Abortion has been an Astonishingly

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Abortion has been an astonishingly controversial and disunited argument throughout the years and it has undoubtedly affected every branch of American government. There are several conservative groups of people that are strictly pro-life, where their biggest concern is the potential fetus and what they consider as murder taking place.

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Meanwhile, other groups of people, who are typically more liberal, are in favor of the right to a choice. They typically argue in consideration of a woman’s right to make her own decisions concerning her body and the right to privacy. At a glance, there is no possibility of compromise, because it is a significant emotional and divided argument; in a political system that depends on bargaining, negotiation, and compromise to create governing majorities, the abortion controversy was bound to be problematic and unyielding (Craig). There is no simple solution because regardless of what the verdict is in cases concerning abortion, there will be an excessive amount of people upset. The Supreme Court case of Planned Parenthood v. Casey was no exception; it not only went over the Court’s previous ruling in Roe v. Wade, but it also touched on subjects that hadn’t been considered in previous cases.

Planned Parenthood of Southeastern Pennsylvania v. Casey took place in 1992 when five abortion clinics and a doctor made the decision to challenge Robert P. Casey, the Governor of Pennsylvania. The Court reviewed issues that weren’t present in the precedent cases of Roe v. Wade (1973) and Webster v. Reproductive Health Services (1989). The main constitutional issue that all of these cases had in common concerned the right to privacy. The Supreme Court never ruled on the standards states could follow when establishing restrictions on abortion laws, which caused the laws of each state to vary. The constitutional issue at hand with abortion falls into the right of privacy and the substantive due process, which is the principle that governmental action abridging a person’s life, liberty, or property interests must serve a legitimate governmental policy (Perry). Overall, the Court was looking at each provision that was already in place and determined if they caused an undue burden on women.

The debate in Casey was centered around the constitutionality of the Pennsylvania Abortion Control Act of 1892. This act was revised in 1988 and then again in 1989, both of which continually added regulation laws that limited access to abortion. Many pro-choice organizations were extremely upset by this act and decided to take action against it. Within the Pennsylvania law, the doctor performing an abortion was required to receive a statement from the patient before the procedure stating that she had notified her spouse about the procedure (Graber). The alternative options for the woman were to provide a statement that concluded her husband was not the man who impregnated her, that she couldn’t locate her husband, that she believed that notifying her husband poses a threat, or that spousal sexual assault had taken place, which she had reported. If a doctor were to perform the procedure without a signed statement from the woman, they would consequently lose their licenses. If a woman provided false information in her statement, she would be found guilty of a third-degree misdemeanor. Planned Parenthood made the decision to file a lawsuit against the state, contending that the Abortion Control Act breached the Supreme Court’s directive in Roe v. Wade. After the Pennsylvania court upheld all of the provisions except for the spousal notification, pro-choice groups were determined to take it the Supreme Court.

Historically, the Supreme Court enforced the substantive due process and used this principle to degrade state and federal legislation that differed from the Court’s perspective of rightful policy. In the late 1930s, Franklin D. Roosevelt appointed new Justices to the Court. This new court reacted to anticipated judicial excesses of new generations by dismissing the use of the substantive due process to discredit state and federal legislation. Over the next 25 years, there was a period between the old substantive due process and the growth of the new version. During this time, the Court didn’t properly dismiss the principle of substantive due process; occasionally the Court would investigate whether challenged legislation was persistent with this principle. However, the Court’s review of the process was so submissive to the legislation that it was questioned to be highly insignificant. An example of this taking place would be the court case of Williamson v. Lee Optical Co. in 1955.

In the mid-1960s, the Court began to change direction. In the case of Griswold v. Connecticut (1965), the Court recognizes the constitutional right of privacy to declare that a state doesn’t have the right to prohibit the use of contraceptives for married people. In Eisenstadt v. Baird (1972), the verdict was based on equal protection grounds. This court ruled that a state couldn’t ban the use of contraceptives for single people as well. In Roe v. Wade, the court declared that the due process clause of the 14th amendment bans a state from restricting a woman’s access to an abortion during the period of pregnancy before a fetus’s viability. In the Roe case, the court executed a firm version of the substantive due process provision because the criminal ban of abortion defied in Roe diminished a fundamental liberty interest of the woman. Clearly, the Constitution states nothing about abortion as it was nonexistent in that time. Due to this, the court’s decision in Roe v. Wade is a clear representation of judicial activism. The main complaints from critics concern the legitimacy of judicial activism (Colker).

It is imperative to note how society perceived abortion in this day to understand how the court and the public felt about the issues in this case. Throughout the years, public opinion polls have continuously shown a strong split between pro-life and pro-choice supporters. As shown, with a strict split comes many controversies and disagreements. Through the 1990’s, there continued to be a strong negative stigma towards abortion. During the ?80s and ?90s, many abortion clinics were being bombed throughout the country (Kuersten). Conservative people were violently acting out in protest against abortion. It was common to find groups of people outside of abortion clinics to try to scare or intimidate women out of the procedure. Meanwhile, more liberal groups were actively protesting for their right to an abortion. The people of the U.S. knew it was going to be interesting to see if the court would reaffirm or overturn Roe v. Wade as the Supreme Court was now more ideologically conservative than at the time Roe had taken place.

