505 U.S. 833
PLANNED PARENTHOOD OF SOUTHEASTERN
PENNSYLVANIA, ET AL. v.
CASEY, GOVERNOR OF PENNSYLVANIA, ET AL., CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE THIRD CIRCUIT Nos. 91-744
Argued April 22, 1992
Decided June 29, 1992 *
[ Footnote * ]
Together with No. 91-902, Casey, Governor of Pennsylvania, et al, v. Planned
Parenthood of Southeastern Pennsylvania et al., also on certiorari to the same
court.
At issue are five provisions of the Pennsylvania Abortion Control Act of
1982: 3205, which requires that a woman seeking an abortion give her informed
consent prior to the procedure, and specifies that she be provided with certain
information at least 24 hours before the abortion is performed; 3206, which
mandates the informed consent of one parent for a minor to obtain an abortion,
but provides a judicial bypass procedure; 3209, which commands that, unless
certain exceptions apply, a married woman seeking an abortion must sign a
statement indicating that she has notified her husband; 3203, which defines a
"medical emergency" that will excuse compliance with the foregoing
requirements; and 3207(b), 3214(a), and 3214(f), which impose certain reporting
requirements on facilities providing abortion services. Before any of the
provisions took effect, the petitioners, five abortion clinics and a physician
representing himself and a class of doctors who provide abortion services,
brought this suit seeking a declaratory judgment that each of the provisions
was unconstitutional on its face, as well as injunctive relief. The District
Court held all the provisions unconstitutional, and permanently enjoined their
enforcement. The Court of Appeals affirmed in part and reversed in part,
striking down the husband notification provision but upholding the others.
Held:
The judgment in No. 91-902 is affirmed; the judgment in No. 91-744 is
affirmed in part and reversed in part, and the case is remanded.
947 F.2d 682: No. 91-902, affirmed; No. 91-744, affirmed in part, reversed
in part, and remanded.
JUSTICE O'CONNOR, JUSTICE KENNEDY,
and JUSTICE SOUTER delivered the opinion of the Court with respect to Parts I,
II, and III, concluding that consideration of the fundamental constitutional
question resolved by Roe v. Wade, 410
U.S. 113 , principles of institutional integrity, and the rule of stare
decisis require that Roe's essential holding be retained [505 U.S. 833, 834] and
reaffirmed as to each of its three parts: (1) a recognition of a woman's right
to choose to have an abortion before fetal viability and to obtain it without
undue interference from the State, whose pre-viability interests are not strong
enough to support an abortion prohibition or the imposition of substantial
obstacles to the woman's effective right to elect the procedure; (2) a
confirmation of the State's power to restrict abortions after viability, if the
law contains exceptions for pregnancies endangering a woman's life or health;
and (3) the principle that the State has legitimate interests from the outset
of the pregnancy in protecting the health of the woman and the life of the
fetus that may become a child. Pp. 844-869.
(a) A reexamination of the
principles that define the woman's rights and the State's authority regarding
abortions is required by the doubt this Court's subsequent decisions have cast
upon the meaning and reach of Roe's central holding, by the fact that THE CHIEF
JUSTICE would overrule Roe, and by the necessity that state and federal courts
and legislatures have adequate guidance on the subject. Pp. 844-845.
(b) Roe determined that a woman's
decision to terminate her pregnancy is a "liberty" protected against
state interference by the substantive component of the Due Process Clause of
the Fourteenth Amendment. Neither the Bill of Rights nor the specific practices
of States at the time of the Fourteenth Amendment's adoption marks the outer
limits of the substantive sphere of such "liberty." Rather, the
adjudication of substantive due process claims may require this Court to exercise
its reasoned judgment in determining the boundaries between the individual's
liberty and the demands of organized society. The Court's decisions have
afforded constitutional protection to personal decisions relating to marriage,
see, e.g., Loving v. Virginia, 388
U.S. 1 , procreation, Skinner v. Oklahoma ex rel Williamson, 316
U.S. 535 , family relationships, Prince v. Massachusetts, 321
U.S. 158 , child rearing and education, Pierce v. Society of Sisters, 268
U.S. 510 , and contraception, Griswold v. Connecticut, 381
U.S. 479 , and have recognized the right of the individual to be free from
unwarranted governmental intrusion into matters so fundamentally affecting a
person as the decision whether to bear or beget a child, Eisenstadt v. Baird, 405
U.S. 438, 453 . Roe's central holding properly invoked the reasoning and
tradition of these precedents. Pp. 846-853.
(c) Application of the doctrine of
stare decisis confirms that Roe's essential holding should be reaffirmed. In
reexamining that holding, the Court's judgment is informed by a series of
prudential and pragmatic considerations designed to test the consistency of
overruling the holding with the ideal of the rule of law, and to gauge the
respective costs of reaffirming and overruling. Pp. 854-855. [505 U.S. 833, 835]
(d) Although Roe has engendered
opposition, it has in no sense proven unworkable, representing as it does a
simple limitation beyond which a state law is unenforceable. P. 835.
