Editing Roe v. Wade (section)

=== ''Planned Parenthood v. Casey'' ===
[[File:Rehnquist Court 1991-1993.jpg|thumb|1991–1993 Rehnquist Court]]
During initial deliberations for ''[[Planned Parenthood v. Casey]]'' (1992), an initial majority of five justices (Rehnquist, White, Scalia, Kennedy, and [[Clarence Thomas|Thomas]]) were willing to effectively overturn ''Roe''. Justice Kennedy changed his mind after the initial conference,<ref>{{cite news|last=Totenberg|first=Nina|author-link=Nina Totenberg|url=https://www.npr.org/templates/story/story.php?storyId=1745254|title=Documents Reveal Battle to Preserve 'Roe'; Court Nearly Reversed Abortion Ruling, Blackmun Papers Show|publisher=NPR|work=Morning Edition|date=March 4, 2004|access-date=January 30, 2007}}</ref> and Justices O'Connor, Kennedy, and Souter joined Justices Blackmun and Stevens to reaffirm the central holding of ''Roe'',{{sfnp|Greenhouse|2005|pp=203–206}} but instead of justifying the liberty to abort as being based on privacy as in ''Roe'', it justified the liberty in a broader manner. The opinion asserted an individual's liberty to choose concerning family life and also protection from legal enforcement intended to maintain traditional sex roles, writing,<ref>[https://documents.law.yale.edu/sites/default/files/beforeroe2nded_1.pdf Before Roe v. Wade] by Linda Greenhouse and Reva B. Siegel, ''Yale Law School'', 2012, pages 260–261 (pages 276–277 of the pdf)</ref> "Our law affords constitutional protection to personal decisions relating to marriage, [[:wikt:procreation#Noun|procreation]], contraception, family relationships, child rearing, and education.{{nbsp}}..."<ref>[https://www.law.cornell.edu/supremecourt/text/505/833 ''Casey'', 505 U.S.] at 55.</ref> and against the state insisting "upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society."<ref>[https://www.law.cornell.edu/supremecourt/text/505/833 ''Casey'', 505 U.S.] at 56.</ref>

The plurality of justices stated that abortion-related legislation should be reviewed based on the [[undue burden standard]] instead of the strict scrutiny standard from ''Roe''.<ref>[https://repository.uchastings.edu/cgi/viewcontent.cgi?article=1608&context=hastings_constitutional_law_quaterly The Casey Undue Burden Standard: Problems Predicted and Encountered, and the Split over the Salerno Test] by Ruth Burdick, ''Hastings Constitutional Law Quarterly'', Volume 23, Issue 3, Article 8, pages 830–832, (pages 7–9 of the pdf)</ref>

The plurality also found that a fetus was now viable at 23 or 24 weeks rather than at the 28-week line from 1973.<ref>''Casey'', [https://www.law.cornell.edu/supremecourt/text/505/833#fn6-1 505 U.S. at 6.]</ref> They also felt that fetal viability was "more workable" than the trimester framework.<ref>[https://www.law.cornell.edu/supremecourt/text/505/833 ''Casey'', 505 U.S.] at 95.</ref> They abandoned the trimester framework due to two basic flaws: "in its formulation it misconceives the nature of the pregnant woman's interest; and in practice it undervalues the State's interest in potential life, as recognized in ''Roe''."<ref>[https://www.law.cornell.edu/supremecourt/text/505/833 ''Casey'', 505 U.S.] at 102.</ref> Only Justice Blackmun wanted to retain ''Roe'' entirely and issue a decision completely in favor of [[Planned Parenthood]].<ref name=Blackmun/> Prior to this, he had considered a Pennsylvania viability-based law to be unconstitutionally vague in his majority opinion for ''[[Colautti v. Franklin]]''.<ref>[https://supreme.justia.com/cases/federal/us/439/379/ ''Colautti v. Franklin'', 439 U.S. 379 (1979)], ''justia.com'', "The viability determination requirement of § 5(a) is void for vagueness."</ref>

Justice Scalia's dissent asserted that abortion is not a liberty protected by the Constitution for the same reason [[bigamy]] was not protected either: because the Constitution does not mention it, and because longstanding traditions have permitted it to be legally [[Proscription|proscribed]].<ref>[https://www.law.cornell.edu/supremecourt/text/505/833 ''Casey'', 505 U.S.] at 393–394 (Scalia, J., dissenting).</ref> He also asked:<ref>[https://www.law.cornell.edu/supremecourt/text/505/833 ''Casey'', 505 U.S.] at 989 n.5 (Scalia, J., concurring in part and dissenting in part).</ref>

<blockquote>Precisely why is it that, at the magical second when machines currently in use (though not necessarily available to the particular woman) are able to keep an unborn child alive apart from its mother, the creature is suddenly able (under our Constitution) to be protected by law, whereas before that magical second it was not? That makes no more sense than according infants legal protection only after the point when they can feed themselves.</blockquote>