The "Casey" plurality stated: "Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the story of intensely divisive controversy reflected in "Roe" and those rare comparable cases, its decision
has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the
Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution."
With these words, it became clear that, in the view
of these three self-perceived moderate justices, the biggest error in the first two decades after "Roe" was the decision by the anti-abortion side of the national debate to continue speaking out and fighting the issue.
Liberty to define one's own concept of mystery of human life
Planned Parenthood v Casey, the Supreme Court's 5-4 decision in June 1992 upholding the right to abortion [said]: "At the heart of liberty is the right to define one's own concept of existence, of the universe, and of the mystery of human life." From the
founders' belief in "created equal" [by God], this language travels to the furthest opposite pole of individual self-definition, verging on self-creation.
Legal and social conservatives soon came to refer to these words as the "Mystery Passage."
The opinion was particularly galling because it was composed by 3 Republican justices--Sandra Day O'Connor, Anthony Kennedy, and David Souter--who had now provided the decisive swing votes to uphold Roe. These three clearly saw themselves as reasonable
centrists, underlining the transformation of the global left after the 1960s from a mainly economic to a mainly social movement. It also makes clear that moral relativism and open-ended human freedom MUST become far and away the highest political good.
In Ayotte v. Planned Parenthood of Northern New England, a challenge to a New Hampshire law that prohibits doctors from performing an abortion on a minor until 48 hours after a parent has been notified is heard. The Supreme Court rules that the
government cannot restrict abortions when one is required during a medical emergency.
OnTheIssues explanation: The court did not rule against "parental notification" in general; in other words, states can decide if and when a minor girl's
parents must be notified. But the court imposed restrictions: if the minor girl's life is in danger, her right to an abortion overrules the state's requirement for parental notification. Justices in the majority agree that the right to an abortion for
maternal health is the higher priority (a pro-choice stance); justices in the minority say that parental notification has the higher priority (a pro-life stance).
Opinions: O`Connor wrote majority opinion; all 8 other justices concurred.
2000: Overturn state ban on partial-birth abortion
On several large issues (with federalism a notable exception), Justice O'Connor & Justice Stephen Breyer were solidly together. Their growing judicial kinship was evidenced most proactively on partial-birth abortion, the most controversial social-issues
case of recent years. Along with 30 other states, Nebraska had outlawed this particularly grisly abortion method. [In 2000], the Court still overturned Nebraska's ban. The states were to be severely limited in their regulation of specific medical
procedures used in the abortion context.
On the subject of partial-birth abortion, it was altogether natural that the writing assignment fell to Justice Breyer (made by the senior justice in the majority, Justice Stevens) to write the deeply
controversial majority opinion invalidating the state law prohibiting the procedure. No one else would so likely win the vote of Justice O'Connor (to the dismay of Justice Kennedy) on this wrenching subject.
In abortion, Justice O'Connor crafted what became the law of the land. She had fashioned a concept--now governing the law of abortion--dubbed "undue burden." That is, the state may regulate, but not prohibit (the "core holding" of Roe v Wade), pre-
viability abortions so long as those regulatory controls do not constitute an "undue burden" on the woman's right to choose.
The origins of O'Connor's test were entirely unclear. A doctrine by the same name, undue burden, existed in a completely
unrelated arena: the law of the Commerce Clause.
Does the requirement of a 24-hour waiting period to the actual performance of the abortion "unduly burden" a woman's Roe v Wade-protected right to choose? What about parental notification? The result of
a particular challenge--yes, it's an undue burden or no, it's not--depends entirely on judicial judgment. On the spectrum of decision-making, this is at the polar opposite of relying on the text and structure or history of the Constitution.
Following a series of cases restricting Roe, the Supreme Court reaffirmed Roe's underlying validity. The Court gave weight to the fact that a generation of women had come of age relying on the availability of reproductive choice. Justices O'Connor,
Kennedy, and Souter delivered the opinion of the Court:
"After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential
holding of Roe v. Wade should be reaffirmed. Roe's essential holding has three parts:
The right of the woman to choose to have an abortion before viability, without undue interference.
The State's power to restrict abortions after fetal
viability, if the law contains exceptions for the woman's life or health.
The State's legitimate interests in protecting the health of the woman and the life of the fetus.
"These principles do not contradict one another, and we adhere to each."
Constitutional analysis of Roe: abortion is a right
It is a constitutional liberty of the woman to have some freedom to terminate her pregnancy. We conclude that the basic decision in Roe was based on a constitutional analysis which we cannot now repudiate. The woman's liberty is not so unlimited,
however, that from the outset the State cannot show its concern for the life of the unborn, and at a later point in fetal development the State's interest in life has sufficient force so that the right of the woman to terminate the pregnancy can be
That brings us to the criticism that always inheres when the Court draws a specific rule from what in the Constitution is but a general standard. We conclude that the urgent claims of the woman to retain the ultimate control over her
destiny and her body, claims implicit in the meaning of liberty, must not be extinguished for want of a line that is clear. And it falls to us to give some real substance to a woman's liberty to determine whether to carry her pregnancy to full term.
Justice O'Connor wrote the Court's decision on PLANNED PARENTHOOD v. CASEY on Jun 29, 1992:
At issue are five provisions of the Pennsylvania Abortion Control Act of 1982:
requiring a 24-hour “informed consent” waiting period before the abortion is performed;
mandating the consent of one parent for a minor to obtain an abortion, with a judicial bypass procedure;
requiring notification of the husband;
defining a “medical emergency” that will excuse compliance with the foregoing requirements;
imposing reporting requirements on facilities providing abortion services.
(Written by O’Connor, Kennedy, and Souter; joined in part by Stevens and Blackmun) Liberty finds no refuge in a jurisprudence of doubt. Yet, 19 years after our holding that the Constitution protects a woman’s right to terminate her pregnancy in its early stages, Roe v. Wade (1973), that definition of liberty is still questioned. We are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed, in three parts:
The right of the woman to choose to have an abortion before viability.
The State may restrict abortions after fetal viability if the law contains exceptions for pregnancies which endanger the woman’s health.
The State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.
(Rehnquist, joined in part by White, Scalia, and Thomas) The joint opinion, following its newly minted variation on stare decisis, retains the outer shell of Roe v. Wade, but beats a wholesale retreat from the substance of that case. We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases. We would adopt the approach of the plurality in Webster v. Reproductive Health Services (1989), and uphold the challenged provisions of the Pennsylvania statute in their entirety.
Source: Supreme Court case 92-1 argued on Apr 22, 1992
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