Today in 1992: Justice Kennedy saves abortion rights from eradication

June 29, 2012

Today in Legal HistoryYesterday was the Supreme Court’s last day of its October Term 2011, and it saved the release of its most anticipated ruling – that on the constitutionality of the 2010 Affordable Care Act – for last.

Leading up to the release of the decision, many were frustrated with the Court’s decision to leave such an important decision until last.

However, the Supreme Court making the rest of us wait on the edges of our seats is not a practice unique to this past term.

In fact, the Supreme Court routinely delays the release of highly anticipated decisions until the end of its term.

Case in point: Planned Parenthood v. Casey, decided on June 29, 1992 – twenty years ago today.

The Casey opinion was arguably far more widely anticipated than the recent health care decision.


The continued authority of 1973’s Roe v. Wade – and, along with it, that of the constitutional right to an abortion – was riding on the outcome.

Most commentators and Court observers believed that the Supreme Court was going to strike down Roe due to a shift in the political makeup of the sitting Justices.

Justice Harry Blackmun was the only remaining Justice of the seven that joined in the majority opinion of Roe still on the Court when Casey was argued, and Justice John Paul Stevens was the only other known supporter of Roe (he had joined in two other opinions specifically upholding it).

In Webster v. Reproductive Health Services, decided only three years prior to Casey, there were four Justices seemingly in favor of overturning Roe – Chief Justice Rehnquist, and Justices Kennedy, Scalia, and White.

In the three years in between Webster and Casey, two Roe supporters – Justices William Brennan and Thurgood Marshall – were replaced (with David Souter and Clarence Thomas respectively) by a President (George H.W. Bush) committed to reversing the decision.

It was widely believed that at least one of these appointees – if not both – would provide the fifth vote to overturn Roe.

Thus, it was easy to see why the conventional wisdom was that Planned Parenthood v. Casey was going to be the end of Roe v. Wade.

As the health care ruling demonstrated, the conventional wisdom isn’t always correct.

Though it’s true that at least one of the newest appointees (Justice Thomas) voted to overturn Roe, one of the Justices believed to support overturning Roe switched sides.

Anthony KennedyThat Justice was Anthony Kennedy, and it’s because of this switch that the constitutional right to an abortion endures today.

However, abortion rights opponents didn’t come away from the ruling completely empty-handed.

Though Casey preserved the constitutional right to an abortion, it didn’t reaffirm Roe.

Instead, it replaced Roe.

Casey rejected Roe‘s trimester framework, which prohibited all state regulation of abortion (other than the requirement that abortions be performed by physicians) in the first trimester of pregnancy.

Instead, while continuing to treat viability of the fetus as the boundary beyond which a woman no longer has the “right to choose to terminate her pregnancy,” Casey went a step futher.

Namely, the ruling held that states may regulate abortion procedures from the moment of conception in order to defend the “profound” state interest in “potential life.”

It is here that the “undue burden” test – the current test used to determine the constitutionality of state laws restricting women’s access to abortions – was born.

Under the “undue burden” test, a law is unconstitutional if it has “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

Given the vague and subjective language, nearly all abortion restrictions short of outright prohibition pass constitutional muster.

Nevertheless, abortion rights proponents can’t be completely disappointed with the outcome of Casey.

True, the ruling substantially truncated a woman’s constitutional right to an abortion.

However, a diminished right is better than a nonexistent right – which would have been the case had Kennedy not switched sides.