Editing Planned Parenthood v. Casey (section)

==Supreme Court's opinions==
Except for the three opening sections of the O'Connor–Kennedy–Souter opinion, ''Casey'' was a divided judgment, as no other sections of any opinion were joined by a majority of justices. The plurality opinion jointly written by Justices O'Connor, Kennedy, and Souter was recognized as the principal opinion.<ref>S. Ct. Style G. § 10.4 (2016)</ref>{{efn|The term “principal opinion” has been used to refer to an opinion, part of which is a majority opinion and part of which is a plurality opinion, see Parker v. Randolph, 442 U. S. 62, 77, 78, 80 (1979) (Blackmun, J., concurring in part and concurring in judgment), and to an opinion, part of which is a majority opinion and part of which is a nonplurality opinion, see Idaho v. Coeur d’Alene Tribe of Idaho, 521 U. S. 261, 288-297 (1997) (O’Connor, J., concurring in part and concurring in judgment).}}

===O'Connor, Kennedy, and Souter plurality opinion===
In the 1992 case of ''Planned Parenthood v. Casey'', the authors of the plurality opinion abandoned ''Roe's'' strict trimester framework but maintained its central holding that women have a right to have an abortion before viability.<ref name="Casey"/> ''Roe'' had held that statutes regulating abortion must be subject to "[[strict scrutiny]]"—the traditional Supreme Court test for impositions upon fundamental [[Constitution of the United States|Constitutional]] rights. ''Casey'' instead re-adopted the lower, [[undue burden]] standard for evaluating state abortion restrictions,{{efn|"To protect the central right recognized by ''Roe v. Wade'' while at the same time accommodating the State's profound interest in potential life, we will employ the undue burden analysis as explained in this opinion. An undue burden exists, and therefore, a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability."<ref name="Casey"/>}} but re-emphasized the right to abortion as grounded in the general sense of liberty and privacy protected under the constitution.{{efn|"Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall "deprive any person of life, liberty, or property, without due process of law." The controlling word in the cases before us is 'liberty'."<ref name="Casey"/>}} The authors of the plurality opinion likewise noted the U.S. government's previous challenges to ''Roe v. Wade''{{efn|"Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, ''Roe v. Wade'' (1973), that definition of liberty is still questioned. Joining the respondents as ''[[amicus curiae]]'', the United States, as it has done in five other cases in the last decade, again asks us to overrule ''Roe''."<ref name="Casey"/>}} and expounded on the concept of "liberty."{{efn|"Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Our cases recognize "the right of the ''individual'', married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Our precedents "have respected the private realm of family life which the state cannot enter." These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State."<ref name="Casey"/>}}

====Upholding the "essential holding" in ''Roe''====
{{multiple image
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 | footer = Justices [[Anthony Kennedy]], [[David Souter]], and [[Sandra Day O'Connor]], all appointed by Republican presidents, defied expectations and helped craft the three-justice plurality opinion that refused to overturn ''Roe''.
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The plurality opinion stated that it was upholding what it called the "essential holding" of ''Roe''. The essential holding consisted of three parts: (1) Women had the right to have an abortion prior to viability and to do so without undue interference from the State; (2) the State could restrict the abortion procedure post-viability, so long as the law contained exceptions for pregnancies which endangered the woman's life or health; and (3) the State had legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.<ref>''Casey'', 505 U.S. at 846.</ref> The plurality asserted that the fundamental right to abortion was grounded in the [[Due Process Clause]] of the Fourteenth Amendment, and the plurality reiterated what the Court said in ''[[Eisenstadt v. Baird]]'': "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."

