[Cite as Planned Parenthood v. Casey, 505 U.S. 833, 848-849 (1992). Note: This decision regards a Pennsylvania law restricting abortion. The Court's opinion quotes Justice Harlan's dissenting opinion in Poe v. Ullman, 367 U.S. at 542-543 (1961) enumerating the right to bear arms among other rights in the first eight amendments--that the fourteenth amendment covered, but was not exclusively limited to, "the precise terms of the specific guarantees elsewhere provided in the Constitution," such as "the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures.". (Pp. 848-849) This dissenting opinion gained ascendency in Griswold v. Connecticut, 381 U.S. 479, 488 (1965) where a concurring opinion made repeated reference to the first eight amendments in terms of "fundamental rights" (Griswold at 488, 490, 491, 492 (citing Poe)). As David Kopel notes, "It is impossible to read Justice Harlan's words as anything other than a recognition that the Second Amendment protects the right of individual Americans to possess firearms. Obviously, the Due Process Clause of the Fourteenth Amendment protects a right of individuals against government; it does not protect government, nor is it some kind of collective right. It is notable that Justice Harlan felt no need to defend or elaborate his position that the Second Amendment guaranteed an individual right." (Communitarians, Neorepublicans, and Guns: Assessing the Case for Firearms Prohibition, 56 Maryland L. Rev. 438, 540 (1997)) See also Dred Scott v. Sandford, 60 U.S. 393, 417, 450-451 (1857); Robertson v. Baldwin, 165 U.S. 275, 281-282 (1897), and United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990). Another interesting quote is Justice Scalia's parody of the phrase "power corrupts, and absolute power corrupts absolutely" when he chided the majority opinion by noting: "no government official is 'tempted' to place restraints upon his own freedom of action, which is why Lord Acton did not say 'Power tends to purify.'" (P. 981]
[Planned Parenthood v. Casey continued
Return to pages 833-847 (Syllabus and opinion of the Court).
Return to pages 848-849 (opinion of the Court).
Return to pages 850-901 (opinion of the Court).
Currently at pages 902-910 (Appendix to opinion of the Court).
Proceed to pages 911-921 (Stevens dissenting and concurring).
Proceed to pages 922-943 (Blackmun dissenting and concurring).
Proceed to pages 944-978 (Rehnquist dissenting and concurring).
Proceed to pages 979-1002 (Scalia dissenting and concurring).]
Selected Provisions of the 1988 and 1989 Amendments to the Pennsylvania Abortion Control Act of 1982
18 PA.CONS.STAT. (1990)
"§ 3203. Definitions.
. . . . .
"'Medical emergency.' That condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of major bodily function."
"§ 3205. Informed consent.
(a) General rule.--No abortion shall be performed or induced except with the voluntary and informed consent of the woman upon whom the abortion is to be performed or induced. Except in the case of a medical emergency, consent to an abortion is voluntary and informed if and only if:
"(1) At least 24 hours prior to the abortion, the physician who is to perform the abortion or the referring physician has orally informed the woman of:
"(i) The nature of the proposed procedure or treatment and of those risks and alternatives to the procedure or treatment that a reasonable patient would consider material to the decision of whether or not to undergo the abortion.
"(ii) The probable gestational age of the unborn child at the time the abortion is to be performed.
"(iii) The medical risks associated with carrying her child to term.
"(2) At least 24 hours prior to the abortion, the physician who is to perform the abortion or the referring physician, or a qualified physician assistant, health care practitioner, technician or social worker to whom the responsibility (p.903)has been delegated by either physician, has informed the pregnant woman that:
"(i) The department publishes printed materials which describe the unborn child and list agencies which offer alternatives to abortion and that she has a right to review the printed materials and that a copy will be provided to her free of charge if she chooses to review it.
"(ii) Medical assistance benefits may be available for prenatal care, childbirth and neonatal care, and that more detailed information on the availability of such assistance is contained in the printed materials published by the department.
