THE ABORTION DECISION : TEXT: Duty ‘To Define Liberty of All’

The following are excerpts from the Supreme Court’s decision in Planned Parenthood of Southeastern Pennsylvania vs. Casey. The main opinion was written by Justice Sandra Day O’Connor. Joining in the majority were Justices Harry A. Blackmun, Anthony M. Kennedy, David H. Souter and John Paul Stevens. The dissenting opinion by Chief Justice William H. Rehnquist was joined by Justices Byron R. White, Antonin Scalia and Clarence Thomas .

The Main Opinion

“We are led to conclude this: The essential holding of Roe vs. Wade should be retained and once again reaffirmed. . . . It must be stated at the outset and with clarity that Roe’s essential holding, the holding we reaffirm, has three parts.

First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state. . . .

Second is a confirmation of the state’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman’s life or health.

And third is the principle that the state has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.

It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. We have indicated this principle before.

It is settled now, as it was when the court heard arguments in Roe vs. Wade, that the Constitution places limits on a state’s right to interfere with a person’s most basic decisions about family and parenthood. . . .

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 in 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. . . .

Though abortion is conduct, it does not follow that the state is entitled to proscribe it in all instances. That is because the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law.

The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the state to insist she make the sacrifice.

Her suffering is too intimate and personal for the state to insist, without more, upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.

Although Roe has engendered opposition, it has in no sense proven “unworkable,” . . . representing as it does a simple limitation beyond which a state law is unenforceable.

We have seen how time has overtaken some of Roe’s factual assumptions: Advances in maternal health care allow for abortions safe to the mother later in pregnancy than was true in 1973. . . . But these facts go only to the scheme of time limits on the realization of competing interests, and the divergences from the factual premises of 1973 have no bearing on the validity of Roe’s central holding, that viability marks the earliest point at which the state’s interest in fetal life is constitutionally adequate to justify a legislative ban on non-therapeutic abortions.

The court’s duty in the present case is clear. In 1973, it confronted the already-divisive issue of governmental power to limit personal choice to undergo abortion, for which it provided a new resolution based on the due process guaranteed by the 14th Amendment.

Whether or not a new social consensus is developing on that issue, its divisiveness is no less today than in 1973, and pressure to overrule the decision, like pressure to retain it, has grown only more intense.

A decision to overrule Roe’s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the court’s legitimacy and to the nation’s commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe’s original decision, and we do so today.

From what we have said so far, it follows that it is a constitutional liberty of the woman to have some freedom to terminate her pregnancy. We conclude that the basic decision in Roe was based on a constitutional analysis which we cannot now repudiate.

The woman’s liberty is not so unlimited, however, that from the outset the state cannot show its concern for the life of the unborn, and at a later point in fetal development the state’s interest in life has sufficient force so that the right of the woman to terminate the pregnancy can be restricted. . . .

The woman’s right to terminate her pregnancy before viability is the most central principle of Roe vs. Wade. It is a rule of law and a component of liberty we cannot renounce.

On the other side of the equation is the interest of the state. . . . That portion of the decision in Roe has been given too little acknowledgment and implementation by the court in its subsequent cases. . . .

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. Even in the earliest stages of pregnancy, the state may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term. . . .

It follows that states are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning. This, too, we find consistent with Roe’s central premises, and indeed the inevitable consequence of our holding that the state has an interest in protecting the life of the unborn. . . .

We reject the trimester framework, which we do not consider to be part of the essential holding of Roe. . . . The trimester framework suffers from these basic flaws: In its formulation it misconceives the nature of the pregnant woman’s interest; and in practice it undervalues the state’s interest in potential life, as recognized in Roe. . . .

The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it. Only where state regulation imposes an undue burden on a woman’s ability to make this decision does the power of the state reach into the heart of the liberty protected by the due process clause.

What is at stake is the woman’s right to make the ultimate decision, not a right to be insulated from all others in doing so.

Requiring that the woman be informed of the availability of information relating to fetal development and the assistance available should she decide to carry the pregnancy to full term is a reasonable measure to ensure an informed choice, one which might cause the woman to choose childbirth over abortion. . . .

The spousal notification requirement is . . . likely to prevent a significant number of women from obtaining an abortion. . . .

A husband has no enforceable right to require a wife to advise him before she exercises her personal choices. . . .”

Dissenting Opinion

“The joint opinion, following its newly minted variation on stare decisis (precedents), retains the outer shell of Roe vs. Wade, but beats a wholesale retreat from the substance of that case. We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases.

In Roe vs. Wade, the court recognized a ‘guarantee of personal privacy’ which ‘is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.’ We are now of the view that, in terming this right fundamental, the court in Roe read the earlier opinions upon which it based its decision much too broadly. Unlike marriage, procreation and contraception, abortion ‘involves the purposeful termination of potential life.’ The abortion decision must therefore ‘be recognized as sui generis, different in kind from the others that the court has protected under the rubric of personal or family privacy and autonomy.’

One cannot ignore the fact that a woman is not isolated in her pregnancy, and that the decision to abort necessarily involves the destruction of a fetus.

We think, therefore, both in view of this history and of our decided cases dealing with substantive liberty under the due process clause, that the court was mistaken in Roe when it classified a woman’s decision to terminate her pregnancy as a ‘fundamental right’ that could be abridged only in a manner which withstood ‘strict scrutiny.’

