Planned Parenthood v. Casey Archives

Black and white photograph of the front of the Supreme Court. Pro-abortion protestors stand holding signs, one of which reads "I stand with Whole Woman's Health"

A Brief History of Abortion Jurisprudence in the United States

June 9, 2022June 10, 2022 James Jolin Leave a comment

By James R. Jolin

POLITICO’s leak of Supreme Court Justice Samuel Alito’s draft majority opinion in Dobbs v. Jackson Women’s Health Organization suggests that U.S. abortion rights are on the verge of a fundamental shift.

If the official decision, expected this month, hews closely to the draft, the constitutional right to abortion affirmed in Roe v. Wade (1973), Planned Parenthood v. Casey (1992), and other seminal Supreme Court rulings will disappear.

This brief history of abortion rights and jurisprudence in the United States aims to clarify just what is at stake in this case.

Washington, DC, USA, May 5, 2022: people protest the leaked draft Supreme Court opinion overturning Roe v. Wade and the right to abortion

The Leaked Dobbs Opinion, Explained

May 24, 2022May 23, 2022 Chloe Reichel Leave a comment

By Chloe Reichel

On May 2, 2022, Politico published a leaked draft of the majority opinion in Dobbs v. Jackson Women’s Health Organization, which showed the Supreme Court’s intent to overturn the right to abortion as decided in Roe v. Wade.

In response to the leak, the Petrie-Flom Center hosted a discussion with legal historian and Daniel P.S. Paul Visiting Professor of Constitutional Law Mary Ziegler and Petrie-Flom Center Faculty Director, James A. Attwood and Leslie Williams Professor of Law, and Deputy Dean I. Glenn Cohen.

Together, Cohen and Ziegler explained the background of the case, the contents of the draft opinion, and its potential implications not just for abortion access, but also for other constitutionally-protected rights, and for access to reproductive technologies, such as in-vitro fertilization.

The highlights of the conversation have been edited and condensed below.

Reproductive Rights vs. Reproductive Justice: Why the Difference Matters in Bioethics

November 3, 2020November 2, 2020 The Petrie-Flom Center Staff Leave a comment

By Danielle M. Pacia

When conceptualizing the pursuit of reproductive freedom, we must acknowledge the ways that our systems and structures fail Black, Indigenous and people of color (BIPOC) populations.

2020 has been a year filled with anxiety and anger over the COVID-19 pandemic’s disproportionate negative effects on BIPOC populations. Black Lives Matter protests after the unjust deaths of Breonna Taylor, Mia Green, George Floyd, Rayshard Brooks, Riah Milton, and many others whose lives ended far too soon have prompted an overdue awakening. This has caused some to reexamine racism on a personal and institutional level. Like many disciplines in our country, the field of bioethics has begun to recognize how the field reinforces racism within its scholarship.

Part of this effort includes a critical examination of the frameworks we employ when analyzing bioethical subjects and events, and how they may exclude the historical contributions and narratives of BIPOC populations. Merely acknowledging racism is not enough.

Here, I will explain the differences in the terms reproductive justice and reproductive rights and advocate use of the reproductive justice framework instead of the reproductive rights framework. Within bioethics and health law policy, there is often a lack of clarity between the terms, which, in turn, leaves their important conceptual and historical differences ignored.

Substantial Obstacles after June Medical Services: ACOG v. FDA

July 20, 2020July 20, 2020 The Petrie-Flom Center Staff Leave a comment

By Rachel Rebouché

In June Medical Services v. Russo, the Supreme Court held that a Louisiana law requiring that physicians obtain admitting privileges at a nearby hospital was unconstitutional. Had the law taken effect, all but one provider would have lost the ability to deliver abortion care in the state. Despite the result, a number of commentators have expressed concern about the future of abortion rights. The source of their concerns is the Chief Justice’s application of the undue burden test—the standard for judging the constitutionality of an abortion restriction—established in Planned Parenthood v. Casey.

Justice Breyer, who wrote the judgment of the Court in June Medical Services, balanced the benefits and burdens conferred by the law, finding that the statute offered no benefit for people’s health and created significant burdens on the delivery of abortion. The admitting-privileges requirement does not protect patients’ safety because complications from abortion are rare and thus rarely will a patient need admission to a hospital. Moreover, admitting privileges, which the district court found each provider had pursued in good faith, do not determine a physician’s competency or credentials.

Although Chief Justice Roberts’s concurrence provided the fifth vote to strike down the law, Roberts wrote separately to emphasize that whether the Louisiana law had any identifiable benefit for patients was immaterial. The Court need only address what burdens the law imposed—if a law establishes “significant obstacles” to abortion. Roberts’s concurrence clearly departs from Breyer’s approach of weighing the law’s benefits against its burdens. Breyer’s formulation would render a law unconstitutional if it had no health benefits but erected a minimal obstacle to abortion care. Roberts’s approach would not: a law only fails the undue burden test—no matter how unsuccessful legislation is in achieving its purported goals—if the restriction renders abortion access substantially more difficult.