"(iii) The father of the unborn child is liable to assist in the support of her child, even in instances where he has offered to pay for the abortion. In the case of rape, this information may be omitted.
"(3) A copy of the printed materials has been provided to the woman if she chooses to view these materials.
"(4) The pregnant woman certifies in writing, prior to the abortion, that the information required to be provided under paragraphs (1), (2) and (3) has been provided.
"(b) Emergency.--Where a medical emergency compels the performance of an abortion, the physician shall inform the woman, prior to the abortion if possible, of the medical indications supporting his judgment that an abortion is necessary to avert her death or to avert substantial and irreversible impairment of major bodily function.
"(c) Penalty.--Any physician who violates the provisions of this section is guilty of 'unprofessional conduct' and his license for the practice of medicine and surgery shall be subject to suspension or revocation in accordance with procedures provided under the act of October 5, 1978 (P.L. 1109, No. 261), known as the Osteopathic Medical Practice Act, the (p.904)act of December 20, 1985 (P.L. 457, No. 112), known as the Medical Practice Act of 1985, or their successor acts. Any physician who performs or induces an abortion without first obtaining the certification required by subsection (a)(4) or with knowledge or reason to know that the informed consent of the woman has not been obtained shall for the first offense be guilty of a summary offense and for each subsequent offense be guilty of a misdemeanor of the third degree. No physician shall be guilty of violating this section for failure to furnish the information required by subsection (a) if he or she can demonstrate, by a preponderance of the evidence, that he or she reasonably believed that furnishing the information would have resulted in a severely adverse effect on the physical or mental health of the patient.
"(d) Limitation on civil liability.--Any physician who complies with the provisions of this section may not be held civilly liable to his patient for failure to obtain informed consent to the abortion within the meaning of that term as defined by the act of October 15, 1975 (P.L. 390, No. 111), known as the Health Care Services Malpractice Act."
"§ 3206. Parental consent.
"(a) General rule.--Except in the case of a medical emergency or except as provided in this section, if a pregnant woman is less than 18 years of age and not emancipated, or if she has been adjudged an incompetent under 20 Pa.C.S. § 5511 (relating to petition and hearing; examination by court-appointed physician), a physician shall not perform an abortion upon her unless, in the case of a woman who is less than 18 years of age, he first obtains the informed consent both of the pregnant woman and of one of her parents; or, in the case of a woman who is incompetent, he first obtains the informed consent of her guardian. In deciding whether to grant such consent, a pregnant woman's parent or guardian shall consider only their child's or ward's best interests. In the case of a pregnancy that is the result of incest, where (p.905)the father is a party to the incestuous act, the pregnant woman need only obtain the consent of her mother.
"(b) Unavailability of parent or guardian.--If both parents have died or are otherwise unavailable to the physician within a reasonable time and in a reasonable manner, consent of the pregnant woman's guardian or guardians shall be sufficient. If the pregnant woman's parents are divorced, consent of the parent having custody shall be sufficient. If neither any parent nor a legal guardian is available to the physician within a reasonable time and in a reasonable manner, consent of any adult person standing in loco parentis shall be sufficient.
"(c) Petition to the court for consent.--If both of the parents or guardians of the pregnant woman refuse to consent to the performance of an abortion or if she elects not to seek the consent of either of her parents or of her guardian, the court of common pleas of the judicial district in which the applicant resides or in which the abortion is sought shall, upon petition or motion, after an appropriate hearing, authorize a physician to perform the abortion if the court determines that the pregnant woman is mature and capable of giving informed consent to the proposed abortion, and has, in fact, given such consent.
"(d) Court order.--If the court determines that the pregnant woman is not mature and capable of giving informed consent or if the pregnant woman does not claim to be mature and capable of giving informed consent, the court shall determine whether the performance of an abortion upon her would be in her best interests. If the court determines that the performance of an abortion would be in the best interests of the woman, it shall authorize a physician to perform the abortion.
