Note: This is an educational course, not legal advice.
This topic is the legal history of two cases about abortion: what each held, which test it used and how the second changed the first. It follows the family and autonomy cases and the two methods for unenumerated rights. Americans hold deep and differing views on the question itself; this lesson describes the law and each opinion's reasoning without taking a side.
| Case | Holding and test | Vote and result |
|---|---|---|
| Roe v. Wade (1973) | The right of privacy in the Due Process Clause includes a right to choose abortion. Test: a trimester framework, with different state powers in each trimester of pregnancy. | 7 to 2; many state laws invalid |
| Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) | Kept Roe's "essential holding" and rejected the trimester framework. Test: undue burden: a law is invalid if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before viability. | 5 to 4 on keeping Roe's central holding (a joint opinion of three justices controlled much of the result); some state rules upheld, others struck down |
Why it works
Each opinion reasoned from the methods in this unit. Roe (Justice Blackmun) extended the privacy cases to this decision and balanced it against state interests that grew stronger as pregnancy went on. Justices White and Rehnquist dissented that the Constitution says nothing on the subject and that the question belonged to the states. Casey's joint opinion (Justices O'Connor, Kennedy and Souter) leaned heavily on stare decisis, respect for precedent, and on the reliance people had placed on Roe for two decades. It kept the line at viability but let states express an interest in potential life from the start of pregnancy, so long as their rules did not impose an undue burden. Four justices (Chief Justice Rehnquist and Justices White, Scalia and Thomas) would have overruled Roe; Justices Blackmun and Stevens would have kept more of it.
Key idea
Roe (1973): a due process right, with a trimester framework. Casey (1992): kept Roe's central holding and replaced trimesters with an undue burden test. The Court overruled Roe and Casey in 2022.
Worked example: Match the test
A law review article from 1995 analyzes whether a state rule places "a substantial obstacle" in a person's path. Which case's test is it applying?
- "Substantial obstacle" is the language of the undue burden test.
- That test comes from Planned Parenthood v. Casey (1992), which replaced Roe's trimesters.
Answer: Casey's undue burden test.
Worked example: What Casey kept and what it changed
A student says, "Casey simply reaffirmed Roe." Correct this.
- Casey kept what it called Roe's "essential holding": a right to choose before viability.
- It rejected the trimester framework and let states regulate from the start of pregnancy if they imposed no undue burden.
- It upheld several Pennsylvania rules, such as a 24-hour waiting period, and struck down a spousal notice rule.
Answer: Casey kept Roe's central holding but replaced its framework with the undue burden test.
Common mistake
Mixing up the cases and their tests. Roe: trimesters. Casey: undue burden. Another slip: describing either test as current law. The Court overruled both cases in 2022.