Planned Parenthood of Southeastern PA v. Casey
Decided on June 29, 1992; 505 US 833

Consideration of the fundamental constitutional question resolved by Roe v. Wade and its holding are reaffirmed
and Pennsylvania's abortion law is declared unconstitutional.


A. Issues Discussed: Abortion

B. Legal Question Presented:

Is a Pennsylvania law requiring women who want an abortion to give their informed consent, to wait 24 hours, to obtain parental consent (if a minor), and to notify their husbands (if married) constitutional and should Roe v. Wade be overturned?


A. Background:

"At issue are five provisions of the Pennsylvania Abortion Control Act of 1982:

§3205, which requires that a woman seeking an abortion give her informed consent prior to the procedure, and specifies that she be provided with certain information at least 24 hours before the abortion is performed;

§3206, which mandates the informed consent of one parent for a minor to obtain an abortion, but provides a judicial bypass procedure;

§3209, which commands that, unless certain exceptions apply, a married woman seeking an abortion must sign a statement indicating that she has notified her husband;

§3203, which defines a 'medical emergency' that will excuse compliance with the foregoing requirements; and

§3207(b), §3214(a), and §3214(f), which impose certain reporting requirements on facilities providing abortion services.

Before any of the provisions took effect, the petitioners, five abortion clinics and a physician representing himself and a class of doctors who provide abortion services, brought this suit seeking a declaratory judgment that each of the provisions was unconstitutional on its face, as well as injunctive relief.

The District Court held all the provisions unconstitutional, and permanently enjoined their enforcement.

The Court of Appeals affirmed in part and reversed in part, striking down the husband notification provision but upholding the others."

On certiorari, the US Supreme Court affirmed in part and reversed in part the judgment of the US Court of Appeals for the Third Circuit.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Kathryn Kolbert argued the cause for petitioners in No. 91-744 and respondents in No. 91-902. With her on the briefs were Janet Benshoof, Lynn M. Paltrow, Rachael N. Pine, Steven R. Shapiro, John A. Powell, Linda J. Wharton, and Carol E. Tracy.

[Editor's Note: The Supreme Court's decision listed all amicus curiae together. We've separated out as many as we could verify into their respective Petitioner and Respondent columns. Ones that could not be verified were left out.]

Ernest D. Preate, Jr., Attorney General of Pennsylvania, argued the cause for respondents in No. 91-744 and petitioners in No. 91-902. With him on the brief were John G. Knorr III, Chief Deputy Attorney General, and Kate L. Mershimer, Senior Deputy Attorney General.


The Supreme Court reviewed Planned Parenthood v. Casey case #91-744 together with Casey v. Planned Parenthood, case #91-902.

"Consideration of the fundamental constitutional question resolved by Roe v. Wade, principles of institutional integrity, and the rule of stare decisis require that Roe's essential holding be retained and reaffirmed as to each of its three parts:

(1) a recognition of a woman's right to choose to have an abortion before fetal viability...without undue interference from the State...

(2) a confirmation of the State's power to restrict abortions after viability, if the law contains exceptions for pregnancies endangering a woman's life or health; and

(3) 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...

Roe determined that a woman's decision to terminate her pregnancy is a 'liberty' protected against state interference by the substantive component of the Due Process Clause of the Fourteenth Amendment...

Overruling Roe's central holding would not only reach an unjustifiable result under stare decisis principles, but would seriously weaken the Court's capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law. Where the Court acts to resolve the sort of unique, intensely divisive controversy reflected in Roe, its decision has a dimension not present in normal cases and is entitled to rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation...

[A]n examination of Roe v. Wade, and subsequent cases, reveals a number of guiding principles that should control the assessment of the Pennsylvania statute:

  • To protect the central right recognized by Roe while at the same time accommodating the State's profound interest in potential life, the undue burden standard should be employed. An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.

  • Roe's rigid trimester framework is rejected. To promote the State's interest in potential life throughout pregnancy, the State may take measures to ensure that the woman's choice is informed...These measures must not be an undue burden on the right...

  • Adoption of the undue burden standard does not disturb Roe's holding that regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.

  • Roe's holding that 'subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation fo the life or health of the mother' is also reaffirmed...

  • §3203's medical emergency definition is intended to assure that compliance with the State's abortion regulations would not in any way pose a significant threat to a woman's life or health, and thus does not violate the essential holding of Roe...

  • Section 3209's husband notification provision constitutes an undue burden and is therefore invalid... The fact that §3209 may affect fewer than on percent of women seeking abortions does not save it from facial invalidity, since the proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom it is irrelevant...

  • Section 3205's informed consent provision is not an undue burden on a woman's constitutional right to decide to terminate a pregnancy... Requiring that the woman be informed of the availability of information relating to the consequences to the fetus does not interfere with a constitutional right of privacy between a pregnant woman and her physician...and does not underlie or override the abortion right...

  • Although §3205's 24-hour waiting period may make some abortions more expensive and less convenient, it cannot be said that it is invalid on the present record and in the context of this facial challenge.

  • Section 3206's one parent consent requirement and judicial bypass procedure are constitutional."

The US Supreme Court affirmed in part and reversed in part the US Court of Appeals for the Third Circuit judgment.

Justice Vote: 5 Pro vs. 4 Con
  • O'Connor, S. Pro (Wrote majority opinion)
  • Kennedy, A. Pro (Wrote majority opinion)
  • Souter, D. Pro (Wrote majority opinion)
  • Stevens, J. Pro (Wrote concurring dissenting opinion)
  • Blackmun, H. Pro (Wrote concurring dissenting opinion)
  • Rehnquist, W. Con (Wrote concurring dissenting opinion)
  • Thomas, C. Con (Wrote concurring dissenting opinion)
  • White, B. Con (Joined dissenting opinion)
  • Scalia, A. Con (Joined dissenting opinion)

The ACLU, as counsel for petitioners in case #91-744 and respondents in case #91-902, urged reversal in #91-744 and affirmance in #91-902, of the judgment of the United States Court of Appeals for the Third Circuit; the Supreme Court affirmed in part and reversed in part case #91-744 in a 5-4 vote and affirmed in 91-902, giving the ACLU an apparent win.