====''Stare decisis'' analysis====
The plurality's opinion included a thorough discussion on the doctrine of ''[[stare decisis]]'' (respect of precedent), and provided a clear explanation for why the doctrine had to be applied in ''Casey'' with regards to ''Roe''. The authors of the plurality opinion emphasized that ''stare decisis'' had to apply in ''Casey'' because the ''Roe'' rule had not been proven intolerable; the rule had become subject "to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation"; the law had not developed in such a way around the rule that left the rule "no more than a remnant of abandoned doctrine"; and the facts had not changed, nor viewed differently, to "rob the old rule of significant application or justification."<ref>''Casey'', 505 U.S. at 854–60.</ref> The plurality acknowledged that it was important for the Court to stand by prior decisions, even those decisions some found unpopular, unless there was a change in the fundamental reasoning underpinning the previous decision. The authors of the plurality opinion, making a special note of the precedential value of ''Roe v. Wade'', and specifically how women's lives were changed by that decision,<ref name="auto">{{Cite news |last1=Gerstein |first1=Josh |last2=Ward |first2=Alexander |date=May 2, 2022 |title=Supreme Court has voted to overturn abortion rights, draft opinion shows |work=[[Politico]] |url=https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473 |access-date=May 2, 2022|archive-url=https://web.archive.org/web/20220504032815/https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473|archive-date=May 4, 2022}}</ref> stated,
<blockquote>The sum of the precedential enquiry to this point shows Roe's underpinnings unweakened in any way affecting its central holding. While it has engendered disapproval, it has not been unworkable. An entire generation has come of age free to assume Roe's concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left Roe's central holding a doctrinal remnant.<ref name="Casey, 505 U.S. at 860">''Casey'', 505 U.S. at 860.</ref><ref name="auto"/></blockquote>
The authors of the plurality opinion also acknowledged the need for predictability and consistency in judicial decision making. For example,<blockquote>Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution."<ref>''Casey'', 505 U.S. at 866–67.</ref></blockquote>
The plurality went on to analyze past judgments refusing to apply the doctrine of stare decisis, such as ''Brown v. Board of Education''. There, the authors of the plurality opinion explained, society's rejection of the "Separate but Equal" concept was a legitimate reason for the ''[[Brown v. Board of Education]]'' court's rejection of the ''[[Plessy v. Ferguson]]'' doctrine.<ref>''Casey'', 505 U.S. at 862–64.</ref> Emphasizing the lack of need to overrule the essential holding of ''Roe'', and the Court's need to not be seen as overruling a prior decision merely because the individual members of the Court had changed, the authors of the plurality opinion stated,
<blockquote>Because neither the factual underpinnings of Roe's central holding nor our understanding of it has changed (and because no other indication of weakened precedent has been shown), the Court could not pretend to be reexamining the prior law with any justification beyond a present doctrinal disposition to come out differently from the Court of 1973.<ref>''Casey'', 505 U.S. at 864.</ref></blockquote>
The plurality further emphasized that the Court would lack legitimacy if it frequently changed its Constitutional decisions, stating,
<blockquote>The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make.<ref>''Casey'', 505 U.S. at 865–66.</ref></blockquote>
Since the O'Connor-Kennedy-Souter plurality overruled some portions of ''Roe v. Wade'' despite its emphasis on ''stare decisis'', Chief Justice Rehnquist in dissent argued that this section was entirely ''[[obiter dicta]]''. All these opening sections were joined by Justices Blackmun and Stevens for the majority. The remainder of the decision did not command a majority, but at least two other Justices concurred in judgment on each of the remaining points.

====Viability of the fetus====
Although it upheld the "essential holding" in ''Roe'', and recognized that women had some constitutional liberty to terminate their pregnancies, the O'Connor–Kennedy–Souter plurality overturned the ''Roe'' trimester framework in favor of a [[Fetal viability|viability analysis]]. The ''Roe'' trimester framework completely forbade states from regulating abortion during the first trimester of pregnancy, permitted regulations designed to protect a woman's health in the second trimester, and permitted prohibitions on abortion during the third trimester (when the fetus becomes viable) under the justification of fetal protection, and so long as the life or health of the mother was not at risk.<ref>''Casey'', 505 U.S. at 872; {{ussc|name=Roe v. Wade|volume=410|page=113|pin=163–66|year=1973}}.</ref> The plurality found that continuing advancements in medical technology had proven that a fetus could be considered viable at 23 or 24 weeks rather than at the 28 weeks previously understood by the Court in ''Roe''.<ref name="Casey, 505 U.S. at 860"/> The plurality thus redrew the line of increasing state interest at viability because of increasing medical accuracy about when fetus viability takes place. Likewise, the authors of the plurality opinion felt that fetus viability was "more workable" than the trimester framework.<ref>''Casey'', 505 U.S. at 870.</ref>
Under this new fetus viability framework, the plurality held that at the point of viability and subsequent to viability, the state could promote its interest in the "potentiality of human life" by regulating, or possibly proscribing, abortion "except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."<ref>''Casey'', 505 U.S. at 879.</ref> Prior to fetus viability, the plurality held, the State can show concern for fetal development, but it cannot pose an undue burden on a woman's fundamental right to abortion.<ref>''Casey'', 505 U.S. at 873, 876–78.</ref> The plurality reasoned that the new pre- and post-viability line would still uphold the essential holding of ''Roe'', which recognized both the woman's constitutionally protected liberty, and the State's "important and legitimate interest in potential life."{{efn|"[T]o protect the central right recognized by ''Roe v. Wade'' while at the same time accommodating the State's profound interest in potential life, we will employ the undue burden analysis as explained in this opinion.").<ref>''Casey'', 505 U.S. at 871</ref>}}

