Abortion: Justice O'Connor's Opinions
CRS Report for Congress
Abortion: Justice O’Connor’s Opinions
Jon O. Shimabukuro
Legislative Attorney
American Law Division
Summary
In 1992, the U.S. Supreme Court, led by Justices O’Connor, Kennedy, and Souter,
adopted a new standard for reviewing the constitutionality of restrictions on abortion.
Under the new standard, a reviewing court would consider whether an abortion
restriction has the effect of imposing an “undue burden” on a woman’s right to obtain
an abortion. This report will examine Justice O’Connor’s notable opinions on abortion,
and explore her role in the development of the undue burden standard.
In 1992, the U.S. Supreme Court, led by Justices O’Connor, Kennedy, and Souter,
adopted a new standard for reviewing the constitutionality of restrictions on abortion.
Under the new standard, a reviewing court would consider whether an abortion restriction
has the effect of imposing an “undue burden” on a woman’s right to obtain an abortion.
Although the new standard was not formally adopted by the Court until 1992 in Planned
Parenthood of Southeastern Pennsylvania v. Casey, Justice O’Connor’s opinions on
abortion prior to Casey had already expressed dissatisfaction with the trimester
framework established in Roe v. Wade, and an interest in considering abortion restrictions
based on whether they imposed an undue burden on the right to obtain an abortion. This
report will examine Justice O’Connor’s notable opinions on abortion, and explore her role
in the development of the undue burden standard.
Justice O’Connor first addressed the legitimacy of abortion restrictions in City of
Akron v. Akron Center for Reproductive Health, a case involving five provisions of an
Akron, Ohio ordinance that regulated the performance of abortions.1 The five provisions
imposed various restrictions on abortion, including a parental consent requirement for
unemancipated minors, and a requirement that all abortions performed after the first
trimester be performed in a hospital. The Court determined by a 6-3 vote that the five
provisions of the ordinance were unconstitutional. After reaffirming its decision in Roe,
the Court indicated that the five provisions did not comply with that decision and the
trimester framework articulated in that case.2
1 462 U.S. 416 (1983).
2 For a discussion of Roe v. Wade and the trimester framework, see CRS Issue Brief IB95095,
(continued...)
Congressional Research Service ˜ The Library of Congress
Justice O’Connor wrote the dissenting opinion in City of Akron. In her dissent,
Justice O’Connor maintained that the trimester framework established in Roe was
unworkable. She explained that technological advances not only made abortions more
safe, but also blurred the line between permissible and impermissible regulations of
abortion:
Just as improvements in medical technology inevitably will move forward the point
at which the State may regulate for reasons of maternal health, different technological
improvements will move backward the point of viability at which the State may
proscribe abortions except when necessary to preserve the life and health of the3
mother.
Justice O’Connor maintained that the trimester framework, which used the end of the first
trimester and viability as reference points for regulation, was inappropriate because of
decreased medical risks and earlier fetal viability. As medical risks associated with
various abortion procedures decreased, it would seem that restrictions on abortion to
preserve maternal health would probably not be imposed at the end of the first trimester,
but rather, at a later time in a woman’s pregnancy, closer to childbirth. In addition, under
the trimester framework, earlier fetal viability would mean that restrictions on abortion
to protect potential life could be imposed early in a woman’s pregnancy. Justice
O’Connor concluded that “[t]he Roe framework, then, is clearly on a collision course with
itsel f.”4
Justice O’Connor also noted that adherence to Roe’s trimester framework was
inconsistent with the Court’s more recent abortion decisions. In Maher v. Roe and Harris
v. McRae, the Court appeared to recognize that an undue burden standard should be used
to review restrictions on abortion.5 For example, in McRae, the Court stated: “The
doctrine of Roe v. Wade . . . ‘protects the woman from unduly burdensome interference
with her freedom to decide whether to terminate her pregnancy.’”6 Justice O’Connor
maintained that “this ‘unduly burdensome’ standard should be applied to the challenged
regulations throughout the entire pregnancy without reference to the particular ‘stage’ of
pregnancy involved.”7
Justice O’Connor reiterated her support for the undue burden standard in her
concurring opinion in Webster v. Reproductive Health Services.8 Webster involved four
sections of a Missouri statute that imposed various restrictions on the performance of
abortions, including a prohibition on the use of public facilities or employees to perform
2 (...continued)
Abortion: Legislative Response, by Karen J. Lewis and Jon O. Shimabukuro.
