Dissent in Planned Parenthood of Southeastern Pennsylvania v. Casey
505 U.S. 833 (1992) (1992) · Supreme Court of the United States
Casey reaffirmed the essential holding of Roe v. Wade -- that women have a constitutional right to obtain an abortion before viability -- but replaced the trimester framework with the undue burden standard. The joint opinion's extensive discussion of stare decisis became one of the most important treatments of that doctrine in constitutional law. The case governed abortion jurisprudence for thirty years until Dobbs.
What was the dissent in Planned Parenthood of Southeastern Pennsylvania v. Casey?
Chief Justice Rehnquist, joined by Justices White, Scalia, and Thomas, dissented from the reaffirmation of Roe, arguing it should be overruled entirely. Justice Scalia wrote separately, sharply criticizing the joint opinion's reliance on stare decisis and arguing that abortion is a political question for legislatures, not courts, to resolve.
Source: Read Planned Parenthood of Southeastern Pennsylvania v. Casey on Google Scholar
Case Overview
Facts
Pennsylvania enacted the Pennsylvania Abortion Control Act of 1982, as amended in 1988 and 1989, which imposed several requirements on women seeking abortions: informed consent with a 24-hour waiting period, parental consent for minors with a judicial bypass, spousal notification, and reporting requirements for abortion providers. Planned Parenthood and several physicians challenged the provisions as unconstitutional under Roe v. Wade.
Majority Holding
In a landmark joint opinion by Justices O'Connor, Kennedy, and Souter, the Court reaffirmed Roe's essential holding that a woman has a right to choose to have an abortion before viability without undue interference from the state. However, the Court replaced the trimester framework with the undue burden standard: a state regulation is unconstitutional if it has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion before viability. Applying this standard, the Court upheld all challenged provisions except the spousal notification requirement.
Majority Reasoning
The joint opinion grounded the abortion right in the liberty protected by the Due Process Clause, emphasizing personal autonomy and bodily integrity rather than privacy. On stare decisis, the joint opinion articulated a multi-factor test: whether the rule has proven unworkable, whether people have relied on the rule, whether the legal foundation has changed, and whether facts have changed to render the rule anachronistic. The opinion found that none of these factors counseled overruling Roe. The undue burden standard replaced the trimester framework as more workable, permitting regulations that inform the woman's choice but prohibiting those that create substantial obstacles to access.
The Dissenting Opinion
Chief Justice Rehnquist, joined by Justices White, Scalia, and Thomas, dissented from the reaffirmation of Roe, arguing it should be overruled entirely. Justice Scalia wrote separately, sharply criticizing the joint opinion's reliance on stare decisis and arguing that abortion is a political question for legislatures, not courts, to resolve.
Key Quotes
“At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.”
“An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”
“The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”
Impact and Legacy
Casey's undue burden standard governed abortion regulation for three decades, producing extensive lower court litigation over what constitutes a 'substantial obstacle.' The stare decisis analysis became a benchmark for evaluating when to overturn precedent. The case demonstrated that the Court could modify precedent while preserving its core holding, a middle path between wholesale reaffirmation and outright reversal.
Exam Relevance
Casey is tested extensively in exams on substantive due process, stare decisis, and the standard of review for abortion regulations. Professors ask students to apply the undue burden test to hypothetical regulations and to evaluate the joint opinion's stare decisis framework. After Dobbs, Casey is also tested as part of questions about when the Court should and should not follow precedent.
Study Tips
- Master the undue burden standard: purpose or effect of placing a substantial obstacle.
- Study the four-factor stare decisis test from the joint opinion and how Dobbs later addressed each factor.
- Understand the doctrinal shift from privacy to liberty and autonomy as the foundation for the abortion right.
- Be prepared to discuss the unusual nature of the joint opinion format and its implications for precedent.
Read the Full Case Analysis
View the complete brief for Planned Parenthood of Southeastern Pennsylvania v. Casey including full reasoning, doctrine, and study resources.
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