On June 29, 1992—only twenty years ago today—the Supreme Court in Planned Parenthood v. Casey simultaneously reaffirmed and weakened its prior ruling in Roe v. Wade, ruling that although the state is prohibited from banning most abortions, it does have the authority to impose some regulations.
Ten years earlier, Pennsylvania’s Abortion Control Act put into effect regulations requiring women to give “informed consent” before abortions, forcing upon women a 24-hour waiting period, and requiring minors to obtain informed consent from a parent. Married women were required to inform their husband of their intention to abort the pregnancy, and abortion clinics were required to report themselves to the state.
Planned Parenthood of Southeastern Pennsylvania sued the state, arguing that the Act violated the provisions of Roe v. Wade.
A split court (5-to-4) held that the essential holdings of Roe v. Wade should be affirmed; however the court also upheld the majority of the Act’s provisions as constitutional, arguing that states seek to protect the health of the mother and the life of the fetus. For example, the 24 hour waiting period was held as constitutional because it was not perceived as an “undue burden.” Likewise, the parental consent provision for minors was upheld. The spousal consent provision, however, was declared unconstitutional.
The decision read, in part:
Constitutional protection of the woman’s decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. . .
Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even at its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code. The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter, except perhaps in those rare circumstances in which the pregnancy is itself a danger to her own life or health, or is the result of rape or incest.
It is conventional constitutional doctrine that where reasonable people disagree the government can adopt one position or the other. . . That theorem, however, assumes a state of affairs in which the choice does not intrude upon a protected liberty.
The case came nearly two decades after Roe v. Wade gave women the right to terminate their pregnancies, and 27 years after Griswold v. Connecticut protected a couple’s right to privacy concerning their reproductive decisions. While the 1992 ruling, in its affirmation of the basic principle of Roe v. Wade, acknowledged a woman’s right to make choices about her own body, it also represented a regression in women’s rights, as seen through its provisions concerning the state’s authority to regulate women’s reproductive health.
The ambiguous “undue burden” test has proved difficult to apply, and the ruling, which received mixed reactions at the time, remains controversial to this day.
To read the opinion, delivered by three justices, click here.
To listen to the oral argument and the opinion announcement, click here.
To read a New York Times article published the following day, click here.
For more information, click here.
To read Planned Parenthood’s description of Pennsylvania’s law, click here.
For a broader discussion of reproductive rights, check out Marc Stein’s Sexual Injustice: Supreme Court Decisions from Griswold to Roe (UNC Press, 2010), and The Abortion Rights Controversy in America: A Legal Reader (UNC Press, 2004).
Nancy Ehrenreich’s edited volume, The Reproductive Rights Reader (NYU Press, 2008) offers articles and legal cases that provide context to this debate.