Discussing the "undue burden" standard established by the U.S. Supreme Court in its 1992 Planned Parenthood v. Casey decision to determine if a particular state-imposed restriction on abortion is constitutional, Fox News senior judicial analyst Andrew Napolitano falsely claimed that five justices on the Supreme Court "have consistently found that whatever the states do to diminish abortions or protect children is an undue burden." Fox News host Bill O'Reilly went further, claiming that the court evidently believes there should be "no limits" on abortion. In fact, the Casey decision itself upheld several provisions in a Pennsylvania statute restricting abortion, with three justices ruling specifically that they did not impose an undue burden.
The plurality opinion in Casey signed by Justices Sandra Day O'Connor, David Souter, and Anthony Kennedy did provide that "The woman's right to terminate her pregnancy before viability is the most central principle of Roe v. Wade," the 1973 Supreme Court decision that overturned state laws restricting abortion, and is "a rule of law and a component of liberty we cannot renounce." But the three justices also held that restrictions are constitutionally permitted, so long as they do not impose an "undue burden." They ruled that "the undue burden standard is the appropriate means of reconciling the State's interest with the woman's constitutionally protected liberty." A majority including O'Connor, Souter and Kennedy then upheld several of Pennsylvania's abortion restrictions, including:
- A 24-hour waiting period. The opinion states: "The statute, as construed by the Court of Appeals, permits avoidance of the waiting period in the event of a medical emergency, and the record evidence shows that, in the vast majority of cases, a 24-hour delay does not create any appreciable health risk. In theory, at least, the waiting period is a reasonable measure to implement the State's interest in protecting the life of the unborn, a measure that does not amount to an undue burden."
- A one-parent consent requirement. The opinion states: "We next consider the parental consent provision. ... We have been over most of this ground before. Our cases establish, and we reaffirm today, that a State may require a minor seeking an abortion to obtain the consent of a parent or guardian, provided that there is an adequate judicial bypass procedure. ... Under these precedents, in our view, the one-parent consent requirement and judicial bypass procedure are constitutional."
From the March 29 edition of Fox News' The O'Reilly Factor:
O'REILLY: Maybe it was -- maybe it was 6-3 or 5-4. Who knows? Right now the United States, as the Supreme Court puts it, evolving -- evolving value system, it looks to me like there will be any kind of abortion up until two minutes before birth for anybody, for any reason. And any girl who gets pregnant, minor or otherwise, can get any kind of an abortion, so no restrictions on abortion at all.
NAPOLITANO: When the court wrote the Casey decision, Casey v. Planned Parenthood -- it's the last large seminal decision on abortion. Justice O'Connor came up with a nonsensical provision called undue burden. The states can't put an "undue burden" on abortion.
What's an "undue burden"? Whatever five of the justices want it to be at any given time.
O'REILLY: You got it.
NAPOLITANO: And those five have consistently found that whatever the states do to diminish abortions --
O'REILLY: No limits. Right. No limits.
NAPOLITANO: ... or protect children is an undue burden.
O'REILLY: All right. We see where it's evolving, Judge. Thanks very much.