3 City of Akron, 462 U.S. at 456-57.
4 City of Akron, 462 U.S. at 458.
5 Maher v. Roe, 432 U.S. 464 (1977); Harris v. McRae, 448 U.S. 297 (1980).
6 McRae, 448 U.S. at 314 (quoting Maher, 432 U.S. at 473-74).
7 City of Akron, 462 U.S. at 453.
8 492 U.S. 490 (1989).
abortions, and a prohibition on public funding for abortion counseling. Justice O’Connor
joined four other justices to uphold the four sections of the Missouri statute.
The five justices in the majority wrote three separate opinions that concurred in the
judgment, but expressed differing views on Roe and the trimester framework. While
Justice O’Connor discussed eliminating the trimester framework and applying the undue
burden standard, Chief Justice Rehnquist and Justices White and Kennedy discussed
another standard for reviewing restrictions on abortion.9 They maintained that restrictions
should be evaluated on the basis of whether they “permissibly further” the State’s interest
in protecting potential human life.10 The fifth member of the majority, Justice Scalia,
contemplated the overruling of Roe in its entirety.11
Despite the justices’ three opinions, it was clear that the idea of using a different
standard to evaluate restrictions on abortion was not held by Justice O’Connor alone. In
fact, just three years after Webster, the Court adopted the undue burden standard in
Casey.12 Casey was decided by a vote of 5-4. In a joint opinion, Justices O’Connor,
Kennedy, and Souter expressed a refusal to overrule Roe, and discussed why it was
important to follow precedent: “The Constitution serves human values, and while the
effect of reliance on Roe cannot be exactly measured, neither can the certain cost of
overruling Roe for people who have ordered their thinking and living around that case be
dismissed.”13
The Court stated clearly that it was reaffirming Roe’s essential holding, and
identified the holding’s three parts.14 First, a woman has a right to choose to have an
abortion prior to viability without undue interference from the State. Second, the State
has a right to restrict abortions after viability so long as the regulation provides an
exception for pregnancies which endanger a woman’s life or health. Third, the State has
legitimate interests from the outset of the pregnancy in protecting the health of the woman
and the life of the fetus.
In affirming only the essential holding of Roe, the Court rejected the trimester
framework articulated in that case. In its place, the Court adopted the undue burden
standard for reviewing restrictions on abortion. The Court explained that “[a]n 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.”15
9 Webster, 492 U.S. at 499.
10 Webster, 492 U.S. at 519-20.
11 Webster, 492 U.S. at 532.
12 505 U.S. 833 (1992).
13 Id. at 856. Justices O’Connor, Kennedy, and Souter were joined, in part, by Justices Stevens
and Blackmun.
14 Casey, 505 U.S. at 846.
15 Casey, 505 U.S. at 878.
Applying the new standard to the Pennsylvania abortion restrictions at issue in the
case, the Court determined that the provisions of the Pennsylvania Abortion Control Act
imposing a mandatory waiting period, and requiring the patient’s informed consent, the
consent of one parent if the patient is a minor, and certain recordkeeping and reporting by
facilities that provide abortion services did not impose an undue burden. However, a fifth
provision requiring spousal notification did not survive the undue burden test. The Court
reasoned that such a requirement placed a substantial obstacle in the path of a woman
seeking an abortion because fear of spousal abuse could inhibit the abortion decision
altogether.
