
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