Introduction
In Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), the Supreme Court of the United States upheld the right to have an abortion. The case arose from the provisions of the Pennsylvania Abortion Control Act of 1982, in which some of the requirements for abortion included a waiting period, spousal notice and parental consent in case of minors. Casey was a divided judgment, and in the end the plurality opinion that was recognised as the principal opinion was jointly written by three justices.
Stare Decisis
At its core, stare decisis means “to stand by things decided”, so in essence the court is bound by its previous decisions. The respect of precedent was acknowledged by the plurality opinion in Casey as well, as the justices engaged in some discussion regarding Roe v. Wade, 410 U.S. 113 (1973) and how the precedent set in Roe should be followed in Casey.
In their analysis, the authors of the plurality opinion stated that even unpopular and disapproved decisions should be upheld unless the rule of the decision had become unworkable. They found no evidence of that having happened to Roe’s essential holding, instead stating that it had changed women’s lives and had been assimilated into the concept of liberty and personal autonomy in the society. As the rule established in Roe was relied upon by many, there had not been any developments of the law that would have made the rule a remnant of abandoned doctrine, and the facts remained the same, the authors of the plurality opinion saw no reason why stare decisis would not apply in Casey.
They also went on to emphasise that the reason why the stare decisis doctrine was so essential to their legal system as a whole had to do with the predictability and consistency of judicial decision-making. The decisions of the court should not be changed purely because the members of the court had changed. Legitimacy of the court came from the fact that the decisions were grounded in legal principles, not on the personal views of the justices, and as such the decisions could survive the test of time.
Changing and replacing
While the court found that there was no reason to overrule Roe, the plurality opinion still ended up changing and replacing some of the criteria for the right to abortion that was established in Roe. The trimester framework used in Roewas overturned and replaced by a viability analysis, which allowed the states to restrict access to abortion after the fetus could be considered viable but at the same time prohibited the states from placing an undue burden on the women’s access to abortion prior to fetus viability.
Similarly, the plurality opinion overturned Roe’s strict scrutiny test in favour of the undue burden standard. With strict scrutiny, the state must demonstrate that a law infringing on a constitutional right is necessary to achieve a compelling state interest, is as narrow as possible and uses the least restrictive means to achieve its purpose. Undue burden standard, as it was applied in Casey, meant that the court had to consider the obstacles to abortion access placed by the law together with the benefits that could come from the burdensome law. As such, the plurality opinion held that the states were not allowed to make laws that would place substantial obstacles to women’s access to abortion prior to fetus viability.
Conclusion
Despite the plurality opinion’s lengthy discussion about the stare decisis doctrine, the court still overturned some parts of Roe. For this reason, Chief Justice Rehnquist argued that the entire section where the plurality considered the stare decisis doctrine was obiter dicta, “said in passing”, and thus was not part of the binding judgment. No matter whether one considers the plurality opinion’s stare decisis analysis obiter dicta or ratio decidendi, the curious nature of stare decisis in Casey is still clearly visible — while the court claims to be bound by the precedent, the court still does change parts of it.
Mississippi Too