CHIEF JUSTICE REHNQUIST, with whom JUSTICE WHITE, JUSTICE SCALIA, and
JUSTICE THOMAS join, concurring in the judgment in part and dissenting in part.
PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA, ET AL., v.
ROBERT P. CASEY, ET AL.   The joint opinion, following its newly minted variation
on stare decisis, retains the outer shell of Roe v. Wade, 410 U.S. 113 (1973), but beats a
wholesale retreat from the substance of that case. We believe that Roe was wrongly
decided, and that it can and should be overruled consistently with our traditional
approach to stare decisis in constitutional cases. We would adopt the approach of the
plurality in Webster v. Reproductive Health Services, 492 U.S. 490 (1989), and uphold
the challenged provisions of the Pennsylvania statute in their entirety. I In ruling on this
litigation below, the Court of Appeals for the Third Circuit first observed that "this appeal
does not directly implicate Roe; this case involves the regulation of abortions, rather than
their outright prohibition." 947 F.2d 682, 687 (1991). Accordingly, the court directed its
attention to the question of the standard of review for abortion regulations. In attempting
to settle on the correct standard, however, the court confronted the confused state of this
Court's abortion jurisprudence. After considering the several opinions in Webster v.
Reproductive Health Services, supra, and Hodgson v. Minnesota, 497 U.S. 417 (1990),
the Court of Appeals concluded that JUSTICE O'CONNOR's "undue burden" test was
controlling, as that was the narrowest ground on which we had upheld recent abortion
regulations. 947 F.2d, at 693-697 (" When a fragmented court decides a case and no
single rationale explaining the result enjoys the assent of five Justices, the holding of the
Court may be viewed as that position taken by those Members who concurred in the
judgments on the narrowest grounds'" (quoting Marks v. United States, 430 U.S. 188, 193
(1977) (internal quotation marks omitted)). Applying this standard, the Court of Appeals
upheld all of the challenged regulations except the one [505 U.S. 833, 945] requiring a
woman to notify her spouse of an intended abortion. In arguing that this Court should
invalidate each of the provisions at issue, petitioners insist that we reaffirm our decision
in Roe v. Wade, supra, in which we held unconstitutional a Texas statute making it a
crime to procure an abortion except to save the life of the mother. [Fn1] We agree with
the Court of Appeals that our decision in Roe is not directly implicated by the
Pennsylvania statute, which does not prohibit, but simply regulates, abortion. But, as the
Court of Appeals found, the state of our post-Roe decisional law dealing with the
regulation of abortion is confusing and uncertain, indicating that a reexamination of that
line of cases is in order. Unfortunately for those who must apply this Court's decisions,
the reexamination undertaken today leaves the Court no less divided than beforehand.
Although they reject the trimester framework that formed the underpinning of Roe,
Justices O'CONNOR, KENNEDY, and SOUTER adopt a revised undue burden standard
to analyze the challenged regulations. We conclude, however, that such an outcome is an
unjustified constitutional compromise, one which leaves the Court in a position to closely
scrutinize all types of abortion regulations despite the fact that it lacks the power to do so
under the Constitution. ==========Begin Footnotes========== [Fn 1] Two years
after Roe, the West German constitutional court, by contrast, struck down a law
liberalizing access to abortion on the grounds that life developing within the womb is
constitutionally protected. Judgment of February 25, 1975, 39 BVerfGE I (translated in
Jonas & Gorby, West German Abortion Decision: A Contrast to Roe v. Wade, 9 John
Marshall J.Prac. & Proc. 605 (1976)). In 1988, the Canadian Supreme Court followed