====Undue burden standard====
[[File:Sandra Day O'Connor.jpg|right|thumb|150px|Justice [[Sandra Day O'Connor]] was one of the three authors of the "undue burden" standard that she first advocated for in earlier abortion rulings.]]

In replacing the trimester framework with the viability framework, the plurality also replaced the strict scrutiny analysis under ''Roe'', with the "undue burden" standard previously developed by O'Connor in her dissent in ''[[City of Akron v. Akron Center for Reproductive Health|Akron v. Akron Center for Reproductive Health]]''.<ref>{{ussc|name=City of Akron v. Akron Center for Reproductive Health|volume=462|page=416|pin=|year=1983}}.</ref> According to the dissenters in ''Akron'', the undue burden standard had been the governing rule in Roe's first decade. A legal restriction posing an undue burden is one that has "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."<ref name=Casey877>''Casey'', 505 U.S. at 877.</ref> An undue burden is found even where a statute purports to further the interest of potential life or another valid state interest, if it places a substantial obstacle in the path of access to abortion.<ref name=Casey877/> The Supreme Court in the 2016 case ''[[Whole Woman's Health v. Hellerstedt]]'' clarified what the 'undue burden' test requires: "''Casey'' requires courts to consider the burdens a law imposes on abortion access together with the benefits those laws confer."<ref>''[[Whole Woman's Health v. Hellerstedt]]'', {{ussc|579|582|2016|el=no}}, [https://www.supremecourt.gov/opinions/15pdf/15-274_p8k0.pdf] {{Webarchive|url=https://web.archive.org/web/20170623015327/https://www.supremecourt.gov/opinions/15pdf/15-274_p8k0.pdf|date=2017-06-23}}, Opinion of the Court, page 19-20.</ref><ref name="20160627SCOTUSGans">{{cite news |url=http://www.scotusblog.com/2016/06/symposium-no-more-rubber-stamping-state-regulation-of-abortion/ |title=Symposium: No more rubber-stamping state regulation of abortion |date=June 27, 2015 |work=SCOTUSblog |author=David H. Gans |access-date=June 29, 2016 |quote=[T]he majority held that the 'undue burden' standard announced in ''Planned Parenthood v. Casey'' 'requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.'}}</ref> The Supreme Court further clarified in the 2020 ''[[June Medical Services, LLC v. Russo]]'' opinion written by Justice [[Stephen Breyer]] with respect to the undue burden standard: "[T]his standard requires courts independently to review the legislative findings upon which an abortion-related statute rests and to weigh the law's "asserted benefits against the burdens" it imposes on abortion access. 579 U.S., at ___(slip op., at 21) (citing ''[[Gonzales v. Carhart]]'', 550 U. S. 124, 165 (2007))."<ref>{{cite web |title=June Medical Services, L.L.C. et al v. Russo, Interim Secretary, Louisiana Department of Health and Hospitals (slip opinion) |url=https://www.supremecourt.gov/opinions/19pdf/18-1323_c07d.pdf |archive-url=https://web.archive.org/web/20200630004848/https://www.supremecourt.gov/opinions/19pdf/18-1323_c07d.pdf |archive-date=June 30, 2020 |page=7}}</ref> In ''[[Whole Woman's Health v. Hellerstedt]]'' the court described the undue burden standard in its overall context with these words:

{{blockquote|We begin with the standard, as described in ''Casey''. We recognize that the "State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient." ''Roe v. Wade'', 410 U. S. 113, 150 (1973). But, we added, "a statute which, while furthering [a] valid state interest, has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends." ''Casey'', 505 U. S., at 877 (plurality opinion). Moreover, "[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right." ''Id''., at 878.<ref>''[[Whole Woman's Health v. Hellerstedt]]'', {{ussc|579|___|2016|el=no}}, [https://www.supremecourt.gov/opinions/15pdf/15-274_p8k0.pdf] {{Webarchive|url=https://web.archive.org/web/20170623015327/https://www.supremecourt.gov/opinions/15pdf/15-274_p8k0.pdf |date=2017-06-23 }}, Opinion of the Court, page 19.</ref>}}

