graymalkn

I've decided to start a new project, where each week I write about one case I've read from school in the week. These won't be the same as the briefs I prepare when studying, which give a full(ish) accounting of all the issues and can get more technical than a general audience may bother reading. I want to go into some legal detail but I also want to look at trends in legal thinking, interesting facts of the case, and so on. If you do bother reading these posts and you want more (or less) legal detail, anecdotes, context, et cetera, say the word.

The first case I want to talk about is Planned Parenthood of Southeastern Pennsylvania v. Casey (citation: 505 U.S. 833 (1992)). This is the biggest abortion-related case since Roe v. Wade, but to me what's interesting about it isn't just the abortion stuff but that it shows an interesting trend in recent US Supreme Court constitutional thinking. This will require a mini crash-course in Constitutional Law, though.

The thorniest, most hotly contested, and doctrinally complex part of the US Constitution is not the Second Amendment or the First Amendment or even the War Powers, but the Fourteenth Amendment. The 14th, passed shortly after the Civil War, deals with the political situation after the war. The part that is the source of so much of American law, from the right to an abortion to desegregation to the Bill of Rights being enforceable against state and local governments, is this: "No State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." From this the courts have found two doctrines to apply to the states: Equal Protection and Due Process (due process is also mentioned in the 5th amendment, but that's enforceable only against the federal government). In short, Due Process means the government has to play fair by actually following the law (including unwritten common law) and by not passing laws that are so vague, capricious, or needlessly restrictive as to be repugnant to our heritage of liberty. Equal Protection means the government needs to have a good reason to make distinctions between people (how good the reason needs to be depends on the distinction). The shorthand is when everyone's rights are being infringed, that's a Due Process case but where only a specific group's rights are being infringed that's Equal Protection.

These are powerful but vague ideas that can apply to a lot of different situations, so the court has had to come up with systems for how to analyze Due Process and Equal Protection. I'll deal with Equal Protection another time, but for Casey we care about Due Process. Traditionally, when a state law is challenged, there are two possible levels of scrutiny: most laws get analyzed under rational basis review, in under which it only has to be shown that a law has some rational relationship to a legitimate state interest. But when there's a fundamental right at stake, the court uses strict scrutiny, under which the law has to be necessary for fulfilling of some important state interest - much higher standard, right? Well here's where Casey comes in.

Pennsylvania passed a law regulating abortion with several provisions:

• an informed consent rule requiring doctors to provide women with information about the health risks of abortion before one could be performed.
• wives were required to give notice to their husbands (with a few exceptions where the wife could get around it with a court order).
• minors were required to receive consent from a parent or guardian.
• a 24-hour waiting period before obtaining an abortion.

Under Roe v. Wade, the right to control one’s own body was considered a fundamental right, meaning abortion laws had to pass strict scrutiny – they had to be necessary for achieving an important state interest (and under Roe the state did have an important interest in preserving the life of the mother but that only overcame the right to control one’s own body in the second trimester, and in potential human life in the third trimester. This strict trimester breakdown was a major point of Roe).

But Casey didn’t follow the strict scrutiny pattern of requiring that a law be necessary to achieve an important state interest. Instead they treated abortion as a “liberty interest” protected by the 14th amendment. Calling things a “liberty interest” is a recent trend that allows the court to bypass the old strict scrutiny analysis with a much more flexible “undue burden” analysis: does the law place an undue burden on the individual’s liberty? This workaround is popular with the center-right part of the court, who have long disliked strict scrutiny.

Oh, what happened in the case itself? The court found that only the spousal notification provision was an undue burden. A major part of their reasoning was deference to previous opinion (the principle of stare decisis) But in the process they did away with the trimester system of Roe and described self bodily self-determination as a “liberty interest” rather than a fundamental right. So in the interest of deferring to Roe abortion is still legal but a much wider range of restrictions can now be placed on it and the right itself has been downgraded.