Planned Parenthood v Casey: The Role of Stare Decisis
| DOI | http://doi.org/10.1111/j.1468-2230.1994.tb01953.x |
| Date | 01 May 1994 |
| Published date | 01 May 1994 |
May
19941
Planned Parenthood
v
Casey: The Role
of
Stare Decisis
Planned Parenthood
v
Casey:
The
Role
of
Stare Decisis
Vanessa
Laird
*
Planned Parenthood
v
Casey’
is the most recent in the series
of
United States
Supreme Court decisions addressing the constitutionality of state abortion
restrictions.2 Although
Planned Parenthood
was only decided in mid-1992, it is
clearly the product of another era
-
an era in which a
‘litmus
test’ on abortion and
Roe
v
Wade3
(the Supreme Court’s 1973 decision declaring a woman’s right to
an abortion a ‘fundamental constitutional right’) appeared to govern the selection
of federal
judge^.^
Yet, despite the election of President Clinton,
Planned
Parenthood
is of immediate and continuing relevance not only because it remains
the most recent Supreme Court abortion de~ision,~ but also because of its
extended discussion of
stare decisis.
Five provisions of the Pennsylvania Abortion Control Act of 1982,6 as
amended in 1988 and 1989, were at issue in
Planned Parenthood.
The first of these
provisions states that an abortion may not
be
performed without the voluntary and
informed consent of the woman.’ This provision further specifies that, except in
a medical emergency, consent to an abortion may only be deemed ‘informed’ if it
occurs at least 24 hours after the woman has been told by the attending or referring
physician about the nature and risks of the procedure, the ‘probable gestational age
of the unborn child at the time the abortion is to be performed’* and the risks of
childbirth. The woman must
also
be informed
of
the availability of state-
published, printed
materials
describing the fetus and listing agencies that offer
alternatives to abortion; the liability of the child’s father for child support; and the
availability of medical assistance benefits for prenatal care, childbirth and neonatal
care. The second provision at issue mandates that, except in a medical emergency
or
if
judicially authorised, a minor may not obtain an abortion without the
informed consent of one of her parents. Third, Pennsylvania’s law contains a
spousal
notice requirement, which bars a physician from performing an abortion
*Attorney-Adviser, Office of the Legal Adviser,
US
Department of State.
1
112
s
Ct 2791.
2
A useful
summary
of the Court’s pre-1990 abortion jurisprudence may be found
in
A.I.L. Campbell’s
1990 note, ‘The Constitution and Abortion’
[1990]
53 MLR 238.
3 (1973) 410
US
113.
4 Both President Reagan and President Bush were elected on Republican Party platforms that supported
a constitutional amendment forbidding abortion and the ‘appointment
of
judges who respect traditional
family values and the sanctity of innocent
human
life.’ Dworkin,
Life’s
Dominion
(New York Knopf,
1993) p 8, citing Rosenbaum, ‘The 1992 Campaign: Parties’ Core Differences
in
Platforms,’
Ihe New
York
1Fmes,
16 August 1992,
A26;
see
also Lewis, ‘Clinton
is
Considering Judgeships for Opponents
of Abortion Rights,’
me
New
Yo&
7hes,
18 September 1993, Al.
5
The Court has thus far declined
to
review lower court decisions
that
might have provided a basis for
clarification of its
Planned Parenthood
holding. Most recently. on
15
November 1993. the Court
refused
to
review
Burnes
v
Mississippi,
a Fifth Circuit decision that found constitutional
a
Mississippi
law requring women under 18
to
obtain the consent of both parents
or
a judge before having
an
abortion.
See
Biskupic, ‘Court
Lets
Stand Parental Consent Law on Abortion,’
Ihe
Warhington
Post,
16 November 1993, A13.
6 (1990) 18 Pa Cons Stat 3203-3220. The relevant provisions are reprinted in an appendix
to
the
Court’s
opinion.
See
112
S
Ct 2833-2838.
7
In
1986, the Court found unconstitutional
a
prior version of the Pennsylvania informed consent
provision which was more explictly designed
to
deter women from choosing abortion.
See
Thornburgh
v
American
College
of
Obstetricians
and
Gynecologists
(1986) 476
US
747, 759.
8
18 Pa Cons
Stat
3205(a)(l)(ii).
0
The
Modern
LAW
Review
Llmitcd
1994
46
1
To continue reading
Request your trial