Roe continues to exist, but only in the way a storefront on a Western movie set exists: a mere facade to give the illusion of reality. . . . In our view, authentic principles of stare decisis do not require that any portion of the reasoning in Roe be kept intact. . . .

The joint opinion discusses several stare decisis factors which, it asserts, point toward retaining a portion of Roe. Two of these factors are that the main ‘factual underpinning’ of Roe has remained the same, and that its doctrinal foundation is no weaker now than it was in 1973.

The joint opinion thus turns to what can only be described as an unconventional--and unconvincing--notion of reliance, a view based on the surmise that the availability of abortion since Roe has led to ‘two decades of economic and social developments’ that would be undercut if the error of Roe were recognized. Surely it is dubious to suggest that women have reached their places in society in reliance upon Roe, rather than as a result of their determination to obtain higher education and compete with men in the job market, and of society’s increasing recognition of their ability to fill positions that were previously thought to be reserved only for men.

Apparently realizing that conventional stare decisis principles do not support its position, the joint opinion advances a belief that retaining a portion of Roe is necessary to protect the ‘legitimacy of this court.’ Because the court must take care to render decisions ‘grounded truly in principle,’ and not simply as political and social compromises . . . the joint opinion properly declares it to be this court’s duty to ignore the public criticism and protest that may arise as a result of a decision.

The joint opinion asserts that, in order to protect its legitimacy, the court must refrain from overruling a controversial decision lest it be viewed as favoring those who oppose the decision. But a decision to adhere to prior precedent is subject to the same criticism, for in such a case one can easily argue that the court is responding to those who have demonstrated in favor of the original decision.

A woman’s interest in having an abortion is a form of liberty protected by the due process clause, but states may regulate abortion procedures in ways rationally related to a legitimate state interest.

The question before us is therefore whether the spousal notification requirement rationally furthers any legitimate state interests. We conclude that it does. First, a husband’s interests in procreation within marriage and in the potential life of his unborn child are certainly substantial ones. . . .

The state itself has legitimate interests both in protecting these interests of the father and in protecting the potential life of the fetus, and the spousal notification requirement is reasonably related to advancing those state interests. By providing that a husband will usually know of his spouse’s intent to have an abortion, the provision makes it more likely that the husband will participate in deciding the fate of his unborn child, a possibility that might otherwise have been denied him. This participation might in some cases result in a decision to proceed with the pregnancy.

In our view, the spousal notice requirement is a rational attempt by the state to improve truthful communication between spouses and encourage collaborative decision-making, and thereby fosters marital integrity. . . .”

Points of View

Justice Harry A. Blackmun: “Three years ago, in Webster vs. Reproductive Health Services . . . four members of this court appeared poised to ‘cast into darkness the hopes and visions of every woman in this country’ who had come to believe that the Constitution guaranteed her the right to reproductive choice. . . .

All that remained between the promise of Roe and the darkness of the plurality was a single, flickering flame. Decisions since Webster gave little reason to hope that this flame would cast much light. . . .

I fear for the darkness as four justices anxiously await the single vote necessary to extinguish the light. . . .

I am 83 years old. I cannot remain on this court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today. That, I regret, may be exactly where the choice between the two worlds will be made.”

Justice John Paul Stevens: “. . . The societal costs of overturning Roe at this date would be enormous. Roe is an integral part of a correct understanding of both the concept of liberty and the basis of equality of men and women.

(The following of precedents) also provides a sufficient basis for my agreement with the joint opinion’s reaffirmation of Roe’s post-viability analysis.

Specifically, I accept the proposition that ‘if the state is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.’

I also accept what is implicit in the court’s analysis, namely, a reaffirmation of Roe’s explanation of why the state’s obligation to protect the life of health of the mother must take precedence over any duty to the unborn. The court in Roe carefully considered, and rejected, the state’s argument that the fetus is a ‘person’ within the language and meaning of the 14th Amendment. . . .

“Thus, as a matter of federal constitutional law, a developing organism that is not yet a ‘person’ does not have what is sometimes described as a ‘right to life.’ This has been and, by the court’s holding today, remains a fundamental premise of our constitutional law governing reproductive autonomy. . . .”

Justice Antonin Scalia: “The states may, if they wish, permit abortion-on-demand, but the Constitution does not require them to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like the most important questions in our democracy: by citizens trying to persuade one another and then voting.

As the court acknowledges, ‘where reasonable people disagree the government can adopt one position or the other.’ The court is correct in adding the qualification that this ‘assumes a state of affairs in which the choice does not intrude upon a protected liberty . . . but the crucial part of that qualification is the penultimate word.

A state’s choice between two positions on which reasonable people can disagree is constitutional even when (as is often the case) it intrudes upon a ‘liberty’ in the absolute sense. Laws against bigamy, for example--which entire societies of reasonable people disagree with--intrude upon men and women’s liberty to marry and live with one another. But bigamy happens not to be a liberty specially ‘protected’ by the Constitution.

That is, quite simply, the issue in this case: not whether the power of a women to abort her unborn child is a ‘liberty’ in the absolute sense; or even whether it is a liberty of great importance to many women. Of course, it is both. . . .

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.”