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United States Supreme Court
Ever since the monumental case of Roe v. Wade, the Supreme Court has been inundated with
cases challenging the ruling or seeking to overturn the decision. Opposition to abortion became one of
the litmus tests for choosing nominees to the Supreme Court during the Reagan administration. With the
appointment of conservative justices, the Supreme Court slowly chipped away at abortion rights. After
the bitterly divided 5–4 decision in Webster v. Reproductive Health Services, states and
communities passed tough new laws restricting access to abortion, all anticipating that the court would
soon finish overturning Roe v. Wade. This case was one of the first new laws appealed.
Pennsylvania’s new laws: 1. required doctors to tell women about stages of fetal development; 2. required
women to give formal consent for an abortion, and mandated that all minors receive parental consent; 3.
required married women to notify their spouses of their intent to obtain an abortion; 4. imposed a waiting
period of twenty-four hours after consent before the abortion is given; and 5. established public disclosure
and reporting requirements on doctors who performed abortions. These laws were all challenged by Planned
Parenthood of Southeastern Pennsylvania. The lower courts upheld all of the clauses except the requirement
for married women to inform their spouses, on the grounds that it could expose them to violence and abuse.
Casey fragmented the court. The majority of the court did not want to undermine the authority of
the court by overturning Roe v. Wade and abandoning the principle of stare decisis. They
also did not want to face the social chaos that would arise from depriving a generation raised with abortion
rights protected. Thus a majority adopted Justice O’Connor’s "undue burden" standard and reaffirmed
the central ruling of Roe, that a woman has the right to an abortion before the fetus is viable.
However, the trimester formula of Roe was abandoned, and all of the Pennsylvania restrictions except
the spousal reporting rule were upheld. In the name of judicial restraint, the majority barely upheld
precedent.
The four dissenters wanted to be conservative judicial activists, and they argued that Roe v. Wade
should be completely overturned. The chief justice argued that there was no precedent to break because
Roe was decided wrongly in the first case, and Justice Antonin Scalia argued that abortion is a
political issue and thus up to the states to decide. Since this decision, the Supreme Court has declined
to hear most abortion cases, as if unwilling to deal with the controversy again. The justices have allowed
other appeals courts to decide if the "undue burden" analysis applies. As states continue to
restrict access to abortions, cases will continue to arise. With President Clinton’s appointees [Justices
Ginsberg and Breyer] the court may choose another case to better define the Casey ruling.
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