(e) The Roe rule's limitation on
state power could not be repudiated without serious inequity to people who, for
two decades of economic and social developments, have organized intimate
relationships and made choices that define their views of themselves and their
places in society, in reliance on the availability of abortion in the event
that contraception should fail. The ability of women to participate equally in
the economic and social life of the Nation has been facilitated by their
ability to control their reproductive lives. The Constitution serves human
values, and while the effect of reliance on Roe cannot be exactly measured,
neither can the certain costs of overruling Roe for people who have ordered
their thinking and living around that case be dismissed. Pp. 855-856.
(f) No evolution of legal principle
has left Roe's central rule a doctrinal anachronism discounted by society. If
Roe is placed among the cases exemplified by Griswold, supra, it is clearly in
no jeopardy, since subsequent constitutional developments have neither
disturbed, nor do they threaten to diminish, the liberty recognized in such
cases. Similarly, if Roe is seen as stating a rule of personal autonomy and
bodily integrity, akin to cases recognizing limits on governmental power to
mandate medical treatment or to bar its rejection, this Court's post-Roe
decisions accord with Roe's view that a State's interest in the protection of
life falls short of justifying any plenary override of individual liberty
claims. See, e.g., Cruzan v. Director, M. Dept. of Health, 497
U.S. 261, 278 . Finally, if Roe is classified as sui generis, there clearly
has been no erosion of its central determination. It was expressly reaffirmed
in Akron v. Akron Center for Reproductive Health, Inc., 462
U.S. 416 (Akron I), and Thornburgh v. American College of Obstetricians and
Gynecologists, 476
U.S. 747 ; and, in Webster v. Reproductive Health Services, 492
U.S. 490 , a majority either voted to reaffirm or declined to address the
constitutional validity of Roe's central holding. Pp. 857-859.
(g) No change in Roe's factual
underpinning has left its central holding obsolete, and none supports an
argument for its overruling. Although subsequent maternal health care advances
allow for later abortions safe to the pregnant woman, and post-Roe neonatal
care developments have advanced viability to a point somewhat earlier, these
facts go only to the scheme of time limits on the realization of competing
interests. Thus, any later divergences from the factual premises of Roe have no
bearing on the validity of its central holding, that viability marks the
earliest point at which the State's interest in fetal [505 U.S. 833, 836] life is
constitutionally adequate to justify a legislative ban on nontherapeutic
abortions. The soundness or unsoundness of that constitutional judgment in no
sense turns on when viability occurs. Whenever it may occur, its attainment
will continue to serve as the critical fact. Pp. 860.
(h) A comparison between Roe and
two decisional lines of comparable significance - the line identified with
Lochner v. New York, 198
U.S. 45 , and the line that began with Plessy v. Ferguson, 163
U.S. 537 - confirms the result reached here. Those lines were overruled -
by, respectively, West Coast Hotel Co. v. Parrish, 300
U.S. 379 , and Brown v. Board of Education, 347
U.S. 483 - on the basis of facts, or an understanding of facts, changed
from those which furnished the claimed justifications for the earlier
constitutional resolutions. The overruling decisions were comprehensible to the
Nation, and defensible, as the Court's responses to changed circumstances. In
contrast, because neither the factual underpinnings of Roe's central holding
nor this Court's understanding of it has changed (and because no other
indication of weakened precedent has been shown), the Court could not pretend
to be reexamining Roe with any justification beyond a present doctrinal
disposition to come out differently from the Roe Court. That is an inadequate
basis for overruling a prior case. Pp. 861-864.
(i) Overruling Roe's central
holding would not only reach an unjustifiable result under stare decisis principles,
but would seriously weaken the Court's capacity to exercise the judicial power
and to function as the Supreme Court of a Nation dedicated to the rule of law.
Where the Court acts to resolve the sort of unique, intensely divisive
controversy reflected in Roe, its decision has a dimension not present in
normal cases, and is entitled to rare precedential force to counter the
inevitable efforts to overturn it and to thwart its implementation. Only the
most convincing justification under accepted standards of precedent could
suffice to demonstrate that a later decision overruling the first was anything
but a surrender to political pressure and an unjustified repudiation of the
principle on which the Court staked its authority in the first instance. Moreover,
the country's loss of confidence in the Judiciary would be underscored by
condemnation for the Court's failure to keep faith with those who support the
decision at a cost to themselves. A decision to overrule Roe's essential
holding under the existing circumstances would address error, if error there
was, at the cost of both profound and unnecessary damage to the Court's
legitimacy and to the Nation's commitment to the rule of law. Pp. 864-869.
JUSTICE O'CONNOR, JUSTICE KENNEDY,
and JUSTICE SOUTER concluded in Part IV that an examination of Roe v. Wade, 410
U.S. 113 , and [505 U.S. 833,
837] subsequent cases, reveals a number of guiding principles
that should control the assessment of the Pennsylvania statute:
(a) To protect the central right
recognized by Roe while at the same time accommodating the State's profound
interest in potential life, see id., at 162, the undue burden standard should
be employed. An undue burden exists, and therefore a provision of law is
invalid, if its purpose or effect is to place substantial obstacles in the path
of a woman seeking an abortion before the fetus attains viability.
