The Right to Privacy: Abortion Rights and Legal Challenges

1. Lecture 31Chapter 10 The Right to Privacy III Abortion Rights II

2. This Lecture • Chapter 10 • More on Abortion Rights • Pages 413-425 • The Right to Abortion II • Planned Parenthood of SE Pennsylvania v. Casey (1992) • 1981 brings us the Reagan Administration • O’Connor has now replaced Stewart • She was less known, but had a libertarian streak and had been criticized by Jerry Falwell • She had been a Republican State Senate Majority Leader in Arizona 1981-1982 Supreme Court

3. Akron v. Akron Center for Reproductive Health (1983) • Akron v. Akron Center for Reproductive Health (1983) • 6-3 opinion by Powell, J. striking down all parts of an expansive Akron abortion law • 1) All first trimester abortions must be performed in a hospital • 2) Minors under 15 must receive written parental consent • 3) Woman must give informed consent • 4) 24 hour waiting period • 5) Disposal of aborted fetus regulation (vagueness) • These first four were struck down because the intent was to discourage a woman from obtaining an abortion • O’Connor criticizes the Roe trimester framework in regard to viability • She proposes an “undue burden” standard • If the regulation does not unduly burden the right to an abortion, apply rational basis • If it does place an undue burden, apply strict scrutiny • Note she didn’t say to overrule the fundamental holding in Roe

4. Thornburgh v. American College of Obstetricians and Gynecologists (1986) • Thornburgh v. American College of Obstetricians and Gynecologists (1986) • Challenge to a similar law as was found in Akron • 1) Informed Consent requirement • 2) Women must be given information on the risks of abortion • 3) Certain reporting procedures • 4) Medical techniques to be required after viability • 5) Two physicians for post-viability abortions • 5-4 decision by Blackmun, J. (Burger, C.J. on the dissenting side here) • Strikes down the law for similar women’s rights reasons • Reagan Administration asked the Court to overrule Roe

5. Webster v. Reproductive Health Services (1989) • Webster v. Reproductive Health Services (1989) • Challenge to a Missouri law that: • 1) Required Missouri laws to be interpreted to protect the unborn, subject to federal court limitations • 2) Prevented governmental employed doctors from aborting a viable fetus • 3) Prohibited state employees to perform or assist in abortions except with the life of the mother exception • 4) Gag-rule prohibited the use of public funds, state employees or facilities to encourage or counsel a women to have an abortion, with the life of the mother exception • 5) Required a viability test for certain later term abortions • This time a 5-4 Court upholds the restrictions • They say that Harris applies on the state funds issue • Then they also say that the government has an interest in protecting viable fetuses • Scalia, J. argued for the overturning of Roe and was upset that they did not take up this issue directly • Blackmun, J. saw this as the Court looking to do so in the future

6. The Court Changes under Reagan/Bush • With 12 years of Republican presidents, the Court changes • 1981 Stewart O’Connor • 1986 Burger Rehnquist as Chief Justice • 1986 Rehnquist/Burger Scalia • 1988 Powell Kennedy • 1990 Brennan Souter • 1991 Marshall Thomas • Four of these changes were replacing very pro-Roe justices • Would the Court change its mind?

7. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) • Background • Challenge to the Pennsylvania Abortion Control Act of 1989 • 1) Informed consent and a 24 hour waiting period • 2) Parental consent for minors with a judicial bypass • 3) Spousal notification • 4) Medical emergency definitions • 5) Comprehensive record keeping on all abortions and even details on the fetus • The clinics in Pennsylvania challenge the law, and win at the district court • The 3rd Circuit reverses, using the undue burden test, but strikes down spousal consent • One judge on this panel was Samuel Alito, who would have upheld all of them • The Bush Administration urged for Roe to be overturned

8. Planned Parenthood of Southeastern Pennsylvania v. Casey- II • Arguments • For Planned Parenthood • Strict scrutiny must apply abortion rights are a fundamental right • Undue burden test to vague and not manageable • Rational basis too deferential to regulations • The law loses under all reviewable standards • For Casey (and Pennsylvania) • Proper standard is undue burden and this meets it • In the alternative, the Court should overrule Roe

9. Planned Parenthood of Southeastern Pennsylvania v. Casey- III • O'CONNOR, KENNEDY, and SOUTER, JJ., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, V-A, V-C, and VI, in which BLACKMUN and STEVENS, JJ., joined, an opinion with respect to Part V-E, in which STEVENS, J., joined, and an opinion with respect to Parts IV, V-B, and V-D • STEVENS, J., filed an opinion concurring in part and dissenting in part, post, p. 911. • BLACKMUN, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, post, p. 922. • REHNQUIST, C. J., filed an opinion concurring in the judgment in part and dissenting in part, in which WHITE, SCALIA, and THOMAS, JJ., joined, post, p. 944. • SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C. J., and WHITE and THOMAS, JJ., joined, post, p. 979