In applying the new undue burden standard, the plurality overruled ''[[City of Akron v. Akron Center for Reproductive Health]]'', 462 U.S. 416 (1983) and ''[[Thornburgh v. American College of Obstetricians and Gynecologists]]'', 476 U.S. 747 (1986),<ref>{{ussc|name=Thornburgh v. American College of Obstetricians and Gynecologists|volume=476|page=747|pin=|year=1986}}.</ref> each of which applied "[[strict scrutiny]]" to abortion restrictions.<ref>{{cite journal |quote=The [[undue burden standard]] is binding on lower courts, see ''Marks v. United States'', 430 U.S. 188, 193 (1977) (defining the holding of a divided Court as the view of the members of the Court who concurred on the narrowest grounds), although for stare decisis purposes, only the portion of the three-Justice opinion that garnered five votes counts as a full-fledged precedent in the Supreme Court itself. |first=Michael C. |last=Dorf |title=Incidental Burdens on Fundamental Rights |volume=109 |journal=[[Harvard Law Review]] |issue=6 |year=1996 |pages=1175–1251 |doi=10.2307/1342214 |jstor=1342214|url=https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1104&context=facpub }} [at Note 197]</ref>

Applying this new standard to the challenged Pennsylvania Act, the plurality struck down the spousal notice requirement, finding that for many women, the statutory provision would impose a substantial obstacle in their path to receive an abortion.<ref>''Casey'', 505 U.S. at 893–94.</ref> The plurality recognized that the provision gave too much power to husbands over their wives ("a spousal notice requirement enables the husband to wield an effective veto over his wife's decision"), and could worsen situations of spousal and child abuse.<ref>''See'' 897, 892–94 (noting that women may not inform their husbands because of "justifiable fears of physical abuse" or fear that notification will "provoke further instances of child abuse", and women may also fear reporting past abuse to the State because of the other consequences that can come from that).</ref> In finding the provision unconstitutional, the authors of the plurality opinion clarified that the focus of the undue burden test is on the group "for whom the law is a restriction, not the group for whom the law is irrelevant."<ref>''Casey'', 505 U.S. at 894.</ref> Otherwise stated, courts should not focus on what portion of the population is affected by the legislation, but rather on the population the law would restrict.{{efn|"The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant."<ref>''Casey'', 505 U.S. at 894</ref>}} The plurality upheld the remaining contested regulations – the State's informed consent and 24-hour waiting period, parental consent requirements, reporting requirements, and the "medical emergencies" definition – holding that none constituted an undue burden.<ref>''Casey'', 505 U.S. at 880 (medical emergency), 887 (informed consent and 24-hour waiting period), 899 (parental consent), and 900 (finding that recordkeeping and reporting requirements are constitutional, except those related to spousal notice).</ref>

Notably, when the authors of the plurality discuss the right to privacy in the joint opinion, it is all within the context of a quotation or paraphrase from ''Roe'' or other previous cases. The authors of the plurality opinion do not, however, explicitly or implicitly state that they do not believe in a right to privacy, or that they do not support the use of privacy in ''Roe'' to justify the fundamental right to abortion. Justice Blackmun would not agree with an implication asserting otherwise, stating "[t]he Court today reaffirms the long recognized rights of privacy and bodily integrity."

