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Roe and Casey: The two abortion precedents that the Supreme Court can overturn




The decisions, in 1973 and 1992, established constitutional markers while at the same time describing in powerful terms the difficult problems that arose. In Roe against Wade, the judges recognized at the outset “the sensitive and emotional nature of the abortion controversy, of vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that inspire the issue.”
Almost two decades later, a Planned Parenthood v. Casey, the judges stated: “Men and women of good conscience may disagree, and we assume that some will always disagree, about the profound moral and spiritual implications of terminating a pregnancy, even at its earliest stage. Some of us, as individuals, consider abortion to be offensive to our most basic principles of morality, but that cannot control our decision.Our obligation is to define the freedom of all, not to impose our own moral code “.

At the heart of Roe’s decision was the protection of the woman’s abortion decision before viability (when a fetus can survive outside the womb), which judges estimated in 1973 at about 28 weeks. In 1992, the court said advances in neonatal care had reduced this to about 23 weeks of pregnancy, which is roughly where doctors mark the current line. The controversial Mississippi ban would ban abortion after 15 weeks, clearly breaking the line of viability.

Casey’s decision affirmed the basic right to abortion and stressed adherence to precedents, the concept known as “stare decisis”.

The court said in 1992 that preserving precedents was especially important for cases that, despite being politically divisive, had not been altered by new facts or changes in law. A Planned Parenthood v. Casey, the judges stood firm on Roe’s viability cut-off line, saying that “viability marks the first point where the state’s interest in fetal life is constitutionally adequate to justify a legislative ban on abortions. non-therapeutic “.

As the remade Supreme Court, with three new appointments from former President Donald Trump, considers the fate of Roe v. Wade, will inevitably weigh Casey’s principles, when judges emphasized institutional integrity and legitimacy.

The following are the main conclusions of these important decisions and the reason for them:

Roe v. Wade: The quarter frame

Roe v. Wade was decided on January 22, 1973 by a vote of 7 to 2. It was the product of a time when judges challenged partisan alignments. Judge Harry Blackmun (one appointed by President Richard Nixon) wrote the opinion. The only dissidents were Judges Byron White (one appointed by President John F. Kennedy) and William Rehnquist (one appointed by Nixon).

When the court overturned the Texas abortion ban, it ruled that the due process clause of the 14th Amendment, which protects the right to privacy, covers a woman’s right to terminate a pregnancy earlier. of fetal viability.

Roe v.  Wade has been the law of the land for almost 50 years.  Will this matter?

The judges established a quarterly framework as they balanced the woman’s interest with that of the state: during the first trimester (approximately the first three months), the court said the abortion decision had to be made. leave the woman and her doctor; during the second trimester, a state could regulate the abortion procedure in ways reasonably related to a woman’s health; during the last trimester, after fetal viability, the state could promote its “important and legitimate interest in potential life” and prohibit abortion except when necessary for a woman’s life or health.

The judges acknowledged that the Constitution does not contain any explicit reference to a right to privacy, but said that in a late 19th-century ruling line, “the Court has recognized that a right to personal privacy, or a guarantee of certain areas or zones of privacy, exists under the Constitution … These decisions make it clear that only personal rights that can be considered “fundamental” or “implicit in the concept of ordered freedom” are included in this guarantee of personal privacy “.

Roe’s court said the right clearly extends to activities related to marriage, contraception and raising children, and “is broad enough to encompass a woman’s decision to discontinue or not l ‘pregnancy’.

But the right is not absolute, the judges said, referring to the state’s interests “in safeguarding health, maintaining medical standards and protecting potential life.”

As the court set the cut-off point of viability, he explained, “With respect to the important and legitimate interest of the state in potential life, the ‘convincing’ point is viability. This is so because presumably the fetus has the capacity to have a meaningful life outside.the mother’s uterus.The state regulation of protection of fetal life after viability therefore has both logical and biological justifications.If the state is interested in protecting life fetal after viability, may even prohibit abortion during this period, except when necessary. to preserve the life or health of the mother. “

The decision Roe v. Wade followed two sets of oral arguments and months of difficult backstage negotiations. In the first round, two judges had recently fallen ill and left the court and his successors were not yet in place, so there were only seven judges on the bench. Given the weight of the question, the the court decided to submit the case to rearrangements with the nine.

“One’s philosophy, experiences, exposure to the dirty edges of human existence, religious formation, attitudes toward life and family and their values, and the moral standards one sets and seeks observe, are likely to influence and color. one’s thinking and conclusions about abortion, ”Blackmun wrote for the majority.

And he added: “Our task, of course, is to resolve the issue by constitutional measure, free of emotions and predilection.”

New Planned Parenthood standard against Casey: “undue burden”

Planned Parenthood of Southeastern Pennsylvania v. Casey was decided on June 29, 1992, by a 5-4 vote to affirm the central decision of Roe v.

Judges Sandra Day O’Connor, Anthony Kennedy and David Souter they joined forces to write the opinion. Rehnquist, White and Judges Antonin Scalia and Clarence Thomas disagreed. Part of the decision, which maintains the specific restrictions on Pennsylvania abortion, was reduced to a separate 7-7 vote, which Blackmun and Judge John Paul Stevens disagreed with. (The only remaining member of that 1992 court is Thomas.)

As in 1973, the bench was less defined by party politics. The only one of the nine who had not been appointed by a Republican president was White.

Most reaffirmed Roe based on the principles of “stare decisis,” that is, adherence to the precedent. The court reiterated that women are entitled to abortion before fetal viability. He also reaffirmed that a state can restrict abortions after viability, if the law contains exceptions to a woman’s life or health.

The court, however, ruled out the quarterly approach and diluted the standard for when state regulation violates the right to abortion. The court said the quarterly framework had not been sufficiently adapted to the interests of the state and that the new rule should be whether a regulation places an “undue burden” on a woman requesting an abortion.

“The finding of an improper burden is an abbreviation for the conclusion that state regulation has the purpose or effect of putting a substantial obstacle in the way of a woman requesting the abortion of an unviable fetus.” , wrote the plurality.

As the Supreme Court drafted its decision Roe v.  Wade and what it means today

“A statute for this purpose is not valid because the means chosen by the state to promote interest in potential life must be calculated to inform the free choice of women, not to hinder her,” the judges added. . “And a statute that, while encouraging interest in potential life or some other valid state interest, has the effect of putting a substantial obstacle in the way of women’s choice cannot be considered an admissible means. to serve its legitimate purposes “.

The judges of Planned Parenthood v. Casey reiterated that the court had historically granted constitutional protection to personal decisions related to marriage and contraception.

Speaking about the practical importance of Roe’s precedent, the judges stressed that people had relied on the decision for two decades at the time and added: “Women’s ability to participate on equal terms in economic life and social development of the Nation has been facilitated by its ability to control its reproductive life. ”

Given the court’s own integrity, the judges said annulling Roe “would seriously weaken the Court’s ability to exercise judicial power and to function as the Supreme Court of a Nation devoted to the rule of law.”

Judges warned in 1992 against “a surrender to political pressure” and insisted that revoking a decision of a water point “in the absence of the most compelling reason … would subvert the legitimacy of the Court beyond of any serious matter “.