In 2000, the undue burden standard was applied in Stenberg v. Carhart, a case
involving the constitutionality of Nebraska’s “partial-birth” abortion ban statute.16
Stenberg was the Court’s first substantive abortion case following Casey. In Stenberg,
the Court determined by a 5-4 vote that the Nebraska statute was unconstitutional because
it failed to include an exception to protect the health of the mother, and because the
language defining the prohibited abortion procedure was too vague.17 Although Roe
indicated that an abortion regulation must include an exception where it is “necessary, in
appropriate medical judgment, for the preservation of the life or health of the mother,” the
Nebraska statute did not include such a health exception.18 Nebraska claimed that a health
exception was unnecessary because safe alternatives to the partial-birth abortion
procedure remained available to women. While the Court conceded that the actual need
for the partial-birth abortion procedure was uncertain, it recognized that the procedure
could be safer in certain circumstances, and maintained that a ban on the procedure
without a health exception created a significant health risk.19
In addition, the Court maintained that the language of the Nebraska statute could be
interpreted to prohibit not just the dilation and extraction (D&X) abortion procedure, the
procedure commonly associated with partial-birth abortion, but the dilation and
evacuation (D&E) procedure that is the most common abortion procedure during the
second trimester of pregnancy.20 The Court believed that the statute was likely to prompt
those who perform the D&E procedure to stop because of fear of prosecution and
conviction. The result would be the imposition of an undue burden on a woman’s ability
to have an abortion.
Justice O’Connor wrote a concurring opinion in Stenberg. In her concurrence, she
maintained that the Nebraska statute should be invalidated because of its failure to include
a health exception, and because of the undue burden that would be imposed as a result of
the statute’s broad definition for the banned procedure. However, Justice O’Connor
suggested that other state statutes that prohibited partial-birth abortions could possibly
16 530 U.S. 914 (2000).
17 For additional discussion of Stenberg v. Carhart and “partial-birth” abortion, see CRS Report
RL30415, Partial-Birth Abortion: Recent Developments in the Law, by Jon O. Shimabukuro.
18 Stenberg, 530 U.S. at 930.
19 Stenberg, 530 U.S. at 932.
20 See Shimabukuro, supra note 17, for additional discussion of the dilation and extraction (D &
X) and dilation and evacuation (D & E) procedures.
withstand a constitutional challenge.21 Citing the partial-birth abortion statutes of Kansas,
Utah, and Montana, Justice O’Connor contended that a statute that was narrowly tailored
to prohibit only the D & X procedure could be upheld.22 Justice O’Connor observed: “If
Nebraska’s statute limited its application to the D & X procedure and included an
exception for the life and health of the mother, the question presented would be quite
different from the one we faced today.”23
Questions about the future of the undue burden standard seem likely following the
announcement of Justice O’Connor’s retirement. Chief Justice Rehnquist’s dissent in
Casey, joined by Justices Scalia and Thomas, criticized the undue burden standard and
declared that it was “not built to last.”24 Chief Justice Rehnquist maintained that the
standard was based on a judge’s subjective determinations to a greater degree than the
trimester framework.25 In his dissent in Stenberg, Justice Scalia affirmed his belief that
the standard was “‘hopelessly unworkable in practice.’”26 While it appears unlikely that
the Court would return to a standard like the trimester framework, it is not entirely certain
what a new standard would consider to determine whether a restriction on abortion is
permissible.
21 Stenberg, 530 U.S. at 950.
22 Id.
23 Id. Supreme Court consideration of another case involving partial-birth abortion is expected.
The federal Partial-Birth Abortion Ban Act has been challenged on grounds similar to those
argued in Stenberg. For additional information about the cases challenging the Partial-Birth
Abortion Ban Act, see Shimabukuro, supra note 17.
24 Casey, 505 U.S. at 965.
25 Id.
26 Stenberg, 530 U.S. at 955 (quoting Casey, 505 U.S. at 986).