10. Planned Parenthood of Southeastern Pennsylvania v. Casey- IV • From the joint O’Connor, Kennedy, Souter, JJ. Judgment/opinion • One does not often see a three person joint opinion • Roe is saved is the long and short that the public grasped • But the important thing about Casey is that Casey is not the relevant law on abortion regulations, not Roe • The Court reaffirms the central holding in Roe v. Wade by applying stare decisis • 1) The right of a women to have an abortion before viability without undue interference from the government • State interests not strong pre-viability • 2) The state has a right to restrict abortion post-viability if they provide for life/health of the mother exceptions • 3) The state has a legitimate interest in protecting material health and the life of the fetus from the beginning

11. Planned Parenthood of Southeastern Pennsylvania v. Casey- V • More from the trio • They find that the right to an abortion is derived from the 14th Amendment Due Process Clause • Key is the word “liberty” • There are areas where government cannot enter, such as marriage (Loving) • There is a liberty interest for the women in abortion decisions that is unique • This is similar to the choice to use contraception • Women’s liberty with respect to personal decisions regarding procreation • “The destiny of the woman must be shaped by to a large extent on her own conception of her spiritual imperatives and her place in society”

12. Planned Parenthood of Southeastern Pennsylvania v. Casey- VI • Even more from the three • Stare decisis is not a command ask these questions • 1) Was the rule unworkable? • Roe not unworkable • 2) Is there some detrimental reliance on the standard? • Women have relied on their ability to control their own bodies • 3) Have other parts of the law rendered the case abandoned? No • 4) Have the facts changed? • They do acknowledge some scientific discoveries, but nothing to change the central holding • 5) Have the facts come to be seen differently so that the old rule has been robbed of its application or justification? • The central holding unweakened

13. Planned Parenthood of Southeastern Pennsylvania v. Casey- VII • More on stare decisis from the three • They look to the lines of cases that have been overruled • Lochner v. New York (1905) and Adkins v. Children’s Hospital (1923) were overruled by West Coast Hotel v. Parrish (1937) • Overturned because they relied on fundamentally false assumptions • Plessy v. Ferguson (1896) overruled by Brown v. Board of Education (1954) • Facts had changed over time • These situations do not apply to Roe • Overturning Roe could call into question the Court’s legitimacy

14. Planned Parenthood of Southeastern Pennsylvania v. Casey- VIII • We are not done from these three • They put limits on the right to an abortion • New standards by the Court to apply to abortion regulations • Adoption of undue burden test if the purpose of the law or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus is viable • The trimester framework of Roe is rejected • The state may seek to make sure the choice of a woman is informed, but it may not pose an undue burden • The state may regulate health and safety of a woman seeking an abortion so long as those regulations do not place an undue burden on the woman • The state may not prohibit a women from obtaining an abortion before viability • The state does have an interest post-viability

15. Planned Parenthood of Southeastern Pennsylvania v. Casey- IX • Application to the Pennsylvania Law • Most of the regulations survive the challenge under this standard of review • Informed consent not an undue burden • Affirms previous precedent on the parental consent with a judicial bypass • The recordkeeping provisions alright except on the spousal issues • Some fail • Spousal notification can make the right non-existent • Record keeping provision with regard to whether the woman has notified her spouse

16. Planned Parenthood of Southeastern Pennsylvania v. Casey- X • Blackmun, J. concurring in part, concurring in judgment in part, and dissenting in part • He recognizes their courage in this opinion • Likes they upheld the fundamental holding of Roe • But would keep the strict scrutiny standard in place as well as the trimester framework • This would mean for him to invalidate all the provisions of the act • He then acknowledges that one vote could overrule Roe • The majority and dissent worlds apart • Abortion should be an issue at confirmation hearings for his successor • He seems to acknowledge he will leave the Court at some point

17. Planned Parenthood of Southeastern Pennsylvania v. Casey- XI • Stevens, J. concurring in part and dissenting part • He sees a different understanding of an undue burden • It is too severe or lacks a legitimate rational justification • He finds the 24 waiting period an undue burden

18. Planned Parenthood of Southeastern Pennsylvania v. Casey- XII • Rehnquist, C.J. joined by White, Scalia, and Thomas, JJ. Concurring in judgment in part and dissenting in part • They would have overruled Roe • They say that the plurality leave only a shell of Roe left • Abortion different from contraception, procreation or marriage as it ends potential life • The decision to abort involves the destruction of a fetus • Long history of abortion being illegal after the 14th Amendment • Court should reconsider this case the cases they chose in comparing what could be overruled were not grounded properly themselves should have been overruled • Undue burden standard less grounded constitutionally than strict scrutiny • They would apply rational basis as the test • That would have all the regulations be upheld

19. Planned Parenthood of Southeastern Pennsylvania v. Casey- XIII • Scalia, J. joined by Rehnquist, C.J., White and Thomas, JJ. Concurring in judgment in part and dissenting in part • Abortion is not a liberty protected by the Constitution • Constitution says nothing about it • It was long banned before Roe • Rational basis would mean all parts of the statute upheld • He brings up the Dred Scott case where the Court thought they were taking the issue off the political table • This should be left to the people to decide, not the courts

20. Next Lecture • Chapter 10 • More on Abortion Rights • Pages 425-427 • The Right to Abortion III • Partial birth abortion laws • Whole Women’s Health v. Hellerstedt (2017)