====Key judgment ====

Chief Justice [[John Roberts]]'s concurrence in the 2020 ''[[June Medical Services, LLC v. Russo]]'' case noted the key outcomes in ''Casey'': "The several restrictions that did not impose a substantial obstacle were constitutional, while the restriction that did impose a substantial obstacle was unconstitutional."<ref>{{cite web |author=[[John Roberts]]|title=June Medical Services, L.L.C. et al v. Russo, Interim Secretary, Louisiana Department of Health and Hospitals (slip opinion) |url=https://www.supremecourt.gov/opinions/19pdf/18-1323_c07d.pdf |archive-url=https://web.archive.org/web/20200630004848/https://www.supremecourt.gov/opinions/19pdf/18-1323_c07d.pdf |archive-date=June 30, 2020 |page=55}}</ref> Before an abortion regulation can be struck down as unconstitutional there must be a determination that this regulation imposes a substantial obstacle in light of [[#Undue burden standard|the undue burden standard explained in the section above]].<ref>{{cite web |author=[[John Roberts]]|title=June Medical Services, L.L.C. et al v. Russo, Interim Secretary, Louisiana Department of Health and Hospitals (slip opinion) |url=https://www.supremecourt.gov/opinions/19pdf/18-1323_c07d.pdf |archive-url=https://web.archive.org/web/20200630004848/https://www.supremecourt.gov/opinions/19pdf/18-1323_c07d.pdf |archive-date=June 30, 2020 |pages=54, 56 and 57}}</ref> In ''Casey'' "the justices imposed a new standard to determine the validity of laws restricting abortions. The new standard asks whether a state abortion regulation has the purpose or effect of imposing an "undue burden", which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability."<ref>{{cite web |title=Planned Parenthood of Southeastern Pennsylvania v. Casey |url=https://www.oyez.org/cases/1991/91-744 |publisher=[[Oyez Project|Oyez.org]] |access-date=July 3, 2020 |archive-url=https://web.archive.org/web/20200716131316/https://www.oyez.org/cases/1991/91-744 |archive-date=July 16, 2020 |url-status=bot: unknown }}</ref><ref>{{cite web |title=Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) (Syllabus) |url=https://supreme.justia.com/cases/federal/us/505/833/ |publisher=Justia US Supreme Court Center |access-date=July 3, 2020 |archive-url=https://web.archive.org/web/20200628040642/https://supreme.justia.com/cases/federal/us/505/833/ |archive-date=June 28, 2020 |quote=A person retains the right to have an abortion, established by ''Roe v. Wade'', but the state’s compelling interest in protecting the life of an unborn child means that it can ban an abortion of a viable fetus under any circumstances except when the health of the mother is at risk. Also, laws restricting abortion should be evaluated under an undue burden standard rather than a strict scrutiny analysis. ... Its other notable revision of Roe was its replacement of strict scrutiny with an undue burden standard that was more lenient to the state. O'Connor built on her dissenting opinion from the Court's 1983 decision in ''Akron v. Akron Center for Reproductive Health'' in holding that restrictions on abortion before the fetus was viable were constitutional unless they posed a substantial obstacle to the woman seeking an abortion.}}</ref> The key judgment of ''Casey'' can be summed up as follows: "Under ''Casey'', abortion regulations are valid so long as they do not pose a substantial obstacle and meet the threshold requirement of being "reasonably related" to a "legitimate purpose." ''Id.'', at 878; ''id.'', at 882 (joint opinion)."<ref>{{cite web |author=[[John Roberts]]|title=June Medical Services, L.L.C. et al v. Russo, Interim Secretary, Louisiana Department of Health and Hospitals (slip opinion) |url=https://www.supremecourt.gov/opinions/19pdf/18-1323_c07d.pdf |archive-url=https://web.archive.org/web/20200630004848/https://www.supremecourt.gov/opinions/19pdf/18-1323_c07d.pdf |archive-date=June 30, 2020 |page=55 }}</ref>

===Concurrence/dissents===
Justices Harry Blackmun and John Paul Stevens, who both joined the plurality in part, also each filed opinions [[concurring]] in the Court's judgment in part and dissenting in part. Chief Justice William Rehnquist filed an opinion concurring in the Court's judgment in part and dissenting in part, which was joined by Justices Byron White, Antonin Scalia, and Clarence Thomas, none of whom joined any part of the plurality. Justice Scalia also filed an opinion concurring in the judgment in part and dissenting in part, which was also joined by Rehnquist, White, and Thomas.

====Rehnquist and Scalia, joined by White and Thomas====
[[File:William Rehnquist.jpg|thumb|175px|Chief Justice [[William Rehnquist]] was the senior justice of the four that dissented against the upholding of ''Roe''.]]
Rehnquist and Scalia each joined the plurality in upholding the parental consent, informed consent, and waiting period laws. However, they dissented from the plurality's decision to uphold ''Roe v. Wade'' and strike down the spousal notification law, contending that ''Roe'' was incorrectly decided. In his opinion, Chief Justice Rehnquist questioned the fundamental right to an abortion, the "right to privacy", and the strict scrutiny application in ''Roe''.<ref>''Casey'', 505 U.S. at 950–54 (Rehnquist, C.J., concurring in part, dissenting in part).</ref> He also questioned the new "undue burden" analysis under the plurality opinion, instead deciding that the proper analysis for the regulation of abortions was rational-basis.<ref>''Casey'', 505 U.S. at 966 ("Accordingly, we think that the correct analysis is that set forth by the plurality opinion in ''Webster''. A woman's interest in having an abortion is a form of liberty protected by the Due Process Clause, but States may regulate abortion procedures in ways rationally related to a legitimate state interest.").</ref>

