Planned Parenthood v. Casey

“ The whole argument of abortion opponents is that what the Court calls the fetus and what others call the unborn child is a human life. Thus, whatever answer Roe came up with after conducting its “balancing” is bound to be wrong, unless it is correct that the human fetus is in some critical sense merely potentially human. There is of course no way to determine that as a legal matter; it is in fact a value judgment. Some societies have considered newborn children not yet human, or the incompetent elderly no longer so. ”

“ To the extent I can discern any meaningful content in the “undue burden” standard as applied in the joint opinion, it appears to be that a State may not regulate abortion in such a way as to reduce significantly its incidence. The joint opinion repeatedly emphasizes that an important factor in the “undue burden” analysis is whether the regulation “prevent [s] a significant number of women from obtaining an abortion,” ante, at 2829; whether a “significant number of women ... are likely to be deterred from procuring an abortion,” ibid. ”

“ It should be recognized, moreover, that in some critical respects the abortion decision is of the same character as the decision to use contraception, to which Griswold v. Connecticut, Eisenstadt v. Baird, and Carey v. Population Services International afford constitutional protection. We have no doubt as to the correctness of those decisions. They support [p853] the reasoning in Roe relating to the woman's liberty because they involve personal decisions concerning not only the meaning of procreation but also human responsibility and respect for it. ”

“ Any regulation of abortion that is intended to advance what the joint opinion concedes is the State's “substantial” interest in protecting unborn life will be “calculated [to] hinder” a decision to have an abortion. It thus seems more accurate to say that the joint opinion would uphold abortion regulations only if they do not unduly hinder the woman's decision. ”

“ I join the Court's opinion because it accurately applies current jurisprudence, including Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) . I write separately to reiterate my view that the Court's abortion jurisprudence, including Casey and Roe v. Wade, 410 U.S. 113 (1973) , has no basis in the Constitution. ”

“ The final, and more genuine, criticism of the trimester framework is that it fails to find the State's interest in potential human life compelling throughout pregnancy. No Member of this Court-nor for that matter, the Solicitor General, Tr. of Oral Arg. 42-has ever questioned our holding in Roe that an abortion is not “the termination of life entitled to Fourteenth Amendment protection.” 410 U.S., at 159, 93 S.Ct., at 729-730. Accordingly, a State's interest in protecting fetal life is not grounded in the Constitution. ”

“ We conclude, however, that such an outcome is an unjustified constitutional compromise, one which leaves the Court in a position to closely scrutinize all types of abortion regulations despite the fact that it lacks the power to do so under the Constitution.
In Roe, the Court opined that the State “does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, ... and that it has still another important and legitimate interest in protecting [p946] the potentiality of human life.” ”

“ The Commonwealth attempts to justify its required reports on the ground that the public has a right to know how its tax dollars are spent. A regulation designed to inform the public about public expenditures does not further the Commonwealth's interest in protecting maternal health. Accordingly, such a regulation cannot justify a legally significant burden on a woman's right to obtain an abortion. ”

“ Decisional autonomy must limit the State's power to inject into a woman's most personal deliberations its own views of what is best. The State may promote its preferences by funding childbirth, by creating and maintaining alternatives to abortion, and by espousing the virtues of family ”

“ Neither reduces the health risks or financial costs of going through pregnancy and childbirth. Moreover, the choice to give up parental rights after giving birth is altogether different from the choice not to carry a pregnancy to term. The reality is that few women denied an abortion will choose adoption. [17] The vast majority will continue, just as in Roe and Casey's time, to shoulder the costs of childrearing. Whether or not they choose to parent, they will experience the profound loss of autonomy and dignity that coerced pregnancy and birth always impose. ”

“ Without the ability to decide whether and when to have children, women could not—in the way men took for granted—determine how they would live their lives, and how they would contribute to the society around them.
For much that reason, Casey made clear that the precedents Roe most closely tracked were those involving contraception. Over the course of three cases, the Court had held that a right to use and gain access to contraception was part of the Fourteenth Amendment’s guarantee of liberty. ”

“ In light of that worldwide liberalization of abortion laws, it is American States that will become international outliers after today.
In sum, the majority can point to neither legal nor factual developments in support of its decision. Nothing that has happened in this country or the world in recent decades undermines the core insight of Roe and Casey. It continues to be true that, within the constraints those decisions established, a woman, not the government, should choose whether she will bear the burdens of pregnancy, childbirth, and parenting. ”