(b) Roe's rigid trimester framework
is rejected. To promote the State's interest in potential life throughout
pregnancy, the State may take measures to ensure that the woman's choice is
informed. Measures designed to advance this interest should not be invalidated
if their purpose is to persuade the woman to choose childbirth over abortion.
These measures must not be an undue burden on the right.
(c) As with any medical procedure,
the State may enact regulations to further the health or safety of a woman
seeking an abortion, but may not impose unnecessary health regulations that
present a substantial obstacle to a woman seeking an abortion.
(d) Adoption of the undue burden
standard does not disturb Roe's holding that, regardless of whether exceptions
are made for particular circumstances, a State may not prohibit any woman from
making the ultimate decision to terminate her pregnancy before viability.
(e) Roe's holding that
"subsequent to viability, the State, in promoting its interest in the
potentiality of human life, may, if it chooses, regulate, and even proscribe,
abortion except where it is necessary, in appropriate medical judgment, for the
preservation of the life or health of the mother" is also reaffirmed. Id.,
at 164-165. Pp. 869-879.
JUSTICE O'CONNOR, JUSTICE KENNEDY,
and JUSTICE SOUTER delivered the opinion of the Court with respect to Parts V-A
and V-C, concluding that:
1. As construed by the Court of
Appeals, 3203's medical emergency definition is intended to assure that
compliance with the State's abortion regulations would not in any way pose a
significant threat to a woman's life or health, and thus does not violate the
essential holding of Roe, supra, at 164. Although the definition could be
interpreted in an unconstitutional manner, this Court defers to lower federal
court interpretations of state law unless they amount to "plain"
error. Pp. 879-880.
2. Section 3209's husband
notification provision constitutes an undue burden, and is therefore invalid. A
significant number of women will likely be prevented from obtaining an abortion
just as surely as if Pennsylvania had outlawed the procedure entirely. The fact
that 3209 may affect fewer than one percent of women seeking abortions does not
save it from facial invalidity, since the proper focus of constitutional
inquiry [505 U.S. 833, 838]
is the group for whom the law is a restriction, not the group for whom
it is irrelevant. Furthermore, it cannot be claimed that the father's interest
in the fetus' welfare is equal to the mother's protected liberty, since it is
an inescapable biological fact that state regulation with respect to the fetus
will have a far greater impact on the pregnant woman's bodily integrity than it
will on the husband. Section 3209 embodies a view of marriage consonant with
the common law status of married women, but repugnant to this Court's present
understanding of marriage and of the nature of the rights secured by the
Constitution. See Planned Parenthood of Central Mo. v. Danforth, 428
U.S. 52, 69 . Pp. 887-898.
JUSTICE O'CONNOR, JUSTICE KENNEDY,
and JUSTICE SOUTER, joined by JUSTICE STEVENS, concluded in Part V-E that all
of the statute's recordkeeping and reporting requirements, except that relating
to spousal notice, are constitutional. The reporting provision relating to the
reasons a married woman has not notified her husband that she intends to have
an abortion must be invalidated, because it places an undue burden on a woman's
choice. Pp. 900-901.
JUSTICE O'CONNOR, JUSTICE KENNEDY,
and JUSTICE SOUTER concluded in Parts V-B and V-D that:
1. Section 3205's informed consent
provision is not an undue burden on a woman's constitutional right to decide to
terminate a pregnancy. To the extent Akron I, 462
U.S., at 444 , and Thornburgh, 476
U.S., at 762 , find a constitutional violation when the government
requires, as it does here, the giving of truthful, nonmisleading information
about the nature of the abortion procedure, the attendant health risks and
those of childbirth, and the "probable gestational age" of the fetus,
those cases are inconsistent with Roe's acknowledgment of an important interest
in potential life, and are overruled. Requiring that the woman be informed of
the availability of information relating to the consequences to the fetus does
not interfere with a constitutional right of privacy between a pregnant woman
and her physician, since the doctor-patient relation is derivative of the
woman's position, and does not underlie or override the abortion right.
Moreover, the physician's First Amendment rights not to speak are implicated
only as part of the practice of medicine, which is licensed and regulated by
the State. There is no evidence here that requiring a doctor to give the
required information would amount to a substantial obstacle to a woman seeking
an abortion. The premise behind Akron I's invalidation of a waiting period
between the provision of the information deemed necessary to informed consent
and the performance of an abortion, 462
U.S., at 450 , is also wrong. Although 3205's 24-hour waiting period may
make some abortions more expensive and less convenient, it cannot be said that
it is invalid [505 U.S. 833, 839]
on the present record and in the context of this facial
challenge. Pp. 881-887.
2. Section 3206's one-parent
consent requirement and judicial bypass procedure are constitutional. See, e.g.,
Ohio v. Akron Center for Reproductive Health, 497
U.S. 502, 510 -519. Pp. 899-900.
