Monday, July 25, 2011

Understanding Planned Parenthood v. Casey: A landmark abortion decision

In 1992 the biggest abortion-related case since Roe v. Wade came before the U.S. Supreme Court. In Planned Parenthood v. Casey, the Court was asked to consider the constitutionality of five provisions of Pennsylvania's Abortion Control Act. They are as follows:

1. A woman seeking an abortion must give her informed consent before the procedure and be provided with certain information (e.g., information about the health risks of abortion) at least 24 hours before the abortion is performed.

2. The informed consent of one parent must be obtained before a minor undergoes an abortion, but a judicial bypass procedure is available.

3. A married woman seeking an abortion must sign a statement indicating that she has notified her husband, unless certain exceptions apply (e.g., spousal abuse).

4. A "medical emergency" will excuse compliance with the other provisions.

5. Abortion-providing facilities must abide by certain reporting requirements.

The decision

The Court upheld four of the five provisions, rejecting only the third requirement based on an "undue burden" standard (explained below). It also decided that the "essential holding of Roe v. Wade should be retained and once again reaffirmed." That "essential holding" is that a woman has a right to abortion before the point of fetal viability, and that abortion may be restricted after viability, but only if there are maternal life and "health" exceptions.

The plurality opinion was written by Justices Anthony Kennedy, Sandra Day O'Connor and David Souter. Kennedy, O'Connor, Souter, Harry Blackmun and John Paul Stevens formed the majority of five that decided to uphold Roe. Dissenting justices William Rehnquist, Byron White, Antonin Scalia and Clarence Thomas believed that Roe should have been overturned.

Modifications to Roe

Despite upholding the "essential holding" of Roe, the Court in Casey made three major modifications to its abortion jurisprudence.

First, the Court discarded Roe's trimester framework, which it considered too rigid and not necessary to protect a woman's right to abortion. But it reaffirmed (as Roe also concluded) that "viability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions."

Second, Casey changed the standard the Court uses to determine the validity of laws regulating pre-viability abortions. In Casey the Court adopted an "undue burden" standard, which requires only that a state not place a “substantial obstacle [undue burden] in the path of a woman seeking an abortion of a nonviable fetus.” Using this standard, the Court upheld measures identical to laws it had previously struck down as unconstitutional (e.g., the informed consent law). "Though the woman has a right to choose to terminate or continue her pregnancy before viability, it does not at all follow that the State is prohibited from taking steps to ensure that this choice is thoughtful and informed," the Court reasoned.

Third, the Court still grounded the right to abortion in the "liberty" component of the Due Process Clause of the Fourteenth Amendment, but no longer did it talk of a "right of privacy." Instead, the Court seemed to base the right to abortion on a "right to personal autonomy." Casey explained:
Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. ... These matters involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
This famous passage, sometimes called the "mystery passage," has been subject to enormous criticism. If "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life" requires that we permit the killing of unborn human beings, why does it not also require that we permit the killing of adult human beings—or the committing of any kind of atrocity whatsoever? The Court's explication of "liberty" is only plausible as a defense of abortion if one assumes that abortion does not involve the killing of a rights-bearing human person (as does killing adult human beings), an assumption the Court never recognizes or bothers to defend.

Legal scholar M. Edward Whelan III concludes, "What the Court's ['mystery'] declaration really means is that the Court is claiming the unconstrained power to define for all Americans which particular interests it thinks should be beyond the bounds of citizens to address through legislation."

The viability criterion

In Casey, the Court argued as follows for the conclusion that viability is the point at which the state has a serious interest in protecting fetal life: "Viability, as we noted in Roe, is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman."

As philosopher Francis J. Beckwith writes, this argument is fallacious:
For the Court to make its argument valid, it would have to add to its factual premise [the fact of fetal nonviability through roughly the first six months of pregnancy] the normative premise: whenever a human being cannot live on its own because it uniquely depends on another human being for its physical existence, it is permissible for the second human being to kill the first to rid the second of the burden.
That controversial view was assumed (not argued for) by the Court in both Roe and Casey.

An appeal to stare decisis

Many observers predicted the Court would use Casey to overturn Roe v. Wade, and it nearly did (reportedly, Justice Anthony Kennedy changed his mind during the course of the debate and became the decisive fifth vote to uphold Roe). Why was the poorly-decided Roe upheld?

There were two main arguments the Court offered for its decision not to overturn Roe. "The reservations any of us may have in reaffirming the central holding of Roe are outweighed by the explication of individual liberty we have given [discussed above] combined with the force of stare decisis," the plurality opinion explained.

The doctrine of stare decisis says that judges should give great deference to precedents (prior decisions). In Casey, the Court argued that after 19 years American society had come to rely on the right to abortion, and so it should not be taken away. The Court also expressed concern that the Court itself would lose respect and legitimacy if it reversed its previous decision.

But this is not persuasive, since it is uncontroversial that sometimes the Court must overturn a past ruling. Consider that some rulings in the history of the Court have obviously been wrong and did not deserve to be respected as precedents (e.g., Dred Scott v. Sandford). The real question is whether Roe was one of those poor decisions. If so, it should be overturned, and the Court will lose respect and legitimacy for not doing so.

A mixed decision

The result of Casey is that Roe's Court-imposed nationwide policy of abortion on demand remains intact. Abortion must be legal until viability (only modest regulations that do not impose an "undue burden" are permitted), and after viability the broad "health" exception still seems to apply. Thus, the United States, in effect, retains its policy of abortion on demand throughout pregnancy.

Nevertheless, pro-life advocates had some cause for optimism following the decision. Until Casey, most pro-life limitations since Roe had been struck down by the courts as unconstitutional. By upholding most of Pennsylvania's new pro-life provisions, Casey opened the door to further modest limits on the practice of abortion.