"(e) Representation in proceedings.--The pregnant woman may participate in proceedings in the court on her own behalf and the court may appoint a guardian ad litem to assist her. The court shall, however, advise her that she has (p.906)a right to court appointed counsel, and shall provide her with such counsel unless she wishes to appear with private counsel or has knowingly and intelligently waived representation by counsel."
"§ 3207. Abortion facilities.
. . . . .
"(b) Reports.--Within 30 days after the effective date of this chapter, every facility at which abortions are performed shall file, and update immediately upon any change, a report with the department, containing the following information:
"(1) Name and address of the facility.
"(2) Name and address of any parent, subsidiary or affiliated organizations, corporations or associations.
"(3) Name and address of any parent, subsidiary or affiliated organizations, corporations or associations having contemporaneous commonality of ownership, beneficial interest, directorship or officership with any other facility.
The information contained in those reports which are filed pursuant to this subsection by facilities which receive State-appropriated funds during the 12-calendar-month period immediately preceding a request to inspect or copy such reports shall be deemed public information. Reports filed by facilities which do not receive State-appropriated funds shall only be available to law enforcement officials, the State Board of Medicine and the State Board of Osteopathic Medicine for use in the performance of their official duties. Any facility failing to comply with the provisions of this subsection shall be assessed by the department a fine of $500 for each day it is in violation hereof."
"§ 3208. Printed information.
"(a) General rule.--The department shall cause to be published in English, Spanish and Vietnamese, within 60 days after this chapter becomes law, and shall update on an annual basis, the following easily comprehensible printed materials:(p.907)
"(1) Geographically indexed materials designed to inform the woman of public and private agencies and services available to assist a woman through pregnancy, upon childbirth and while the child is dependent, including adoption agencies, which shall include a comprehensive list of the agencies available, a description of the services they offer and a description of the manner, including telephone numbers, in which they might be contacted, or, at the option of the department, printed materials including a toll-free 24-hour a day telephone number which may be called to obtain, orally, such a list and description of agencies in the locality of the caller and of the services they offer. The materials shall provide information on the availability of medical assistance benefits for prenatal care, childbirth and neonatal care, and state that it is unlawful for any individual to coerce a woman to undergo abortion, that any physician who performs an abortion upon a woman without obtaining her informed consent or without according her a private medical consultation may be liable to her for damages in a civil action at law, that the father of a child is liable to assist in the support of that child, even in instances where the father has offered to pay for an abortion and that the law permits adoptive parents to pay costs of prenatal care, childbirth and neonatal care.
"(2) Materials designed to inform the woman of the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from fertilization to full term, including pictures representing the development of unborn children at two-week gestational increments, and any relevant information on the possibility of the unborn child's survival; provided that any such pictures or drawings must contain the dimensions of the fetus and must be realistic and appropriate for the woman's stage of pregnancy. The materials shall be objective, non-judgmental and designed (p.908)to convey only accurate scientific information about the unborn child at the various gestational ages. The material shall also contain objective information describing the methods of abortion procedures commonly employed, the medical risks commonly associated with each such procedure, the possible detrimental psychological effects of abortion and the medical risks commonly associated with each such procedure and the medical risks commonly associated with carrying a child to term.
"(b) Format.--The materials shall be printed in a typeface large enough to be clearly legible.
"(c) Free distribution.--The materials required under this section shall be available at no cost from the department upon request and in appropriate number to any person, facility or hospital."
"§ 3209. Spousal notice.
"(a) Spousal notice required.--In order to further the Commonwealth's interest in promoting the integrity of the marital relationship and to protect a spouse's interests in having children within marriage and in protecting the prenatal life of that spouse's child, no physician shall perform an abortion on a married woman, except as provided in subsections (b) and (c), unless he or she has received a signed statement, which need not be notarized, from the woman upon whom the abortion is to be performed, that she has notified her spouse that she is about to undergo an abortion. The statement shall bear a notice that any false statement made therein is punishable by law.