JUSTICE BLACKMUN concluded that
application of the strict scrutiny standard of review required by this Court's
abortion precedents results in the invalidation of all the challenged
provisions in the Pennsylvania statute, including the reporting requirements,
and therefore concurred in the judgment that the requirement that a pregnant
woman report her reasons for failing to provide spousal notice is
unconstitutional. Pp. 830, 934-936.
THE CHIEF JUSTICE, joined by
JUSTICE WHITE, JUSTICE SCALIA, and JUSTICE THOMAS, concluded that:
1. Although Roe v. Wade, 410
U.S. 113 , is not directly implicated by the Pennsylvania statute, which
simply regulates, and does not prohibit, abortion, a reexamination of the
"fundamental right" Roe accorded to a woman's decision to abort a
fetus, with the concomitant requirement that any state regulation of abortion
survive "strict scrutiny," id., at 154-156, is warranted by the
confusing and uncertain state of this Court's post-Roe decisional law. A review
of post-Roe cases demonstrates both that they have expanded upon Roe in
imposing increasingly greater restrictions on the States, see Thornburgh v.
American College of Obstetricians and Gynecologists, 476
U.S. 747, 783 (Burger, C.J., dissenting), and that the Court has become
increasingly more divided, none of the last three such decisions having
commanded a majority opinion, see Ohio v. Akron Center for Reproductive Health,
497
U.S. 502 ; Hodgson v. Minnesota, 497
U.S. 417 ; Webster v. Reproductive Health Services, 492
U.S. 490 . This confusion and uncertainty complicated the task of the Court
of Appeals, which concluded that the "undue burden" standard adopted
by JUSTICE O'CONNOR in Webster and Hodgson governs the present cases. Pp.
944-951.
2. The Roe Court reached too far
when it analogized the right to abort a fetus to the rights involved in Pierce
v. Society of Sisters, 268
U.S. 510 ; Meyer v. Nebraska, 262
U.S. 390 ; Loving v. Virginia, 388
U.S. 1 ; and Griswold v. Connecticut, 381
U.S. 479 , and thereby deemed the right to abortion to be
"fundamental." None of these decisions endorsed an all-encompassing
"right of privacy," as Roe, supra, at 152-153, claimed. Because
abortion involves the purposeful termination of potential life, the abortion
decision must be recognized as sui generis, different in kind from the rights
protected in the earlier cases under the rubric of personal or family privacy
and autonomy. And the historical traditions of the American people - as
evidenced by the English common [505
U.S. 833, 840] law and by the American abortion statutes in
existence both at the time of the Fourteenth Amendment's adoption and Roe's
issuance - do not support the view that the right to terminate one's pregnancy
is "fundamental." Thus, enactments abridging that right need not be
subjected to strict scrutiny. Pp. 951-953.
3. The undue burden standard
adopted by the joint opinion of JUSTICES O'CONNOR, KENNEDY, and SOUTER has no
basis in constitutional law, and will not result in the sort of simple
limitation, easily applied, which the opinion anticipates. To evaluate abortion
regulations under that standard, judges will have to make the subjective,
unguided determination whether the regulations place "substantial
obstacles" in the path of a woman seeking an abortion, undoubtedly
engendering a variety of conflicting views. The standard presents nothing more
workable than the trimester framework the joint opinion discards, and will
allow the Court, under the guise of the Constitution, to continue to impart its
own preferences on the States in the form of a complex abortion code. Pp.
964-966.
4. The correct analysis is that set
forth by the plurality opinion in Webster, supra: a woman's interest in having
an abortion is a form of liberty protected by the Due Process Clause, but
States may regulate abortion procedures in ways rationally related to a
legitimate state interest. P. 966.
5. Section 3205's requirements are
rationally related to the State's legitimate interest in assuring that a
woman's consent to an abortion be fully informed. The requirement that a
physician disclose certain information about the abortion procedure and its
risks and alternatives is not a large burden, and is clearly related to
maternal health and the State's interest in informed consent. In addition, a
State may rationally decide that physicians are better qualified than
counselors to impart this information and answer questions about the abortion
alternatives' medical aspects. The requirement that information be provided
about the availability of paternal child support and state-funded alternatives
is also related to the State's informed consent interest, and furthers the
State's interest in preserving unborn life. That such information might create
some uncertainty and persuade some women to forgo abortions only demonstrates
that it might make a difference, and is therefore relevant to a woman's
informed choice. In light of this plurality's rejection of Roe's
"fundamental right" approach to this subject, the Court's contrary
holding in Thornburgh is not controlling here. For the same reason, this
Court's previous holding invalidating a State's 24-hour mandatory waiting
period should not be followed. The waiting period helps ensure that a woman's
decision to abort is a well-considered one, and rationally furthers the State's
legitimate interest in maternal health and [505 U.S. 833, 841] in unborn life. It may delay,
but does not prohibit, abortions; and both it and the informed consent
provisions do not apply in medical emergencies. Pp. 966-970.
6. The statute's parental consent
provision is entirely consistent with this Court's previous decisions involving
such requirements. See, e.g., Planned Parenthood Ass. of Kansas City, M., Inc.
v. Ashcroft, 462
U.S. 476 . It is reasonably designed to further the State's important and
legitimate interest "in the welfare of its young citizens, whose
immaturity, inexperience, and lack of judgment may sometimes impair their
ability to exercise their rights wisely." Hodgson, supra, at 444. Pp. 970-971.
