The Supreme Court case that reaffirmed the aspect of Roe v. Wade (1973) that prohibited states from disallowing abortion prior to viability. However, the Court overruled two aspects of the Roe decision: (1) the trimester distinction and (2) the use of strict scrutiny for judicial review of government regulation of abortions.
The Pennsylvania Abortion Control Act of 1982 required: (i) that women seeking abortions must be given certain information at least 24 hours before the abortion was to be performed (the “24-hour waiting period”); (ii) for minors, informed consent of the parents, with a judicial bypass option when the minor could not obtain parental permission; and (iii) that married women seeking an abortion notify her husband of her intent. In the presence of a medical emergency, the Act exempted compliance to the above three provisions.
The Supreme Court, in a decision written jointly by Justices O’Connor, Kennedy, and Souter, upheld the 24-hour waiting period provision and the informed consent provision for minors but struck down the spousal consent provision. The Court characterized the issue as one of “liberty” rather than “privacy”; this opened the door for substantive due process analysis. Referring to past Supreme Court cases such as Griswold v. Connecticut (1965), Eisenstadt v. Baird (1972), and Carey v. Population Services International (1977), the Court put an emphasis on the liberty interests and decisional autonomy of the woman seeking an abortion.
The Court applied stare decisis (the doctrine of looking at precedent, or past decisions on the same issue) to reevaluate Roe v. Wade (1973). The Court analyzed: (1) the workability of Roe; (2) the extent to which people have reasonably relied upon Roe’s continued application (and how their decisional freedom would be affected); (3) the relevance of Griswold and Roe’s ideas of personal autonomy and bodily integrity; and (4) whether the passage of time and advances in maternal health care had altered the factual assumptions underlying Roe. The Court acknowledged that the issue of abortion was highly controversial in society; however, that gave further reason for the Court to uphold precedent and avoid politicization: “To overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court’s legitimacy beyond any serious question. A decision to overrule Roe’s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law.”
Thus, the Court decided to uphold the core holdings of Roe regarding the restrictions on pre-viability abortions. The Court noted that while the idea of “viability” remained, the point of viability itself had shifted to earlier in the pregnancy. The state had an interest in both the potential life of the fetus and in the woman’s health. Post-viability, the state’s interest in potential life becomes compelling, and the state may choose to regulate abortions except where necessary to protect the life or health of the mother. Pre-viability, the Court upheld the protection of the woman’s right to have an abortion, but the Court rejected the Roe’s “rigid trimester framework.”
Instead, states could not impose an “undue burden” on women who, prior to viability of the fetus, sought to have an abortion. An “undue burden” arose if the purpose or effect of the state restriction on abortion placed a “substantial obstacle” on a woman seeking an abortion of a non-viable fetus.
Applying the newly formed undue burden test to the facts, the Court found the spousal notification requirement to be an undue burden that impeded on the woman’s decisional freedom. Thus, the Court struck down this portion of the Pennsylvania law as facially unconstitutional. However, the purpose of the 24-hour waiting period provision was to provide information to the woman. Because the state was acting in the interest of informed consent, such a provision was permissible. The Court also upheld the parental consent requirement.