Planned Parenthood V. Casey (1992): Privacy, Abortion

• Five provisions of the PA Abortion Control Act required that a woman seeking an abortion give her informed consent prior to the procedure, be provided with certain information at least 24 hours before the abortion is performed, required informed consent of one parent for a minor to obtain an abortion, provided that women first notify their husband, and imposes certain reporting requirements on facilities providing abortion services. A three-Justice plurality (O’Connor, Kennedy, Souter) joined with STEVENS and BLACKMUN to preserve a central principle of Roe v. Wade and strike down the provision for spousal notification.

• Majority: O’CONNOR, KENNEDY, SOUTER: In a bitter, 5-4 decision, the Court again reaffirmed Roe, but it upheld most of the PA provisions. For the first time, the justices imposed a new standard to determine the validity of laws restricting abortions. The new standard asks whether a state abortion regulation has the purpose or effect of imposing an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Under this standard, the only provision to fail the undue-burden test was the husband notification requirement.

• Dissent: REHNQUIST, WHITE, SCALIA, THOMAS: Abortion should be treated differently than other “privacy” cases. The right to terminate one’s pregnancy is not a historically “fundamental” right. The joint opinion does not follow precedent, it revises precedent. The states can permit abortion, but the constitution does not require them to do it (Scalia). “We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.” (Scalia)

Bowers V. Hardwick (1986): Fundamental Rights, Sodomy, 8th a.

• Michael Hardwick was observed by a Georgia police officer while engaging in the act of consensual homosexual sodomy with another adult in the bed room of his home. After being charged with violating a Georgia statute that criminalized homosexual sodomy, Hardwick challenged the statute's constitutionality in Federal District Court. Following a ruling that Hardwick failed to state a claim, the court dismissed. The Court of Appeals reversed and remanded, holding that the statute was unconstitutional. Georgia's Atty. Gen., Bowers, appealed. Does the Constitution confer a fundamental right upon homosexuals to engage in consensual sodomy, thereby invalidating the laws of many states which make such conduct illegal?

• Majority: WHITE: No. The Court found that there was no constitutional protection for acts of sodomy, and that states could outlaw those practices. White argued that the Court has acted to protect rights not easily identifiable in the Constitution only when those rights are "implicit in the concept of ordered liberty" (Palko) or when they are "deeply rooted in the Nation's history and tradition" (Griswold). The Court held that the right to commit sodomy did not meet either of these standards. White feared that guaranteeing a right to sodomy would be the product of "judge-made constitutional law" and send the Court down the road of illegitimacy.

• Concurring: POWELL: Suggested that had Hardwick been “tried, much less convicted and sentenced” and had he raised the 8^th A., he might have decided differently. Powell later admitted that he switched his vote to create a majority upholding the Ga. statute. The Court wanted to avoid the issue, and suggested that state legislatures could repeal the old laws, or State Supreme Cts. could strike down the laws on state constitutional grounds.

• Dissent: BLACKMUN, BRENNAN, MARSHALL, STEVENS: “This case is about the right most valued by civilized men,” namely, “the right to be left alone” (Olmstead, Brandeis dissenting) Ga. can not selectively enforce the statute against homosexuals, and there are questions concerning the right to enforce it against all.