Upholding Precedent While Rewriting It in June Medical Services v. Russo

July 17, 2020July 17, 2020 The Petrie-Flom Center Staff Leave a comment

By Mary Ziegler

Before the Supreme Court’s decision in June Medical Services v. Russo, many wondered if the Supreme Court’s new conservative majority would begin to do away with precedents, starting with the 2016 decision in Whole Woman’s Health v. Hellerstedt. But Chief Justice John Roberts voted with his liberal colleagues that Louisiana’s admitting privileges law could not “stand under our precedents.” And yet he felt curiously free to rewrite the very same precedents he claimed to respect.

Abortion rights protest following the Supreme Court decision for Whole Women's Health in 2016

Reflections on the Transnational Significance of June Medical

July 16, 2020July 16, 2020 The Petrie-Flom Center Staff Leave a comment

By Fiona de Londras

By any ordinary standard of comparativism, one might suggest that the abortion jurisprudence of the United States is so particular to its own circumstances that it ought to be considered sui generis.

But U.S. Supreme Court abortion law decisions always attract international attention, not only because of the (perhaps peculiarly) combative nature of U.S. abortion law, but also because the United States is something of a bellwether for abortion law reform.

This is, in truth, rather undesirable. U.S. abortion law is shaped by the idiosyncrasies of at least three power struggles playing out in particular ways in the American politico-legal landscape: contestations between anti-abortion and pro-choice politics and activism, constitutionalist struggles between judicial and legislative decision-makers, and constitutional tensions between states and federal authority.

Fairview Heights, IL—Jan 5, 2020; Sign on medical clinic announces Planned Parenthood branch is now open, the southern Illinois clinic was built to serve St Louis after Missouri restricted abortions.

Preventing Access to Abortion is Prima Facie an “Undue Burden”

July 16, 2020July 16, 2020 The Petrie-Flom Center Staff Leave a comment

By Louise P. King

As an obstetrician/gynecologist, lawyer, and bioethicist, when I read Supreme Court rulings on reproductive rights, I am struck by how little the Court understands the restrictive and burdensome nature of our medical system for women.

The latest decision on reproductive rights, June Medical Services LLC v Russo, does not bolster my confidence in the Court. The decision was narrowly won. While Chief Justice John Roberts’ concurrence gives deference to precedent, it and the dissent suggest that a slightly different statutory requirement — equally and unnecessarily restrictive of access to needed care — could, in the future, be upheld.

This is a problem given that the U.S. health care system is already rife with and primed for gender-based inequities.

The Narrow Victory of June Medical Might Pave the Way for Future Abortion Restrictions

July 15, 2020July 14, 2020 The Petrie-Flom Center Staff Leave a comment

By David S. Cohen

June Medical v. Russo was a victory for Louisiana’s three independent abortion clinics and the thousands of people in the state they can now continue to serve. But, going forward, Chief Justice Roberts’ concurring opinion could pave the way for federal courts to bless a host of abortion restrictions that would make access to care more difficult.

To understand what might happen based on the Chief’s opinion, it’s instructive to look at Planned Parenthood v. Casey. In that case, the Court announced the undue burden test, a test that in theory could have had bite. Per the decision, “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.”

However, in Casey itself, the Court applied the standard and upheld almost all of the restrictions before it — a parental interference requirement, an abortion-only extreme informed consent process, and a 24-hour mandatory delay. The only provision the Court struck down under the undue burden test was the requirement that a married woman notify her husband before having an abortion.

The South Dakota Effect: A Potential Blow to Abortion Rights

June 15, 2015June 15, 2015 astein Leave a comment

By Alex Stein

Many of us are familiar with the “California Effect.” California’s hydrocarbon and nitrogen oxide emission standards for cars are more stringent than the federal EPA standards and more costly to comply with. Yet, California’s emission standards have become the national standard since automobile manufacturers have found it too expensive to produce cars with different emission systems – one for California and another for other states – and, obviously, did not want to pass up on California, the biggest car market in the nation.

Such regulatory spillover may also occur in the abortion regulation area as a consequence of the legislative reforms implemented by South Dakota and thirteen other states. These reforms include statutory enactments that require doctors to tell patients that abortion might lead to depression, suicidal thoughts and even to suicide. Failure to give this warning to a patient violates the patient’s right to informed consent and makes the doctor liable in torts. Read More

Tag: Planned Parenthood v. Casey