Legitimacy and the Empowerment of Discretionary Legal Authority: The United States Supreme Court and Abortion Rights

Abstract

In Planned Parenthood of Southern Pennsylvania v. Casey, the U.S. Supreme Court directly confronted the question of Roe v. Wade's continuing viability. Many commentators speculated that Roe would be overruled, tossing the abortion issue to Congress and state legislatures. Yet a majority of the Justices refused to overrule the central holding of Roe, which provides constitutional protection for limited abortion rights. Justices O'Connor, Kennedy, and Souter, in an opinion joined in relevant part by Justices Stevens and Blackmun, relied on the concepts of substantive due process, "principles of institutional integrity," and "the rule of stare decisis" to preserve the constitutional status of a woman's right to an abortion. A different collection of Justices upheld states' rights to erect various barriers to the abortion right as long as they do not pose "substantial obstacle[s]."