7. Section 3214(a)'s requirement
that abortion facilities file a report on each abortion is constitutional,
because it rationally furthers the State's legitimate interests in advancing
the state of medical knowledge concerning maternal health and prenatal life, in
gathering statistical information with respect to patients, and in ensuring
compliance with other provisions of the Act, while keeping the reports
completely confidential. Public disclosure of other reports made by facilities
receiving public funds - those identifying the facilities and any parent,
subsidiary, or affiliated organizations, 3207(b), and those revealing the total
number of abortions performed, broken down by trimester, 3214(f) - are
rationally related to the State's legitimate interest in informing taxpayers as
to who is benefiting from public funds and what services the funds are
supporting; and records relating to the expenditure of public funds are
generally available to the public under Pennsylvania law. Pp. 976-977.
JUSTICE SCALIA, joined by THE CHIEF
JUSTICE, JUSTICE WHITE, and JUSTICE THOMAS, concluded that a woman's decision
to abort her unborn child is not a constitutionally protected
"liberty," because (1) the Constitution says absolutely nothing about
it, and (2) the longstanding traditions of American society have permitted it
to be legally proscribed. See, e.g., Ohio v. Akron Center for Reproductive
Health, 497
U.S. 502, 520 (SCALIA, J., concurring). The Pennsylvania statute should be
upheld in its entirety under the rational basis test. Pp. 979-981.
O'CONNOR, KENNEDY, and SOUTER, JJ., announced the judgment
of the Court and delivered the opinion of the Court with respect to Parts I,
II, III, V-A, V-C, and VI, in which BLACKMUN and STEVENS, JJ., joined, an
opinion with respect to Part V-E, in which STEVENS, J., joined, and an opinion
with respect to Parts IV, V-B, and V-D. STEVENS, J., filed an opinion
concurring in part and dissenting in part. BLACKMUN, J., filed an opinion
concurring in part, concurring in the judgment in part, and dissenting in part,
post, p. 911. REHNQUIST, C.J., filed an opinion concurring in the judgment in
part and dissenting in part, in which [505
U.S. 833, 842] WHITE, SCALIA, and THOMAS, JJ., joined, post, p.
922. SCALIA, J., filed an opinion concurring in the judgment in part and
dissenting in part, in which REHNQUIST, C.J., and WHITE and THOMAS, JJ.,
joined, post, p. 979.
Kathryn Kolbert argued the cause for petitioners in No. 91-744 and
respondents in No. 91-902. With her on the briefs were Janet Benshoof, Lynn M.
Paltrow, Rachael N. Pine, Steven R. Shapiro, John A. Powell, Linda J. Wharton,
and Carol E. Tracy.
Ernest D. Preate, Jr., Attorney General of Pennsylvania, argued the cause
for respondents in No. 91-744 and petitioners in No. 91-902. With him on the
brief were John G. Knorr III, Chief Deputy Attorney General, and Kate L.
Mershimer, Senior Deputy Attorney General.
Solicitor General Starr argued the cause for the United States as amicus
curiae in support of respondents in No. 91-744 and petitioners in No. 91-902.
With him on the brief were Assistant Attorney General Gerson, Paul J. Larkin,
Jr., Thomas G. Hungar, and Alfred R. Mollin.Fn
Fn [505 U.S. 833, 842] Briefs
of amici curiae were filed for the State of New York et al. by Robert Abrams,
Attorney General of New York, Jerry Boone, Solicitor General, Mary Ellen Burns,
Chief Assistant Attorney General, and Sanford M. Cohen, Donna I. Dennis,
Marjorie Fujiki, and Shelley B. Mayer, Assistant Attorneys General, and John
McKernan, Governor of Maine, and Michael E. Carpenter, Attorney General,
Richard Blumenthal, Attorney General of Connecticut, Charles M. Oberly III,
Attorney General of Delaware, Warren Price III, Attorney General of Hawaii,
Roland W. Burris, Attorney General of Illinois, Bonnie J. Campbell, Attorney
General of Iowa, J. Joseph Curran, Jr., Attorney General of Maryland, Scott
Harshbarger, Attorney General of Massachusetts, Frankie Sue Del Papa, Attorney
General of Nevada, Robert J. Del Tufo, Attorney General of New Jersey, Tom
Udall, Attorney General of New Mexico, Lacy H. Thornburg, Attorney General of
North Carolina, James E. O'Neil, Attorney General of Rhode Island, Dan Morales,
Attorney General of Texas, Jeffrey L. Amestoy, Attorney General of Vermont, and
John Payton, Corporation Counsel of District of Columbia; for the State of Utah
by R. Paul Van Dam, Attorney General, and Mary Anne Q. Wood, Special Assistant
Attorney General; for the city of New York et al. by O. Peter Sherwood, Conrad
Harper, Janice Goodman, Leonard J. Koerner, Lorna Bade Goodman, Gail Rubin, and
Julie Mertus; for 178 Organizations by Pamela S. [505 U.S. 833, 843] Karlan and Sarah Weddington;
for Agudath Israel of America by David Zwiebel; for the Alan Guttmacher
Institute et al. by Colleen K. Connell and Dorothy B. Zimbrakos; for the
American Academy of Medical Ethics by Joseph W. Dellapenna; for the American
Association of Prolife Obstetricians and Gynecologists et al. by William
