In the years after the 1973 Roe v Wade decision established abortion as a constitutional right, several states continued to enact laws restricting the procedure. When Pennsylvania amended its Abortion Control Law of 1982, they put several new restrictions in place. These restrictions required women seeking an abortion to be given certain information and wait 24 hours after consultation, obtain parental consent if they’re under 18, and for married women to notify their husbands. It also required abortion clinics to report the number of abortion procedures they provided.
Five abortion clinics and a doctor representing himself challenged the law. They argued that it violated a women’s right to an abortion, as guaranteed by Roe v Wade. They claimed that the 24 hour waiting period was a particular burden for women who had to travel long distances to reach a clinic, that obtaining parental consent could delay the process, and that notifying a husband could lead to physical and psychological abuse. The district court declared all these provisions unconstitutional, but the Third Circuit Court of Appeals struck down only the requirement to notify the husband, while upholding the other restrictions.
By the time this case reached the Supreme Court, there was a strong conservative majority, meaning that there was a chance that Roe could be overturned entirely.
In a plurality opinion by Justices O’Connor, Kennedy, and Souter, the Court reaffirmed the decision in Roe, but allowed some new restrictions to go into effect. They established an “undue burden” standard for evaluating whether a law violated the right to an abortion. In the Pennsylvania Law, the justices decided that only the requirement that a married woman obtain her husband’s consent met this new “undue burden” standard. This decision also placed the point at which abortion could be regulated at fetal viability, or when the fetus could potentially survive outside the womb.
In their opinion, the justices noted that “although Roe has engendered opposition, it has in no sense proven unworkable,” meaning that the ruling has functioned as a legal precedent.
Additionally, the justices write that “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”
Chief justice Rehnquist authored a dissent arguing that Roe v Wade was wrongly decided, meaning that abortion was not a constitutional right and should not be included in what he called an “all encompassing ‘right to privacy’”. Justice Scalia also wrote a dissenting opinion that was joined by justices Rehnquist, White, and Thomas. Scalia likewise argued that abortion was not a constitutional right and that the decision of whether or not to allow abortion should be left up to individual states.
The undue burden standard set in this case was used to evaluate several abortion laws enacted after this decision. Still, it is a vague precedent that could be interpreted subjectively by different judges. The lawyers in this case disputed whether an “undue burden” should be measured as one placed too highly on an individual, or as a burden placed upon too many people. Also, the fetal viability standard created a situation where laws restricting abortion could change as medical technology improves. States continued to pass more and more restrictive abortion laws in an attempt to overturn the decisions in both Roe v Wade and Planned Parenthood v Casey. Both Roe and Casey were overturned in 2022 by the decision in Dobbs v Jackson Women’s Health, which stated that there is no constitutional basis for the right to an abortion. Because there was no federal law protecting the right to an abortion, the power to legislate the procedure was returned to the states, creating a situation where the access to abortion varies widely across the country.