"(b) Exceptions.--The statement certifying that the notice required by subsection (a) has been given need not be furnished where the woman provides the physician a signed statement certifying at least one of the following:
"(1) Her spouse is not the father of the child.
"(2) Her spouse, after diligent effort, could not be located.(p.909)
"(3) The pregnancy is a result of spousal sexual assault as described in section 3128 (relating to spousal sexual assault), which has been reported to a law enforcement agency having the requisite jurisdiction.
"(4) The woman has reason to believe that the furnishing of notice to her spouse is likely to result in the infliction of bodily injury upon her by her spouse or by another individual.
Such statement need not be notarized, but shall bear a notice that any false statements made therein are punishable by law.
"(c) Medical emergency.--The requirements of subsection (a) shall not apply in case of a medical emergency.
"(d) Forms.--The department shall cause to be published, forms which may be utilized for purposes of providing the signed statements required by subsections (a) and (b). The department shall distribute an adequate supply of such forms to all abortion facilities in this Commonwealth.
"(e) Penalty; civil action.--Any physician who violates the provisions of this section is guilty of 'unprofessional conduct,' and his or her license for the practice of medicine and surgery shall be subject to suspension or revocation in accordance with procedures provided under the act of October 5, 1978 (P.L. 1109, No. 261), known as the Osteopathic Medical Practice Act, the act of December 20, 1985 (P. L. 457, No. 112), known as the Medical Practice Act of 1985, or their successor acts. In addition, any physician who knowingly violates the provisions of this section shall be civilly liable to the spouse who is the father of the aborted child for any damages caused thereby and for punitive damages in the amount of $5,000, and the court shall award a prevailing plaintiff a reasonable attorney fee as part of costs."
"§ 3214. Reporting.
"(a) General rule.--For the purpose of promotion of maternal health and life by adding to the sum of medical and (p.910)public health knowledge through the compilation of relevant data, and to promote the Commonwealth's interest in protection of the unborn child, a report of each abortion performed shall be made to the department on forms prescribed by it. The report forms shall not identify the individual patient by name and shall include the following information:
"(1) Identification of the physician who performed the abortion, the concurring physician as required by section 3211(c)(2) (relating to abortion on unborn child of 24 or more weeks gestational age), the second physician as required by section 3211(c)(5) and the facility where the abortion was performed and of the referring physician, agency or service, if any.
"(2) The county and state in which the woman resides.
"(3) The woman's age.
"(4) The number of prior pregnancies and prior abortions of the woman.
"(5) The gestational age of the unborn child at the time of the abortion.
"(6) The type of procedure performed or prescribed and the date of the abortion.
"(7) Preexisting medical conditions of the woman which would complicate pregnancy, if any, and if known, any medical complication which resulted from the abortion itself.
"(8) The basis for the medical judgment of the physician who performed the abortion that the abortion was necessary to prevent either the death of the pregnant woman or he substantial and irreversible impairment of a major bodily function of the woman, where an abortion has been performed pursuant to section 3211(b)(1).
"(9) The weight of the aborted child for any abortion performed pursuant to section 3211(b)(1).
"(10) Basis for any medical judgment that a medical emergency existed which excused the physician from compliance with any provision of this chapter.
[Return to pages 833-847 (Syllabus and opinion of the Court).
Return to pages 848-849 (opinion of the Court).
Return to pages 850-901 (opinion of the Court).
Currently at pages 902-910 (Appendix to opinion of the Court).
Proceed to pages 911-921 (Stevens dissenting and concurring).
Proceed to pages 922-943 (Blackmun dissenting and concurring).
Proceed to pages 944-978 (Rehnquist dissenting and concurring).
Proceed to pages 979-1002 (Scalia dissenting and concurring).]