Planned Parenthood V. Casey - The Court's Opinions - The O'Connor, Kennedy and Souter Plurality Opinion

The O'Connor, Kennedy and Souter Plurality Opinion

These three justices began their written opinion by noting the U.S. government's previous challenges to Roe v. Wade:

"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. Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe."

The plurality opinion stated that it was upholding what it called the "essential holding" of Roe. The plurality asserted that the right to abortion is grounded in the Due Process Clause of the Fourteenth Amendment, and the plurality reiterated what the Court had said in Eisenstadt v. Baird: "f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."

The plurality's opinion also included some controversial language about the doctrine of stare decisis - see the more recent discussion from Justice Roberts on stare decisis in the Citizens United v. Federal Election Commission case. The plurality emphasized the need to stand by prior decisions even if they were unpopular, unless there had been a change in the fundamental reasoning underpinning the previous decision. It also acknowledged the need for predictability and constancy in judicial decision making. For example,

"Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort 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."

The plurality went on to give society's rejection of the "Separate but Equal" concept as a legitimate reason for the Brown v. Board of Education court’s rejection of the Plessy v. Ferguson doctrine. Emphasizing the need to not be seen as overruling a prior decision merely because the individual members of the Court had changed, O’Connor states,

"Because neither the factual underpinnings of Roe's central holding nor our understanding of it has changed (and because no other indication of weakened precedent has been shown), the Court could not pretend to be reexamining the prior law with any justification beyond a present doctrinal disposition to come out differently from the Court of 1973.”

Since the plurality overruled some portions of Roe v. Wade despite its emphasis on stare decisis, Chief Justice Rehnquist in dissent argued that this section was entirely obiter dicta. All these opening sections were joined by Justices Blackmun and Stevens for the majority. The remainder of the decision did not command a majority, but at least two other Justices concurred in judgment on each of the remaining points.

The plurality then overturned the formula used in Roe to weigh the woman's interest in obtaining an abortion against the State's interest in the life of the fetus. Continuing advancements in medical technology meant that at the time Casey was decided, a fetus might be considered viable at 22 or 23 weeks rather than at the 28 weeks that was more common at the time of Roe. The plurality recognized viability as the point at which the state interest in the life of the fetus outweighs the rights of the woman and abortion may be banned entirely "except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother".

The plurality also replaced the heightened scrutiny of abortion regulations under Roe, which was standard for fundamental rights in the Court's case law, with a lesser "undue burden" standard previously developed by O'Connor in her dissent in Akron v. Akron Center for Reproductive Health. A legal restriction posing an undue burden was defined as one having "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." The plurality also overruled City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983) and Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986), each of which applied "strict scrutiny" to abortion restrictions.

Applying this new standard to the Pennsylvania Act under challenge, the plurality struck down the spousal notice requirement, stating that it gave too much power to husbands over their wives and would worsen situations of spousal abuse. The plurality upheld the State's 24-hour waiting period, informed consent, and parental consent requirements, holding that none constituted an undue burden.

The Plurality, in section 5 of its decision, made a special note of the precedential value of Roe v. Wade, especially how women's lives were changed by that decision:

The sum of the precedential enquiry to this point shows Roe's underpinnings unweakened in any way affecting its central holding. While it has engendered disapproval, it has not been unworkable. An entire generation has come of age free to assume Roe's concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left Roe's central holding a doctrinal remnant. —Planned Parenthood v. Casey

Notable by omission in the plurality is any mention of any right to privacy coming from the Constitution; while O'Connor does use "privacy" a few times in her opinion, the usages are all in the context of a quotation or paraphrase from Roe or other previous cases.