Constitutional principles and historical development

Political Science

Differing Concepts of Stare Decisis in Planned Parenthood v. Casey

The battle over abortion continues to divide the American public. The case of Roe v. Wade (1973) set precedents that continue to invite legal argument. Roe created a constitutional right to an abortion based largely on the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. In establishing this right, Roe encouraged abortion opponents to push for the de facto abolition of the practice. States, like Pennsylvania, passed laws that placed various restrictions in the way of those seeking the procedure. The case of Planned Parenthood v. Casey (1992) represented a direct challenge to five Pennsylvania laws that attempted to restrict women's access to abortion. Namely, the state mandated a 24-hour waiting period, spousal consent, parental consent for minors, informed consent about the procedure, and also imposed various reporting requirements on abortion performers. The Supreme Court would ultimately rule, in a plurality decision, that the basic right to an abortion would be upheld based on stare decisis. It was the opinion of the largest group of concurring justices - O'Connor, Kennedy, and Souter - that Roe v. Wade had established a legal precedent for which there existed no new information that would require its being overturned. The ideological shifts within the Supreme Court; notwithstanding, Roe would and should continue to serve as a binding precedent. Several other justices, or groups of justices, concurred in at least one aspect of the O'Connor, Kennedy, and Souter opinion. The overall decision upheld the importance of establishing and enforcing precedent in the name of creating a clear and enforceable legal framework.

Much of the argument in favor of maintaining the restrictive Pennsylvania statutes was based ultimately on the notion that Roe was inherently illegitimate. Justices Scalia and Rehnquist held that Roe had been wrongly decided. In contrast, five justices saw the maintenance of stare decisis as essential to the preservation of the "liberty" guaranteed by the Fourteenth Amendment:

Stare decisis was something of a necessary evil; its drawbacks could be justified by the important ends of efficiency ("no judicial system could do society's work if it eyed each issue afresh in every case") and the rule of law ("the very concept of the rule of law... requires... A respect for precedent") that it serves.

For Justices O'Connor et al. Roe had served the very important function of settling a point of law. To have upheld the full range of Pennsylvania's restrictions would have meant the creation of unnecessary and burdensome impediments to abortion. These impediments would have had the effect of severely limiting women's access to abortion. In a way, the arguments in favor of the centrality of stare decisis are similar to many of today's political tussles over "legislating from the bench." The upholding of precedent meant that the right to abortion could be considered a matter settled by Roe, at least until Congress should take firm action in another direction. It was also an affirmation by a majority of those on the Court, that Roe had been properly litigated. The arguments to the contrary raised, in particular by Justices Rehnquist and Scalia, had no bearing on whether the case itself had been properly handled in legal terms. It was established precedent and that was all that mattered.

Furthermore, the decision in Planned Parenthood v. Carey on the basis of stare decisis avoided injecting the Court any further into the larger political and social debates on the abortion issue. By allowing the prior case as precedent, the justices were, in effect, handing over the entire problem to the legislative branch. In this instance, stare decisis offered a chance to sidestep a contentious choice. Planned Parenthood had wanted the case to be seen as a means of defending the right to an abortion. That right was upheld but only by resort to a previous decision. The court was neither independently affirming the position, nor ruling out other potential challenges. As the Pennsylvania statues were struck down on the spirit of the previous decision, the plurality opinion left open the possibility that other state regulations might be used to limit abortion as long as they did not clearly interfere with the constitutional equal protection clause. The winning side got what it wanted, in part - the continued legality of abortion - but it did not achieve a wider victor in the abortion war. Abortion's opponents were still represented by the dissenting justices. They too, used stare decisis in their opinion, but in a quite opposite fashion, laying open another path to those who might still hope to have abortion removed as a legitimate constitutional right.

Indeed, Justices Rehnquist and Scalia attacked the very basis of the plurality's opinion. Rehnquist wrote that, "any theory on the proper scope of stare decisis in constitutional adjudication is bound to be indeterminate," a principle that, followed to its logical conclusion meant that, "virtually any overruling can be attacked or defended on the basis of the [chosen] criteria."

Rehnquist et al. believed that Roe had been wrongly decided in the first place, and should be overruled. Planned Parenthood v. Casey offered an opportunity to revisit the principles of the previous case. Planned Parenthood could have served as a means of reinvestigating the fundamental arguments that had led to the establishment of abortion as a constitutional right, but instead the issue had been avoided entirely. In essence, the Pennsylvania statutes had been struck down based not on their real applicability to the abortion issue, but rather based on their relevance to a prior case, that is, to Roe v. Wade. Rehnquist and his associates wished to view the argument of the state of Pennsylvania as one that spoke to the merits and purpose of the laws concerned. By avoiding these considerations, the other justices were merely delaying a final resolution on the underlying matter of abortion's long-term legality. The use of stare decisis as a form of justification signaled an ability to twist prior precedent to fit current circumstance, or even worse, current desire. The liberal justices had no wish to overturn, or even to re-visit, Roe v. Wade. Stare decisis was but an excuse. Prior decisions did not need to be explained if they could be attributed to precedent. The deeper soul-searching that the Rehnquist approach would have required, together with the necessary intensive exploration of the full range of legal ramifications, would be left to a future court - or to members of Congress.