Basically Law

Read the opinion here.

Issue.  What types of restrictions on the right of abortion are constitutionally permissible?

Background.  In 1982, Pennsylvania passed the Pennsylvania Abortion Control Act, which required the following:  1.)  a woman must give informed consent before having an abortion after receiving information on the procedure at least 24 hours in advance; 2.) a minor must receive informed parental consent before having an abortion; 3.) a married woman seeking an abortion must sign a statement that she notified her husband; and, 4.) reporting requirements for facilities that provide abortion services.

Planned Parenthood brought a suit seeking declaratory and injunctive relief on the grounds that all provisions of the law were unconstitutional.  The case also provided the opportunity for the Court to overrule Roe v. Wade, The Supreme Court decided to uphold Roe and those provisions of the Pennsylvania law which did not provide an undue burden on a woman seeking to have her constitutionally protected right to have an abortion.

Court's Analysis.  The Court noted that a woman has the Due Process right to have an abortion ("liberty") as detailed in Roe.  Basically, a plurality of the Court (Justices Kennedy, O'Connor and Souter) decided to uphold Roe on the grounds of stare decisis (let the decision stand).  As the plurality notes:

[Overruling] Roe's central holding would not only reach an unjustified result under the principles of stare decisis, 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.

In other words, the Court cannot claim people have the Constitutional right to do something and then take it away twenty years later.  This is unlike "separate but equal" where a constitutional right was denied and then enforced.

Upholding Roe, the Court examined the State's provisions to see if any placed an undue burden on the right of a woman to have an abortion.  As long as the burden is not a substantial obstacle to the woman's exercise of the right to choose, the regulation will stand.  As the Court writes:

Unless it has that effect on her right of choice, a state measure designed to persuade her to choose childbirth over abortion will be upheld if reasonably related to that goal.

Detailing the undue burden standard, the Court upheld the 24 hour waiting period since it did not convince the Court to be an undue burden.  24 hours is not that long and it is unlikely to be a substantial obstacle for women forced to travel long distances to have an abortion.  The Court struck down the spousal notification requirement because of possible marital discord and abuse.  The "husband's interest in the life of the child [does] not permit the State to empower him with the troubling degree of authority over his wife."  Further, women do not lose constitutionally protected liberty when they marry.  (A single woman does not have to notify the baby's father, but a married woman does (assuming the husband to be the father).)

As for parental consent, the Court upheld the provision because it provides for procedure for a minor to get an abortion through the courts, if her parents refused.  Finally, the reporting requirements do not invade the privacy of women and is only of minimal cost to facilities.  Therefore, such a provision is constitutional.

Afterword.  While the plurality claims that this case caused it to re-examine Roe, does it really?  The Court could have easily struck down the spousal notification requirement and focus on the "undue burden" standard without re-affirming Roe.

Further, the plurality reaffirmed Roe on stare decisis grounds which made the dissent livid (Scalia is still seething).  How can you have stare decisis when it comes to constitutional issues?  It does not seem right, but it does work here.  There is a difference between recognizing an individual right and then taking it away versus denying a right (or failure to recognize an individual's right) and then finding it.  If the Supreme Court could take away rights that it recognized based on the ideology and the make-up of the current court, people would lack faith in the courts.  It does not sound pretty or "legal" but it is correct.  Even if Roe was wrongly decided in 1973, there is no turning back now.  There is nothing wrong with the Court being practical instead of rigidly legalistic.