Bentley Ball, Philip J. Murren, and Maura K. Quinlan; for the American College
of Obstetricians and Gynecologists et al. by Carter G. Phillips, Ann E. Allen,
Laurie R. Rockett, Joel I. Klein, Nadine Taub, and Sarah C. Carey; for the
American Psychological Association by David W. Ogden; for Texas Black Americans
for Life by Lawrence J. Joyce and Craig H. Greenwood; for Catholics United for
Life et al. by Thomas Patrick Monaghan, Jay Alan Sekulow, Walter M. Weber,
Thomas A. Glessner, Charles E. Rice, and Michael J. Laird; for the Elliot
Institute for Social Sciences Research by Stephen R. Kaufmann; for Feminists
for Life of America et al. by Keith A. Fournier, John G. Stepanovich, Christine
Smith Torre, Theodore H. Amshoff, Jr., and Mary Dice Grenen; for Focus on the
Family et al. by Stephen H. Galebach, Gregory J. Granitto, Stephen W. Reed,
David L. Llewellyn, Jr., Benjamin W. Bull, and Leonard J. Pranschke; for the
Knights of Columbus by Carl A. Anderson; for Life Issues Institute by James
Bopp, Jr., and Richard E. Coleson; for the NAACP Legal Defense and Educational
Fund, Inc., et al. by Julius L. Chambers, Ronald L. Ellis, and Alice L. Brown;
for the National Legal Foundation by Robert K. Skolrood; for National Right to
Life, Inc., by Messrs. Bopp and Coleson, Robert A. Destro, and A. Eric
Johnston; for the Pennsylvania Coalition Against Domestic Violence et al. by
Phyllis Gelman; for the Rutherford Institute et al. by Thomas W. Strahan, John
W. Whitehead, Mr. Johnston, Stephen E. Hurst, Joseph Secola, Thomas S.
Neuberger, J. Brian Heller, Amy Dougherty, Stanley R. Jones, David Melton,
Robert R. Melnick, William Bonner, W. Charles Bundren, and James Knicely; for
the Southern Center for Law & Ethics by Tony G. Miller; for the United
States Catholic Conference et al. by Mark E. Chopko, Phillip H. Harris, Michael
K. Whitehead, and Forest D. Montgomery; for University Faculty for Life by
Clarke D. Forsythe and Victor G. Rosenblum; for Certain American State
Legislators by Paul Benjamin Linton; for 19 Arizona Legislators by Ronald D.
Maines; for Representative Henry J. Hyde et al. by Albert P. Blaustein and
Kevin J. Todd; for Representative Don Edwards et al. by Walter Dellinger and
Lloyd N. Cutler; and for 250 American Historians by Sylvia A. Law. [505 U.S. 833, 843]
JUSTICE O'CONNOR, JUSTICE KENNEDY, and JUSTICE SOUTER announced the judgment
of the Court and delivered the opinion of the Court with respect to Parts I,
II, III, V-A, [505 U.S. 833, 844]
V-C, and VI, an opinion with respect to Part V-E, in which
JUSTICE STEVENS joins, and an opinion with respect to Parts IV, V-B, and V-D.
Liberty finds no refuge in a jurisprudence of doubt. Yet, 19 years after our
holding that the Constitution protects a woman's right to terminate her
pregnancy in its early stages, Roe v. Wade, 410
U.S. 113 (1973), that definition of liberty is still questioned. Joining
the respondents as amicus curiae, the United States, as it has done in five
other cases in the last decade, again asks us to overrule Roe. See Brief for
Respondents 104-117; Brief for United States as Amicus Curiae 8.
At issue in these cases are five provisions of the Pennsylvania Abortion
Control Act of 1982, as amended in 1988 and 1989. 18 Pa. Cons. Stat. 3203-3220
(1990). Relevant portions of the Act are set forth in the Appendix. Infra at
60. The Act requires that a woman seeking an abortion give her informed consent
prior to the abortion procedure, and specifies that she be provided with
certain information at least 24 hours before the abortion is performed. 3205.
For a minor to obtain an abortion, the Act requires the informed consent of one
of her parents, but provides for a judicial bypass option if the minor does not
wish to or cannot obtain a parent's consent. 3206. Another provision of the Act
requires that, unless certain exceptions apply, a married woman seeking an
abortion must sign a statement indicating that she has notified her husband of
her intended abortion. 3209. The Act exempts compliance with these three
requirements in the event of a "medical emergency," which is defined
in 3203 of the Act. See 3203, 3205(a), 3206(a), 3209(c). In addition to the above
provisions regulating the performance of abortions, the Act imposes certain
reporting requirements on facilities that provide abortion services. 3207(b),
3214(a), 3214(f). [505 U.S. 833,
845]
Before any of these provisions took effect, the petitioners, who are five
abortion clinics and one physician representing himself as well as a class of
physicians who provide abortion services, brought this suit seeking declaratory
and injunctive relief. Each provision was challenged as unconstitutional on its
face. The District Court entered a preliminary injunction against the
enforcement of the regulations, and, after a 3-day bench trial, held all the
provisions at issue here unconstitutional, entering a permanent injunction
against Pennsylvania's enforcement of them. 744 F. Supp. 1323 (ED Pa. 1990).
