Casey: Questions to Consider

In Casey, the Court was asked to overrule Roe (and at one time there were 5 votes to do so--Justice Kennedy switched sides at the last minute).

If the Court had overruled Roe, what would have been the effect?

In her law review article on the abortion liberty, Frances Olsen says something interesting: "Those who would leave the abortion issue to the state legislatures implicitly accept Roe's decision that the fetus is not a constitutional person." What is her point? Do you agree?

But Kennedy did switch and joined with O'Connor and Souter to reaffirm the "essential holding" of Roe. What is the essential holding that is now the law of the land under Casey?

Instead of a trimester approach, we get a 2-pronged approach. Now there is only one important line--that of viability. Pre-viabilty there is one rule, post-viability there is another rule.

I. Pre-viability

"The woman's right to terminate her pregnancy before viability is the most central principle of Roe v. Wade."( p. 639)

Prior to viability, the state may not impose an undue burden or substantial obstacle in the path of a woman seeking abortion. The state, however, may regulate pre-viability abortions so long as the regulation does not impose an undue burden on her right to choose abortion. Thus, so long as it does not impose an undue burden, the state "may take measures to ensure that that the woman's choice is informed." (p. 640)

The state may not prohibit pre-viability abortions, but it may attempt to "persuade the woman to choose childbirth over abortion." (P. 640)

In effect, what Casey holds is that a woman has a right to choose abortion pre-viability, but she does not have a right to be free from all regulations governing abortion. The undue burden test replaces the compelling interest test. Regulations that impose an undue burden or substantial obstacle in the path of her right to choose abortion are unconstitutional. Regulations that do not impose an undue burden are constitutional.

II. Post-Viability

"[S]ubsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." p.641

 

III. Stare Decisis

 Although Casey purported to be based upon the Court's faithfulness to stare decisis, the Court eliminated (overruled?) Roe's trimester test, and explicitly overruled several of its prior abortion decisions. Justice Scalia called this a "new, keep what you want and throw away the rest version" of stare decisis.