In his opinion, Justice Scalia also argued for a rational-basis approach, finding that the Pennsylvania statute in its entirety was constitutional.<ref>''Casey'', 505 U.S. at 981 (Scalia, J., concurring in part, dissenting in part).</ref> He argued that abortion was not a "protected" liberty, and as such, the abortion liberty could be intruded upon by the State.<ref>''See Casey'', 505 U.S. at 979–80 (finding that it is not unconstitutional to intrude upon the abortion liberty because the abortion liberty is not a protected liberty).</ref> To this end, Justice Scalia concluded this was so because an abortion right was not in the Constitution, and "longstanding traditions of American society" have allowed abortion to be legally proscribed.<ref>''Casey'', 505 U.S. at 980.</ref> Rehnquist and Scalia joined each other's concurrence/dissents. White and Thomas, who did not write their own opinions, joined in both.

====Stevens and Blackmun====
[[File:Justice Blackmun Official.jpg|thumb|175px|left| Justice [[Harry Blackmun]], the original author of ''Roe'', would have struck down all of the Pennsylvania abortion restrictions, continuing to apply [[strict scrutiny]].]]
Justices Blackmun and Stevens wrote opinions in which they approved of the plurality's preservation of ''Roe'' and rejection of the spousal notification law. They did not agree with the plurality's decision to uphold the other three laws at issue.

Justice Stevens concurred in part and dissented in part. Justice Stevens joined the plurality's preservation of ''Roe'' and rejection of the spousal notification law, but under his interpretation of the undue burden standard ("[a] burden may be 'undue' either because the burden is too severe or because it lacks a legitimate rational justification"), he would have found the information requirements in §§ 3205(a)(2)(i)–(iii) and § 3205(a)(1)(ii), and the 24-hour waiting period in §§ 3205(a)(1)–(2) unconstitutional.<ref>''Casey'', 505 U.S. at 912–914, 920–22 (Stevens, J., concurring in part, dissenting in part).</ref> Instead of applying an undue burden analysis, Justice Stevens would have preferred to apply the analyses in ''Akron'' and ''Thornburgh,'' two cases that had applied a strict scrutiny analysis, to reach the same conclusions.<ref>''Casey'', 505 U.S. at 917–18 ("In my opinion, the principles established in this long line of cases and the wisdom reflected in Justice Powell's opinion for the Court in ''Akron'' (and followed by the Court just six years ago in ''Thornburgh'') should govern our decision today.").</ref> Justice Stevens also placed great emphasis on the fact that women had a right to bodily integrity, and a constitutionally protected liberty interest to decide matters of the "highest privacy and the most personal nature."<ref>''Casey'', 505 U.S. at 915.</ref> As such, Justice Stevens felt that a State should not be permitted to attempt to "persuade the woman to choose childbirth over abortion"; he felt this was too coercive and violated the woman's decisional autonomy.<ref>''Casey'', 505 U.S. at 916.</ref>

Justice Blackmun concurred in part, concurred in the judgment in part, and dissented in part. He joined the plurality's preservation of ''Roe'' – of which he wrote the majority – and he, too, rejected the spousal notification law.<ref>''Casey'', 505 U.S. at 923–26 (Blackmun, J., concurring in part, dissenting in part).</ref> Justice Blackmun, however, argued for a woman's right to privacy and insisted, as he did in ''Roe'', that all non-''de-minimis'' abortion regulations were subject to strict scrutiny.<ref>''Casey'', 505 U.S. at 926–28.</ref> Using such an analysis, Justice Blackmun argued that the content-based counseling, the 24-hour waiting period, informed parental consent, and the reporting regulations were unconstitutional.<ref>''See Casey'', 505 U.S. at 926, 934.</ref> He also dissented from the plurality's undue burden test, and instead found his trimester framework "administrable" and "far less manipulable".<ref>''Casey'', 505 U.S. at 930.</ref> Blackmun even went further in his opinion than Stevens, sharply attacking and criticizing the anti-''Roe'' bloc of the Court.