JUSTICE STEVENS, concurring in part and dissenting in part. PLANNED
PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA, ET AL., v. ROBERT P.
CASEY, ET AL.  The portions of the Court's opinion that I have joined are more
important than those with which I disagree. I shall therefore first comment on significant
areas of agreement, and then explain the limited character of my disagreement. [505 U.S.
833, 912] I The Court is unquestionably correct in concluding that the doctrine of stare
decisis has controlling significance in a case of this kind, notwithstanding an individual
Justice's concerns about the merits. [Fn1] The central holding of Roe v. Wade, 410 U.S.
113 (1973), has been a "part of our law" for almost two decades. Planned Parenthood of
Central Mo. v. Danforth, 428 U.S. 52, 101 (1976) (STEVENS, J., concurring in part and
dissenting in part). It was a natural sequel to the protection of individual liberty
established in Griswold v. Connecticut, 381 U.S. 479 (1965). See also Carey v.
Population Services International, 431 U.S. 678, 687, 702 (1977) (WHITE, J., concurring
in part and concurring in result). The societal costs of overruling Roe at this late date
would be enormous. Roe is an integral part of a correct understanding of both the concept
of liberty and the basic equality of men and women. =========Begin
Footnotes========= [Fn 1] It is sometimes useful to view the issue of stare decisis
from a historical perspective. In the last 19 years, 15 Justices have confronted the basic
issue presented in Roe v. Wade, 410 U.S. 113 (1973). Of those, 11 have voted as the
majority does today: Chief Justice Burger, Justices Douglas, Brennan, Stewart, Marshall,
and Powell, and Justices BLACKMUN, O'CONNOR, KENNEDY, SOUTER, and
myself. Only four - all of whom happen to be on the Court today - have reached the
opposite conclusion. =========End Footnotes========= Stare decisis also provides a
sufficient basis for my agreement with the joint opinion's reaffirmation of Roe's
postviability analysis. Specifically, I accept the proposition that, [i]f the State is interested
in protecting fetal life after viability, it may go so far as to proscribe abortion during that
period, except when it is necessary to preserve the life or health of the mother. 410 U.S.,
at 163-164; see ante, at 879. I also accept what is implicit in the Court's analysis, namely,
a reaffirmation of Roe's explanation of why the State's obligation to protect the life or
health of the mother [505 U.S. 833, 913] must take precedence over any duty to the
unborn. The Court in Roe carefully considered, and rejected, the State's argument "that

PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA, et al

PLANNED PARENTHOOD
OF SOUTHEASTERN PENNSYLVANIA, et al., Petitioners,

v.

 

Robert P. CASEY,
et al., etc.,

 

and

 

Robert P. CASEY,
et al., etc., Petitioners,

 

v.

 

PLANNED PARENTHOOD
OF SOUTHEASTERN PENNSYLVANIA, et al.

 

Nos. 91-744,
91-902.

 

United States
Supreme Court Official Transcript.

 

Wednesday, April
22, 1992.

 

JUSTICE STEVENS, concurring in part and dissenting in part. PLANNED
PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA, ET AL., v. ROBERT P.
CASEY, ET AL.  The portions of the Court's opinion that I have joined are more
important than those with which I disagree. I shall therefore first comment on significant
areas of agreement, and then explain the limited character of my disagreement. [505 U.S.
833, 912] I The Court is unquestionably correct in concluding that the doctrine of stare
decisis has controlling significance in a case of this kind, notwithstanding an individual
Justice's concerns about the merits. [Fn1] The central holding of Roe v. Wade, 410 U.S.
113 (1973), has been a "part of our law" for almost two decades. Planned Parenthood of
Central Mo. v. Danforth, 428 U.S. 52, 101 (1976) (STEVENS, J., concurring in part and
dissenting in part). It was a natural sequel to the protection of individual liberty
established in Griswold v. Connecticut, 381 U.S. 479 (1965). See also Carey v.
Population Services International, 431 U.S. 678, 687, 702 (1977) (WHITE, J., concurring
in part and concurring in result). The societal costs of overruling Roe at this late date
would be enormous. Roe is an integral part of a correct understanding of both the concept
of liberty and the basic equality of men and women. =========Begin
Footnotes========= [Fn 1] It is sometimes useful to view the issue of stare decisis
from a historical perspective. In the last 19 years, 15 Justices have confronted the basic
issue presented in Roe v. Wade, 410 U.S. 113 (1973). Of those, 11 have voted as the
majority does today: Chief Justice Burger, Justices Douglas, Brennan, Stewart, Marshall,
and Powell, and Justices BLACKMUN, O'CONNOR, KENNEDY, SOUTER, and
myself. Only four - all of whom happen to be on the Court today - have reached the
opposite conclusion. =========End Footnotes========= Stare decisis also provides a
sufficient basis for my agreement with the joint opinion's reaffirmation of Roe's
postviability analysis. Specifically, I accept the proposition that, [i]f the State is interested
in protecting fetal life after viability, it may go so far as to proscribe abortion during that
period, except when it is necessary to preserve the life or health of the mother. 410 U.S.,
at 163-164; see ante, at 879. I also accept what is implicit in the Court's analysis, namely,
a reaffirmation of Roe's explanation of why the State's obligation to protect the life or
health of the mother [505 U.S. 833, 913] must take precedence over any duty to the
unborn. The Court in Roe carefully considered, and rejected, the State's argument "that
the fetus is a  person' within the language and meaning of the Fourteenth Amendment."
410 U.S., at 156. After analyzing the usage of "person" in the Constitution, the Court
concluded that that word "has application only postnatally." Id., at 157. Commenting on
the contingent property interests of the unborn that are generally represented by guardians
ad litem, the Court noted: Perfection of the interests involved, again, has generally been
contingent upon live birth. In short, the unborn have never been recognized in the law as
persons in the whole sense. Id., at 162. Accordingly, an abortion is not "the termination
of life entitled to Fourteenth Amendment protection." Id., at 159. From this holding, there
was no dissent, see id., at 173; indeed, no Member of the Court has ever questioned this
fundamental proposition. Thus, as a matter of federal constitutional law, a developing
organism that is not yet a "person" does not have what is sometimes described as a "right
to life." [Fn2] This has been and, by the Court's holding today, [505 U.S. 833, 914]
remains, a fundamental premise of our constitutional law governing reproductive
autonomy. =========Begin Footnotes========= [Fn 2] Professor Dworkin has made
this comment on the issue: "The suggestion that states are free to declare a fetus a person.

JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JUSTICE WHITE, and
JUSTICE THOMAS join, concurring in the judgment in part and dissenting in part.
PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA, ET AL., v.
ROBERT P. CASEY, ET AL.   My views on this matter are unchanged from those I set
forth in my separate opinions in Webster v. Reproductive Health Services, 492 U.S. 490,
532 (1989) (opinion concurring in part and concurring in judgment), and Ohio v. Akron
Center for Reproductive Health, 497 U.S. 502, 520 (1990) (Akron II) (concurring
opinion). The States may, if they wish, permit abortion on demand, but the Constitution
does not require them to do so. The permissibility of abortion, and the limitations upon it,
are to be resolved like most important questions in our democracy: by citizens trying to
persuade one another and then voting. As the Court acknowledges, "where reasonable
people disagree, the government can adopt one position or the other." Ante, at 851. The
Court is correct in adding the qualification that this "assumes a state of affairs in which
the choice does not intrude upon a protected liberty," ibid., - but the crucial part of that
qualification [505 U.S. 833, 980] is the penultimate word. A State's choice between two
positions on which reasonable people can disagree is constitutional even when (as is
often the case) it intrudes upon a "liberty" in the absolute sense. Laws against bigamy, for
example - with which entire societies of reasonable people disagree - intrude upon men
and women's liberty to marry and live with one another. But bigamy happens not to be a
liberty specially "protected" by the Constitution. That is, quite simply, the issue in this
case: not whether the power of a woman to abort her unborn child is a "liberty" in the
absolute sense; or even whether it is a liberty of great importance to many women. Of
course it is both. The issue is whether it is a liberty protected by the Constitution of the
United States. I am sure it is not. I reach that conclusion not because of anything so
exalted as my views concerning the "concept of existence, of meaning, of the universe,
and of the mystery of human life." Ibid. Rather, I reach it for the same reason I reach the
conclusion that bigamy is not constitutionally protected - because of two simple facts: (1)
the Constitution says absolutely nothing about it, and (2) the longstanding traditions of
American society have permitted it to be legally proscribed. [Fn1] Akron II, supra, at 520
(SCALIA, J., concurring). [505 U.S. 833, 981] ==========Begin
Footnotes========== [Fn 1] The Court's suggestion, ante, at 847-848, that adherence
to tradition would require us to uphold laws against interracial marriage is entirely wrong.
Any tradition in that case was contradicted by a text--an Equal Protection Clause that
explicitly establishes racial equality as a constitutional value. See Loving v. Virginia, 388
U.S. 1, 9 (1967) ("In the case at bar, . . . we deal with statutes containing racial
classifications, and the fact of equal application does not immunize the statute from the
very heavy burden of justification which the Fourteenth Amendment has traditionally
required of state statutes drawn according to race"); see also id., at 13 (Stewart, J.,
concurring in judgment). The enterprise launched in Roe v. Wade, 410 U.S. 113 (1973),
by contrast, sought to establish--in the teeth of a clear, contrary tradition - a value found
nowhere in the constitutional text. ==========End Footnotes========== The Court
destroys the proposition, evidently meant to represent my position, that "liberty" includes
only those practices, defined at the most specific level, that were protected against
government interference by other rules of law when the Fourteenth Amendment was
ratified, ante, at 847 (citing Michael H. v. Gerald D., 491 U.S. 110, 127, n. 6 (1989)
(opinion of SCALIA, J.). That is not, however, what Michael H. says; it merely observes

JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JUSTICE WHITE, and
JUSTICE THOMAS join, concurring in the judgment in part and dissenting in part.
PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA, ET AL., v.
ROBERT P. CASEY, ET AL.   My views on this matter are unchanged from those I set
forth in my separate opinions in Webster v. Reproductive Health Services, 492 U.S. 490,
532 (1989) (opinion concurring in part and concurring in judgment), and Ohio v. Akron
Center for Reproductive Health, 497 U.S. 502, 520 (1990) (Akron II) (concurring
opinion). The States may, if they wish, permit abortion on demand, but the Constitution
does not require them to do so. The permissibility of abortion, and the limitations upon it,
are to be resolved like most important questions in our democracy: by citizens trying to
persuade one another and then voting. As the Court acknowledges, "where reasonable
people disagree, the government can adopt one position or the other." Ante, at 851. The
Court is correct in adding the qualification that this "assumes a state of affairs in which
the choice does not intrude upon a protected liberty," ibid., - but the crucial part of that
qualification [505 U.S. 833, 980] is the penultimate word. A State's choice between two
positions on which reasonable people can disagree is constitutional even when (as is
often the case) it intrudes upon a "liberty" in the absolute sense. Laws against bigamy, for
example - with which entire societies of reasonable people disagree - intrude upon men
and women's liberty to marry and live with one another. But bigamy happens not to be a
liberty specially "protected" by the Constitution. That is, quite simply, the issue in this
case: not whether the power of a woman to abort her unborn child is a "liberty" in the
absolute sense; or even whether it is a liberty of great importance to many women. Of
course it is both. The issue is whether it is a liberty protected by the Constitution of the
United States. I am sure it is not. I reach that conclusion not because of anything so
exalted as my views concerning the "concept of existence, of meaning, of the universe,
and of the mystery of human life." Ibid. Rather, I reach it for the same reason I reach the
conclusion that bigamy is not constitutionally protected - because of two simple facts: (1)
the Constitution says absolutely nothing about it, and (2) the longstanding traditions of
American society have permitted it to be legally proscribed. [Fn1] Akron II, supra, at 520
(SCALIA, J., concurring). [505 U.S. 833, 981] ==========Begin
Footnotes========== [Fn 1] The Court's suggestion, ante, at 847-848, that adherence

CHIEF JUSTICE REHNQUIST, with whom JUSTICE WHITE, JUSTICE SCALIA, and
JUSTICE THOMAS join, concurring in the judgment in part and dissenting in part.
PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA, ET AL., v.
ROBERT P. CASEY, ET AL.   The joint opinion, following its newly minted variation
on stare decisis, retains the outer shell of Roe v. Wade, 410 U.S. 113 (1973), but beats a
wholesale retreat from the substance of that case. We believe that Roe was wrongly
decided, and that it can and should be overruled consistently with our traditional
approach to stare decisis in constitutional cases. We would adopt the approach of the
plurality in Webster v. Reproductive Health Services, 492 U.S. 490 (1989), and uphold
the challenged provisions of the Pennsylvania statute in their entirety. I In ruling on this
litigation below, the Court of Appeals for the Third Circuit first observed that "this appeal
does not directly implicate Roe; this case involves the regulation of abortions, rather than
their outright prohibition." 947 F.2d 682, 687 (1991). Accordingly, the court directed its
attention to the question of the standard of review for abortion regulations. In attempting
to settle on the correct standard, however, the court confronted the confused state of this
Court's abortion jurisprudence. After considering the several opinions in Webster v.
Reproductive Health Services, supra, and Hodgson v. Minnesota, 497 U.S. 417 (1990),
the Court of Appeals concluded that JUSTICE O'CONNOR's "undue burden" test was
controlling, as that was the narrowest ground on which we had upheld recent abortion
regulations. 947 F.2d, at 693-697 (" When a fragmented court decides a case and no
single rationale explaining the result enjoys the assent of five Justices, the holding of the
Court may be viewed as that position taken by those Members who concurred in the
judgments on the narrowest grounds'" (quoting Marks v. United States, 430 U.S. 188, 193
(1977) (internal quotation marks omitted)). Applying this standard, the Court of Appeals
upheld all of the challenged regulations except the one [505 U.S. 833, 945] requiring a
woman to notify her spouse of an intended abortion. In arguing that this Court should
invalidate each of the provisions at issue, petitioners insist that we reaffirm our decision
in Roe v. Wade, supra, in which we held unconstitutional a Texas statute making it a
crime to procure an abortion except to save the life of the mother. [Fn1] We agree with
the Court of Appeals that our decision in Roe is not directly implicated by the
Pennsylvania statute, which does not prohibit, but simply regulates, abortion. But, as the