The Court of Appeals for the Third Circuit affirmed in part and reversed in
part, upholding all of the regulations except for the husband notification
requirement. 947 F.2d 682 (1991). We granted certiorari. 502
U.S. 1056 (1992).
The Court of Appeals found it necessary to follow an elaborate course of
reasoning even to identify the first premise to use to determine whether the
statute enacted by Pennsylvania meets constitutional standards. See 947 F.2d,
at 687-698. And at oral argument in this Court, the attorney for the parties
challenging the statute took the position that none of the enactments can be
upheld without overruling Roe v. Wade. Tr. of Oral Arg. 5-6. We disagree with
that analysis; but we acknowledge that our decisions after Roe cast doubt upon
the meaning and reach of its holding. Further, The CHIEF JUSTICE admits that he
would overrule the central holding of Roe and adopt the rational relationship
test as the sole criterion of constitutionality. See post, at 944,966. State
and federal courts, as well as legislatures throughout the Union, must have
guidance as they seek to address this subject in conformance with the
Constitution. Given these premises, we find it imperative to review once more
the principles that define the rights of the woman and the legitimate authority
of the State respecting the termination of pregnancies by abortion procedures.
After considering the fundamental constitutional questions resolved by Roe,
principles of institutional integrity, [505 U.S. 833, 846] and the rule of stare decisis,
we are led to conclude this: the essential holding of Roe v. Wade should be
retained and once again reaffirmed.
It must be stated at the outset and with clarity that Roe's essential
holding, the holding we reaffirm, has three parts. First is a recognition of
the right of the woman to choose to have an abortion before viability and to
obtain it without undue interference from the State. Before viability, the
State's interests are not strong enough to support a prohibition of abortion or
the imposition of a substantial obstacle to the woman's effective right to
elect the procedure. Second is a confirmation of the State's power to restrict
abortions after fetal viability if the law contains exceptions for pregnancies
which endanger the woman's life or health. And third is the principle that the
State has legitimate interests from the outset of the pregnancy in protecting
the health of the woman and the life of the fetus that may become a child.
These principles do not contradict one another; and we adhere to each.
Constitutional protection of the woman's decision to terminate her pregnancy
derives from the Due Process Clause of the Fourteenth Amendment. It declares
that no State shall "deprive any person of life, liberty, or property,
without due process of law." The controlling word in the cases before us
is "liberty." Although a literal reading of the Clause might suggest
that it governs only the procedures by which a State may deprive persons of
liberty, for at least 105 years, since Mugler v. Kansas, 123
U.S. 623, 660 -661 (1887), the Clause has been understood to contain a
substantive component as well, one "barring certain government actions
regardless of the fairness of the procedures used to implement them."
Daniels v. Williams, 474
U.S. 327, 331 (1986). As Justice Brandeis (joined by Justice Holmes)
observed, [d]espite arguments to the contrary which had seemed to me persuasive,
it is settled that the due process clause of the Fourteenth [505 U.S. 833, 847] Amendment
applies to matters of substantive law as well as to matters of procedure. Thus
all fundamental rights comprised within the term liberty are protected by the
Federal Constitution from invasion by the States. Whitney v. California, 274
U.S. 357, 373 (1927) (concurring opinion). [T]he guaranties of due process,
though having their roots in Magna Carta's "per legem terrae" and
considered as procedural safeguards "against executive usurpation and
tyranny," have in this country "become bulwarks also against
arbitrary legislation." Poe v. Ullman, 367
U.S. 497, 541 (1961) (Harlan, J., dissenting from dismissal on
jurisdictional grounds) (quoting Hurtado v. California, 110
U.S. 516, 532 (1884)).
The most familiar of the substantive liberties protected by the Fourteenth
Amendment are those recognized by the Bill of Rights. We have held that the Due
Process Clause of the Fourteenth Amendment incorporates most of the Bill of
Rights against the States. See, e.g., Duncan v. Louisiana, 391
U.S. 145, 147 -148 (1968). It is tempting, as a means of curbing the
discretion of federal judges, to suppose that liberty encompasses no more than
those rights already guaranteed to the individual against federal interference
by the express provisions of the first eight amendments to the Constitution.
See Adamson v. California, 332
U.S. 46, 68 -92 (1947) (Black, J., dissenting). But of course this Court
has never accepted that view.
