Reflections on the Twentieth Anniversary of Planned Parenthood v. Casey

Abstract

Regarded (by Michael Paulsen) as the worst constitutional decision of all time, Planned Parenthood v. Casey (1992) was a momentous decision. The Court seemed poised to overrule Roe v. Wade. In the end, Justice Kennedy joined with Justices O'Connor and Souter to author the (in)famous joint opinion, which upheld the essence of Roe v. Wade while abandoning some of Roe's key features. Casey has generated a great deal of commentary and been influential in certain respects.

On the 20th anniversary of the decision, this paper examines the Casey decision and assesses its impact. After a brief description of the decision, the paper will consider the impact of Casey in 3 principal areas--on the law of abortion, on the law of substantive due process, and on the role of stare decisis in constitutional litigation.

Casey has had an important impact on the law of abortion. Casey entrenched the right to abortion and, twenty years and counting, that has been the decision’s principal impact. Casey abandoned Roe's trimester framework and replaced it with the undue burden approach. This is now the governing law but the long term future of the undue burden approach is uncertain.

Casey has also influenced the Court's approach to substantive due process. Casey's language and in particular the sweet-mystery-of life passage has been celebrated and derided. The Court seemed to abandon the expansive approach to substantive due process that the "mystery" passage reflects in the assisted suicide cases in 1997. Yet, several years later, the mystery passage provided strong support for the Court's expansive decision in Lawrence v. Texas (2003). The mystery passage has had mixed reception in the lower courts and its long term future is uncertain.

Casey has had little influence on the Court's approach to stare decisis. The Court's use of Roe as a super-precedent was controversial at the time and was ignored in Lawrence, which overruled Bowers v. Hardwick. The concept, which has continued to be much-discussed in the literature on precedent, has not had any discernible impact on the Court’s treatment of stare decisis. The Court has returned to a largely ad hoc approach to determine whether to adhere to prior decisions.

In sum, it is hard to argue with Paulsen's assessment of Casey. In terms of influence, the decision’s principal impact has been in entrenching the right to abortion for quite some time. Casey, though, may not have much long term impact on the law of abortion. Casey didn't settle the controversy over abortion. Casey’s undue burden approach is the controlling standard. But, depending on whether the Court continues the path suggested by Gonzales v. Carhart, Casey’s influence may well diminish. Casey may not prove to have much influence on the law of substantive due process. The Court seems disinclined to expand the scope of substantive due process. The major exception here is in the area of gay rights but that seems driven more by equality concerns and not the liberty/autonomy focus of Casey. The Casey decision's influence on the Court's approach to stare decisis has not been significant. Casey’s extensive discussion of stare decisis has been ignored in subsequent cases.

Keywords: abortion, stare decisis, substantive due process