“ About 18 percent of pregnancies in this country end in abortion, and about one quarter of American women will have an abortion before the age of 45. [22] Those numbers reflect the predictable and life-changing effects of carrying a pregnancy, giving birth, and becoming a parent. As Casey understood, people today rely on their ability to control and time pregnancies when making countless life decisions: where to live, whether and how to invest in education or careers, how to allocate financial resources, and how to approach intimate and family relationships. ”

“ In Casey, the Court observed that for two decades individuals "have organized intimate relationships and made" significant life choices "in reliance on the availability of abortion in the event that contraception should fail." 505 U. S., at 856. Over another 30 years, that reliance has solidified. For half a century now, in Casey's words, " [t] he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives." ”

“ The abortion right is also embedded in the lives of women—shaping their expectations, influencing their choices about relationships and work, supporting (as all reproductive rights do) their social and economic equality. Since the right's recognition (and affirmation) , nothing has changed to support what the majority does today. Neither law nor facts nor attitudes have provided any new reasons to reach a different result than Roe and Casey did. All that has changed is this Court. ”

“ In its principal brief, the State bluntly announced that the Court should overrule Roe and Casey. The Constitution does not protect a right to an abortion, it argued, and a State should be able to prohibit elective abortions if a rational basis supports doing so. ”

“ Nothing—and in particular, no significant legal or factual change—supports overturning a half-century of settled law giving women control over their reproductive lives.
First, for all the reasons we have given, Roe and Casey were correct. In holding that a State could not "resolve" the debate about abortion "in such a definitive way that a woman lacks all choice in the matter," the Court protected women's liberty and women's equality in a way comporting with our Fourteenth Amendment precedents. ”

“ Today's decision is so obviously irreconcilable with Casey 's explication of what its undue-burden standard requires, let alone the Constitution, that it should be seen for what it is, a reinstitution of the pre-Webster abortion-on-demand era in which the mere invocation of "abortion rights" trumps any contrary societal interest. ”

“ And today, another half century later, more than half of the States have asked us to overrule Roe and Casey. The dissent cannot establish that a right to abortion has ever been part of this Nation’s tradition. ”

“ We advance from the premise that Planned Parenthood's abortion clinic is to perform only first trimester abortions. Therefore, by denying to pregnant women the opportunity to use Planned Parenthood's unique abortion facility, the ordinance interfered with the pregnant woman's right to secure and Planned Parenthood's ability to provide first trimester abortion services in the St. ”

“ Roe's defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called "fetal life" and what the law now before us describes as an "unborn human being." ”

“ When a concrete reliance interest is asserted, courts are equipped to evaluate the claim, but assessing the novel and intangible form of reliance endorsed by the Casey plurality is another matter. That form of reliance depends on an empirical question that is hard for anyone—and in particular, for a court—to assess, namely, the effect of the abortion right on society and in particular on the lives of women. The contending sides in this case make impassioned and conflicting arguments about the effects of the abortion right on the lives of women. ”

“ Reproductive Health Services, 492 U. S. 490, 518, 521 (1989) (plurality opinion) (rejecting Roe’s viability line as “rigid” and “indeterminate,” while also finding “no occasion to revisit the holding of Roe” that, under the Constitution, a State must provide an opportunity to choose to terminate a pregnancy) .
Of course, such an approach would not be available if the rationale of Roe and Casey was inextricably entangled with and dependent upon the viability standard. It is not. Our precedents in this area ground the abortion right in a woman’s “right to choose.” ”

“ To the majority "balance" is a dirty word, as moderation is a foreign concept. The majority would allow States to ban abortion from conception onward because it does not think forced childbirth at all implicates a woman's rights to equality and freedom. Today's Court, that is, does not think there is anything of constitutional significance attached to a woman's control of her body and the path of her life. Roe and Casey thought that one-sided view misguided. In some sense, that is the difference in a nutshell between our precedents and the majority opinion. ”

“ And it seems to us right. The majority responds (if we understand it correctly) : well, yes, but we have to apply the law. See ante, at 67. To which Casey would have said: That is exactly the point. Here, more than anywhere, the Court needs to apply the law—particularly the law of stare decisis. Here, we know that citizens will continue to contest the Court's decision, because " [m] en and women of good conscience" deeply disagree about abortion. ”

“ Americans continue to hold passionate and widely divergent views on abortion, and state legislatures have acted accordingly. Some have recently enacted laws allowing abortion, with few restrictions, at all stages of pregnancy. Others have tightly restricted abortion beginning well before viability. And in this case, 26 States have expressly asked this Court to overrule Roe and Casey and allow the States to regulate or prohibit pre-viability abortions. ”