Abortion and the Constitution (Update 2a)

• Author: Elizabeth Mensch
• Pages: 11-14

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Politically and jurisprudentially, PLANNED PARENTHOOD V. CASEY (1992) is a complex case whose strengths are inextricably intertwined with its weaknesses. Those strengths include a political PRAGMATISM that helped to mute abortion conflict, combined with a PRECEDENT constrained and sensitively nuanced DUE PROCESS methodology rooted in COMMON LAW tradition and the legacy of the second Justice JOHN MARSHALL HARLAN. Weaknesses include the failure to articulate a clear, principled STANDARD OF REVIEW and a logically satisfying theory of abortion rights.

The decades prior to Casey had been marked by bitter abortion controversy. The promise of autonomy and gender equality implicit in abortion rights confronted a tradition-based insistence that the value of human life is not a subject appropriately open, relativistically, to unfettered personal choice. In 1973, ROE V. WADE had announced a fundamental RIGHT OF PRIVACY to choose abortion throughout the first two trimesters (protected by a STRICT SCRUTINY standard of review for restrictions during the first trimester, and allowing only restrictions rationally

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related to maternal health during the second). But Roe had exacerbated conflict, not molded consensus, and by 1992 many expected Roe to be OVERRULED. Only three Justices of the Roe Court remained on the bench, and two were Roe dissenters. Five sitting Justices were appointed by either President RONALD REAGAN or President GEORGE H. W. BUSH, both of whom ran on high-profile pro-life platforms. Meanwhile, in WEBSTER V. REPRODUCTIVE HEALTH SERVICES (1989), the Supreme Court had upheld not only a highly restrictive public facilities ban but also a viability test requirement effective at twenty weeks, thereby undercutting the trimester framework of Roe. Justices HARRY A. BLACKMUN and ANTONIN SCALIA (respectively, the author of Roe and the harshest critic of Roe) argued that Webster effectively overruled Roe, although a majority refused to take that step explicitly. Then the Court, in subsequent cases, upheld parental notification requirements and allowed a forty-eight?hour waiting period while still refusing to overrule Roe.

Justice SANDRA DAY O'CONNOR emerged as the pivotal figure in the Court's abortion law. O'Connor had consistently criticized the trimester framework of Roe and had argued that states could legitimately regulate abortion any time after conception so long as the resulting restrictions did not impose an "undue burden" on a woman's choice to abort before viability. O'Connor refused, however, to argue that Roe should be overruled, thereby inviting Scalia's scathing contempt.

In Casey, O'Connor's undue burden test became the definitive "middle ground" between those voting to uphold Roe in its purity (Blackmun and JOHN PAUL STEVENS) and those voting to overrule it (Scalia, WILLIAM H. REHNQUIST, BYRON R. WHITE, and CLARENCE THOMAS). Joined only by DAVID H. SOUTER and ANTHONY M. KENNEDY and denounced by both sides in the bitter abortion controversies, O'Connor's approach became controlling law and probably resonated with the moral ambivalence most Americans felt about abortion. At issue were five provisions of a Pennsylvania statute: informed consent, a twenty-four?hour waiting period with counseling, parental consent, spousal notification, and mandatory reports and records. Upholding all but the spousal notification provision, the joint opinion reaffirmed Roe by recognizing a constitutionally protected liberty interest...