SUPREME COURT OF THE UNITED STATES PLANNED PARENTHOOD OF
SOUTHEASTERN PENNSYLVANIA, ET AL., v. ROBERT P. CASEY, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. No. 91-744. 505 U.S. 833; 112 S. Ct. 2791; 120 L. Ed. 2d 674 (1992)  April
22, 1992, Argued  June 29, 1992, Decided * * Together with No. 91-902, Casey,
Governor of Pennsylvania, et al. v. Planned Parenthood of Southeastern Pennsylvania et
al., also on certiorari to the same court. Syllabus: At issue are five provisions of the
Pennsylvania Abortion Control Act of 1982: § 3205, which requires that a woman
seeking an abortion give her informed consent prior to the procedure, and specifies that
she be provided with certain information at least 24 hours before the abortion is
performed; § 3206, which mandates the informed consent of one parent for a minor to
obtain an abortion, but provides a judicial bypass procedure; § 3209, which commands
that, unless certain exceptions apply, a married woman seeking an abortion must sign a
statement indicating that she has notified her husband; § 3203, which defines a "medical
emergency" that will excuse compliance with the foregoing requirements; and § 3207(b),
3214(a), and 3214(f), which impose certain reporting requirements on facilities providing
abortion services. Before any of the provisions took effect, the petitioners, five abortion
clinics and a physician representing himself and a class of doctors who provide abortion
services, brought this suit seeking a declaratory judgment that each of the provisions was
unconstitutional on its face, as well as injunctive relief. The District Court held all the
provisions unconstitutional, and permanently enjoined their enforcement. The Court of
Appeals affirmed in part and reversed in part, striking down the husband notification
provision but upholding the others. Held: The judgment in No. 91-902 is affirmed; the
judgment in No. 91-744 is affirmed in part and reversed in part, and the case is remanded.
947 F.2d 682: No. 91-902, affirmed; No. 91-744, affirmed in part, reversed in part, and
remanded. JUSTICE O'CONNOR, JUSTICE KENNEDY, and JUSTICE SOUTER
delivered the opinion of the Court with respect to Parts I, II, and III, concluding that
consideration of the fundamental constitutional question resolved by Roe v. Wade, 410
U.S. 113, principles of institutional integrity, and the rule of stare decisis require that
Roe's essential holding be retained [505 U.S. 833, 834] and reaffirmed as to each of its
three parts: (1) a recognition of a woman's right to choose to have an abortion before fetal
viability and to obtain it without undue interference from the State, whose pre-viability
interests are not strong enough to support an abortion prohibition or the imposition of
substantial obstacles to the woman's effective right to elect the procedure; (2) a
confirmation of the State's power to restrict abortions after viability, if the law contains
exceptions for pregnancies endangering a woman's life or health; and (3) the principle
that the State has legitimate interests from the outset of the pregnancy in protecting the
health of the woman and the life of the fetus that may become a child. Pp. 844-869. (a) A
reexamination of the principles that define the woman's rights and the State's authority
regarding abortions is required by the doubt this Court's subsequent decisions have cast
upon the meaning and reach of Roe's central holding, by the fact that THE CHIEF
JUSTICE would overrule Roe, and by the necessity that state and federal courts and
legislatures have adequate guidance on the subject. Pp. 844-845. (b) Roe determined that
a woman's decision to terminate her pregnancy is a "liberty" protected against state
interference by the substantive component of the Due Process Clause of the Fourteenth
Amendment. Neither the Bill of Rights nor the specific practices of States at the time of

PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA, et al

PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA, et
al., Petitioners,

v.

Robert P. CASEY, et al., etc.

Argued April 22, 1992;

Decided June 29, 1992.

 

BRIEF OF

AGUDATH ISRAEL OF AMERICA

AS AMICUS CURIAE

IN SUPPORT OF ROBERT P. CASEY, et al.

 

ABBA COHEN

AGUDATH ISRAEL OF AMERICA

1730 Rhode Island Ave., NW

Washington, D.C. 20036

(202) 835-0414

 

DAVID ZWIEBEL*

MORTON M. AVIGDOR

AGUDATH ISRAEL OF AMERICA

84 William Street

New York, NY 10038