Case Summary: Planned Parenthood of Southeastern Pennsylvania v. Casey No. 90-1662
In a shocking decision issued on October 21, 1991, the United States Court of Appeals for the Third Circuit ruled that abortion restrictions contained in an anti-choice Pennsylvania statute are constitutional and enforceable because Roe v. Wade is no longer the law of the land. The court held that abortion restrictions no longer have to meet the stringent "strict scrutiny" test used by the U.S. Supreme Court to review governmental interference with fundamental rights and first applied to abortion restrictions in Roe v. Wade, 410 U.S. 113 (1973).
This decision represents the first time that a federal court of appeals has held that the standard established in Roe v. Wade is no longer the law and that a state may enforce abortion restrictions that the Supreme Court previously has held to be unconstitutional under Roe. This case is also likely to be the first case to reach the newly constituted Supreme Court, which is widely regarded as poised to overturn Roe v. Wade as a result of recent anti-Choice appointments by Presidents Bush and Reagan.
The court ruled that, instead of applying the strict scrutiny test established in Roe and used to safeguard fundamental rights, courts must now evaluate abortion restrictions under the far less protective "undue burden" standard articulated by Justice O'Connor in her dissents in prior cases. The court stated, "We conclude that the undue burden standard adopted by Justice O'Connor was the narrowest grounds in the majority in Webster and Hodgson and is at present the law of the land." Slip op. at 85. Under this standard, the right to choose would no longer be treated as a fundamental right and courts would uphold the vast majority of abortion restrictions. Courts would uphold any regulation that does not impose a "severe" or "drastic" burden on a woman's ability to obtain an abortions, as long as the restriction is "rationally" related to a governmental purpose. As the court explained the standard, "no undue burden' is caused by abortion regulations that do not have a
drastic impact upon the time, cost, or the number of legal providers of abortion." Slip op. at 33.
The court ruled on several of the key provisions at issue as follows:
The court upheld the Pennsylvania statute's requirement that a physician provide specific anti-choice information designed to discourage women from having an abortion. Specifically, the law requires a physician to inform a woman of the risks of the abortion procedure, the probably gestational age of the fetus, and the risks associated with carrying a pregnancy to term. The law also requires a physician or counselor to provide the woman with published materials that describe the fetus at various intervals, provide information about alternatives to abortion, and inform the woman that the father is liable to pay child support and that medical assistance benefits may be available for pregnancy care and childbirth.
The court upheld a 24-hour waiting period as not an undue burden, even though the court acknowledged that such a requirement "may result in delays of considerably longer than 24 hours," may require a woman to make two visits to a clinic rather than one." and "means that the overall cost of an abortion...may increase by a significant percentage." Slip op. at 52-55.
The only provision of the Pennsylvania law that the court struck down as "unduly burdensome" was a provision that would have required a married woman to notify her husband before obtaining an abortion. One judge dissented from this portion of the opinion, stating that he would have upheld the spousal notice requirement. The Attorney General of Pennsylvania has announced that the state will continue to seek to enforce this provision and will appeal this portion of the ruling to the U.S. Supreme Court. The Supreme Court is viewed as likely to reverse the lower court's ruling and uphold the requirement of spousal notification.
Although the decision of the Third Circuit directly concerns only the specific provisions of the Pennsylvania law that were challenged, under the new undue burden standard articulated by the court a wide range of other onerous restrictions on the right to choose could be upheld.
Prepared by the California Abortion Rights Action League ( CARAL )r For more information contact CARAL at 415-546-7211 or by electronic mail, Kathleen A. Watkins: firstname.lastname@example.org