Abortion and Stare Decisis

Abortion and Stare Decisis

1. Casey v. Planned Parenthood (1992)

1. 
   Upholds Roe but allows lots of limitations- only strikes down spousal notification.
   
   1. 
      Less about believing Roe was right than stare decisis.
      
      1. 
         Stare decisis is for the court
         
      2. 
         Undue burden does not have a majority.
         

         	Joint Opinion (O’Connor, Souter, Kennedy)	Stevens	Blackmun	Rehnquist (with White, Scalia, Thomas)	Result
         Woman must give informed consent 24 hours prior to abortion	Valid	Invalid	Invalid	Valid	Valid (7-2)
         Minors must get informed consent of parent	Valid	Invalid	Invalid	Valid	Valid (7-2)
         Married woman must notify spouse	Invalid	Invalid	Invalid	Valid	Invalid (5-4)
         Requirements above waived for Medical emergency	Valid	Valid	Invalid	Valid	Valid (8-1)
         Reporting requirements	Valid	Valid	Invalid	Valid	Valid (8-1)

2. 
   Joint opinion
   
   1. 
      Rejects the rigid trimester framework. Instead adopts a binary rule
      
      1. 
         First, prior to viability, the state can regulate abortion only if the regulation doesn’t place an undue burden on the right.
         
      2. 
         Second, after viability, state can regulate and even proscribe abortion to promote its interest in the fetus’s life, so long as it creates exceptions for the preservation of the life or health of the mother (what does ‘health’ mean though?)
         
3. 
   Stevens- generally agrees with the analysis, but not with all the results
   
4. 
   Blackmun – (author of Roe), apply a higher level of scrutiny. Doesn’t subscribe to the undue burden test.
   
5. 
   Dissent – would uphold all parts of the statute and overturn Roe.
   
6. 
   Stare Decisis
   
   1. 
      On one hand, want to say reliance on settled law is very important, but don’t want longevity of a practice to be the justification for its continuance.
      
   2. 
      Four “prudential and pragmatic” considerations (binding precedent, but somewhat flexible- don’t have to follow lock-step)
      
      1. 
         Workability
         
         1. 
            Workability of the constitutional rule articulated in the challenged precedent (not workability of the statute)
            
            1. 
               Garcia- court couldn’t determine what a ‘traditional governmental employee was’- too spongy to administer
               
      2. 
         Reliance
         
         1. 
            Expand from the commercial context to include the people of the US relying on the availability of abortion
            
            1. 
               Suggests that precedents should be overruled quickly, at tension with the anti-vacillation argument for stare.
               
      3. 
         Change in doctrine
         
         1. 
            “Bare remnants of an abandoned doctrine” – implies that precedent can be undermined gradually. Bowers, Hammer.
            
      4. 
         Change in fact or change in perception of constant facts.
         
         1. 
            Dangerous factor in that ‘perception’ can change easily?
            
      5. 
         (factors are over and above the fact that the court thinks the precedent was wrongly decided)
         
      6. 
         Kenji- the factors obscure more than they illuminate. Not as constraining on the court as they appear to be.
         
   3. 
      Court describes two circumstances where the court would fail to receive the benefit of the doubt in overruling prior cases
      
      1. 
         Too much vacillation
         
         1. 
            Not the issue here
            
      2. 
         Where the topic is so heated that it becomes clear that all that’s going on is ideology.
         
   4. 
      Is Casey really just the SC chipping away at Roe while pretending to remain faithful to it? Opening the door to further incursions to the right.
      

1. Stenberg v. Carhart (2000).

7. 
   Concerned a Nebraska statute that prohibited “standard dilation and extraction” procedures. Under the standard D&E procedure, the physician “partially evacuates fetal material through the cervix into the birth canal before curettage.” Court found that prior to viability the ban placed an “undue burden” on the pregnant woman and struck down the statute.
   

1. Gonzales v. Carhart (2007)

8. 
   Cong passed Partial Birth Abortion Act in response to Stenberg, applying to both pre-viability and post-viability fetuses. Prohibits intact Dilation & Extraction, precludes physician from delivering the fetus to a specific anatomical landmark and then engaging in an intentional overt act that kills the partially delivered fetus.
   
   1. 
      Statute does NOT have an exception for health of the mother.
      
9. 
   Held: Not an undue burden on a woman’s right to abortion under Casey.
   
10. 
    Kennedy distinguishes from Stenberg
    
    1. 
       Cong didn’t have to defer to district court’s findings of fact. Cong as a co-equal interpreter of fact.
       
    2. 
       Seems to treat the fetus as a life, departs from previous abortion opinions in terminology, gruesome detail, and talks a lot about women’s choices and regret.
       
11. 
    Interests
    
    1. 
       State’s interest in protecting the medical profession. Doesn’t want doctors doing something that looks like delivering a baby and then killing it.
       
    2. 
       Interest in potential life.
       
    3. 
       Interest in protecting women from themselves. Idea of post-abortion syndrome.
       
       1. 
          This sets Justice Ginsburg off. Argues this idea is archaic and overbroad stereotyping. Worked her entire career to retire these stereotypes.