Once the case made it to the Supreme Court, the Court of Appeals was the cause of many of the restrictions; however, not including the spousal notification mandate. In this case, the Court had to come to a conclusion to either affirm or overturn Roe v. Wade. The court had come to a split decision in which the majority of what was previously declared in Roe would remain in place. The appellate court determined that the informed consent and 24-hour waiting period provisions were fair. It was decided that women would be required to be informed of the possible outcomes of the procedure and the woman must verify in writing that she was aware of the risks. For minors, the lower court decided to keep the parental consent provision. The Court also decided to uphold the judicial bypass option where there is an exception in which a minor can ask a court to determine if she is mature enough to make the decision without her parents involved or if notifying the parents could potentially cause harm to the minor.

In the end, there was a 5-4 decision between a deeply divided bench. Justice Sandra Day O’Connor wrote the decision that refused to uphold the pregnancy trimester format found in Roe v. Wade. The Court believed that these regulations based on viability minimized the interest of the potential life at hand. The official opinion for the case was authored by Justices O’Connor, Kennedy, and Souter. The Supreme Court upheld every provision except for the spousal notification provision.

Due to the strict scrutiny of this provision, the appellate court came to the conclusion that it unduly burdened women by possibly open them to spousal abuse, violence, and economic duress by their spouse. The Court ruled that spousal notifications would be overturned because it could potentially prevent a high number of women from getting abortions; this is especially accurate for women who were victims of physical or psychological abuse. The Court declared a right to liberty in the Due Process Clause which mentions bodily integrity and privacy interests as to whether or not to continue or terminate a pregnancy (West). However, the informed consent provisions didn’t consistently work with this right. This ruling gave states the opportunity to have more leeway to set regulations for abortion. State laws are required to balance the constitutional right to abortion and the interest in potential life; a state law is unconstitutional, the Court ruled, if its purpose or effect is to ?place a substantial obstacle in the path of a woman seeking an abortion before the fetus obtains viability’ (Kuersten). Therefore, if a law made abortion increasingly difficult or more expensive to receive, it would be declared unconstitutional.

The ruling in Casey changed the future of abortion indefinitely. This had a deep effect on reproductive healthcare in the United States and changed the legal standard by which regulations are appraised. Although the verdict in Casey re-established a woman’s right to an abortion, it also expanded new restrictive legislation as well. These new regulations have most profoundly been shown to affect young, underprivileged, rural, and minority women. Cases such as these pave the way for future court cases to come about and challenge the state’s role in regulating women’s healthcare. This case was undeniably important to the U.S. and has been used as a precedent in several other cases, such as, Stenberg v. Carhart (2000), Gonzales v. Carhart (2007), and Whole Woman’s Health v. Hellerstedt (2016) (Oyez).

Works Cited

  • Colker, Ruth. “Planned Parenthood v. Casey, 505 U.S. 833 (1992).” Encyclopedia of the
    Supreme Court of the United States, edited by David S. Tanenhaus, vol. 4, Macmillan
  • Reference USA, 2008, pp. 47-49. Gale Virtual Reference Library, https://link.galegroup.com.lsproxy.austincc.edu/apps/doc/CX3241200773/GVRL?u=txshracd2487&sid=GVRL&xid=e56c9923. Accessed 16 Oct. 2018.
  • Craig, Barbara Hinkson, and David M. O’Brien. Abortion and American Politics. Chatham
    House Publ, 1993.
  • Graber, Mark A. “Planned Parenthood V. Casey.” American Governance, edited by Stephen Schechter, et al., vol. 4, Macmillan Reference USA, 2016, pp. 36-37. Gale Virtual Reference Library, https://link.galegroup.com.lsproxy.austincc.edu/apps/doc/CX3629100481/GVRL?u=txshracd2487&sid=GVRL&xid=b1123112. Accessed 2 Oct. 2018.
  • Kuersten, Ashlyn K. “Planned Parenthood v. Casey (1992).” Women’s Rights in the United
    States: A Comprehensive Encyclopedia of Issues, Events, and People, edited by Tiffany
  • K. Wayne and Lois Banner, vol. 4: Third-Wave and Global Feminisms (1990“Present), ABC-CLIO, 2015, pp. 179-180. Gale Virtual Reference Library, https://link.galegroup.com/apps/doc/CX6194000761/GVRL?u=txshracd2487&sid=GVRL&xid=dee422c9. Accessed 28 Sept. 2018.
    Oyez. www.oyez.org/issues/423.
  • Perry, Michael J. “Abortion and the Constitution.” Encyclopedia of the American Constitution,
    edited by Leonard W. Levy and Kenneth L. Karst, 2nd ed., vol. 1, Macmillan Reference USA, 2000, pp. 4-6. Gale Virtual Reference Library, https://link.galegroup.com/apps/doc/CX3425000020/GVRL?u=txshracd2487&sid=GVRL&xid=502d072e. Accessed 16 Oct. 2018.
  • West, Robin. 1994. The Nature of the Right to an Abortion: A Commentary on Professor
    Brownstein’s Analysis of Casey!’ Hastings Law Journal 45: 961“967.
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Abortion Has Been An Astonishingly. (2019, Oct 31). Retrieved December 3, 2022 , from

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