1992: The Supreme Court ruling on abortion

One of the long-time commentators for Minnesota Women’s Press in its earlier years was Judy Corrao (who died in September 2020 at age 78). This is part of a commentary she published in our pages (when it was a biweekly newspaper), after the Supreme Court made an important decision regarding abortion rights in 1992.

“An entire generation has come of age free to assume Roe’s concept of liberty in defining the capacity of women to act in a society and to make reproductive decisions.” — Associate Justices Sandra Day O’Connor, Anthony Kennedy, David Souter, in the Planned Parenthood v Casey ruling, which upheld most of Pennsylvania’s Abortion Control Act

On June 29 [1992], by a 5-4 ruling, the narrowest of margins, the U.S. Supreme Court redefined and limited Roe v Wade, while it reaffirmed what it called the “essence” of a woman’s right to an abortion.’ Justice Harry Blackmun warned that Roe v Wade was only one vote away from being completely overruled. “I am 83 years old, and I cannot remain on this court forever.” He warned that when he leaves, a fierce battle will occur over the nomination of his successor.

In the Pennsylvania ruling, Chief Justice William Rehnquist and Justices Antonin Scalia, Byron White, and Clarence Thomas said that the court should have overturned Roe v Wade.

Justices O’Connor, Kennedy, and Souter joined Justice Blackmun, Roe’s author, and Justice John Paul Stevens in rejecting the harsh demands of the four justices who wanted to overturn Roe. Amazingly, these three moderate justices who do not support Roe said they believe that overturning Roe for no greater reasons than a change in the court membership and political games would damage the Supreme Court’s reputation.

In the Planned Parethood v Casey decision, a new standard questions whether a state’s abortion regulation has the purpose or effect of imposing an “undue burden.” The court defined an “undue burden” as a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.

The court let stand four of [five of] the Pennsylvania law’s sections, which they said did not impose an undue burden:

  • Informed consent: The Philadelphia law requires that doctors discuss abortion alternatives with patients and show them pictures of fetal development. This is nothing more than a state-sponsored lecture.
  • Reporting: Doctors must report names of those they have counseled about abortion to the state department of health.
  • Parental consent: In Pennsylvania, girls under age 18 must get a parent’s consent, or approval from a judge, before getting an abortion.
  • Waiting period: Pennsylvania mandated a 24-hour wait before a woman can get an abortion. This will penalize women in rural states and counties. In Minnesota, only Hennepin, Ramsey, and St. Louis (Duluth) counties have clinics that perform abortions. This accounts for only 2.5 percent of all counties. The 24-hour wait period may be a dead-end for poor women who cannot afford to take time off from their jobs get food and lodging.
  • Spousal notification: The Supreme Court struck down the part of the Pennsylvania law that required married women to notify their husbands of their intent to get an abortion. The court recognized that adult women cannot be treated like unwed teenagers.

In Minnesota:

  • Doctors and clinics use informed consent for abortion — two sessions of counseling and a signature.
  • Minnesota requires notification (not consent) of two parents, compared to the Pennsylvania law, which requires consent by one parent.
  • Minnesota doctors must report abortion recipients’ names to the department of health.

The political impact of this abortion decision is serious, and there will be long battles over abortion. The Supreme Court’s new “undue burden” standard will send anti-abortion legislators scrambling to develop creative new restrictions. There will be an incredible move by states to regulate abortion. Courts will be clogged with litigation over state legislatures’ blocks to abortion.

The Right to Life organizations will work in each state to further restrict abortions and with the presidential candidates to get them to agree to appoint anti-choice federal judges and Supreme Court justices.

Legislative races this year in Minnesota and the nation may be the most important in decades for the choice issue.

three moderate justices who do not support Roe said they believe that overturning Roe for no greater reasons than a change in the court membership and political games would damage the Supreme Court’s reputation.

“Until the day that women control without any doubt their own reproductive destinies, they are only part of the continuing plantation system and mentality,” said Jeri Rasmussen, executive director of Midwest Health Center for Women. “Regardless of any decision the court will ever make, women will continue to make their own decisions. The only decision the court or legislatures make is where and under what conditions an abortion takes place. We are at the crossroads where the Supreme Court has placed in motion the concept of a fundamental right determined by geography — in other words, free states and slave states. Our weapons will be our moral rightness and the ballot.”

This is excerpted in our 150-page book “35 Years of Minnesota Women.” Order the book here.