It is also tempting, for the same reason, to suppose that the Due Process
Clause protects only those practices, defined at the most specific level, that
were protected against government interference by other rules of law when the
Fourteenth Amendment was ratified. See Michael H. v. Gerald D., 491
U.S. 110, 127 -128, n. 6 (1989) (opinion of SCALIA, J.). But such a view would
be inconsistent with our law. It is a promise of the Constitution that there is
a realm of personal liberty which the government may not enter. We have
vindicated this principle before. Marriage is mentioned nowhere in the Bill of
Rights, and interracial marriage was illegal [505 U.S. 833, 848] in most States in the 19th
century, but the Court was no doubt correct in finding it to be an aspect of
liberty protected against state interference by the substantive component of
the Due Process Clause in Loving v. Virginia, 388
U.S. 1, 12 (1967) (relying, in an opinion for eight Justices, on the Due
Process Clause). Similar examples may be found in Turner v. Safley, 482
U.S. 78, 94 -99 (1987); in Carey v. Population Services International, 431
U.S. 678, 684 -686 (1977); in Griswold v. Connecticut, 381
U.S. 479, 481 -482 (1965), as well as in the separate opinions of a
majority of the Members of the Court in that case, id. at 486-488 (Goldberg,
J., joined by Warren, C.J., and Brennan, J., concurring) (expressly relying on
due process), id. at 500-502 (Harlan, J., concurring in judgment) (same), id.
at 502-507, (WHITE, J., concurring in judgment) (same); in Pierce v. Society of
Sisters, 268
U.S. 510, 534 -535 (1925); and in Meyer v. Nebraska, 262
U.S. 390, 399 -403 (1923).
Neither the Bill of Rights nor the specific practices of States at the time
of the adoption of the Fourteenth Amendment marks the outer limits of the
substantive sphere of liberty which the Fourteenth Amendment protects. See U.S.
Const., Amdt. 9. As the second Justice Harlan recognized:
[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be
found in or limited by the precise terms of the specific guarantees elsewhere
provided in the Constitution. This "liberty" is not a series of
isolated points pricked out in terms of the taking of property; the freedom of
speech, press, and religion; the right to keep and bear arms; the freedom from
unreasonable searches and seizures; and so on. It is a rational continuum
which, broadly speaking, includes a freedom from all substantial arbitrary
impositions and purposeless restraints, . . . and which also recognizes, what a
reasonable and sensitive judgment must, that certain interests require
particularly careful scrutiny of the state needs asserted to justify their
abridgment. Poe v. [505 U.S. 833,
849] Ullman, supra, 367
U.S., at 543 (dissenting from dismissal on jurisdictional grounds).
Justice Harlan wrote these words in addressing an issue the full Court did
not reach in Poe v. Ullman, but the Court adopted his position four Terms later
in Griswold v. Connecticut, supra. In Griswold, we held that the Constitution
does not permit a State to forbid a married couple to use contraceptives. That
same freedom was later guaranteed, under the Equal Protection Clause, for
unmarried couples. See Eisenstadt v. Baird, 405
U.S. 438 (1972). Constitutional protection was extended to the sale and
distribution of contraceptives in Carey v. Population Services International,
supra. It is settled now, as it was when the Court heard arguments in Roe v.
Wade, that the Constitution places limits on a State's right to interfere with
a person's most basic decisions about family and parenthood, see Carey v.
Population Services International, supra; Moore v. East Cleveland, 431
U.S. 494 (1977); Eisenstadt v. Baird, supra; Loving v. Virginia, supra;
Griswold v. Connecticut, supra; Skinner v. Oklahoma ex rel. Williamson, 316
U.S. 535 (1942); Pierce v. Society of Sisters, supra; Meyer v. Nebraska,
supra, as well as bodily integrity, see, e.g., Washington v. Harper, 494
U.S. 210, 221 -222 (1990); Winston v. Lee, 470
U.S. 753 (1985); Rochin v. California, 342
U.S. 165 (1952).
The inescapable fact is that adjudication of substantive due process claims
may call upon the Court in interpreting the Constitution to exercise that same
capacity which, by tradition, courts always have exercised: reasoned judgment.
Its boundaries are not susceptible of expression as a simple rule. That does
not mean we are free to invalidate state policy choices with which we disagree;
yet neither does it permit us to shrink from the duties of our office. As
Justice Harlan observed:
"Due process has not been
reduced to any formula; its content cannot be determined by reference to any
code. [505 U.S. 833, 850] The
best that can be said is that, through the course of this Court's decisions, it
has represented the balance which our Nation, built upon postulates of respect
for the liberty of the individual, has struck between that liberty and the
demands of organized society. If the supplying of content to this
Constitutional concept has, of necessity, been a rational process, it certainly
has not been one where judges have felt free to roam where unguided speculation
might take them. The balance of which I speak is the balance struck by this
country, having regard to what history teaches are the traditions from which it
developed as well as the traditions from which it broke. That tradition is a
living thing. A decision of this Court which radically departs from it could
not long survive, while a decision which builds on what has survived is likely
to be sound. No formula could serve as a substitute, in this area, for judgment
and restraint." Poe v. Ullman, 367
U.S., at 542 (dissenting from dismissal on jurisdictional grounds).
See also Rochin v. California, supra, at 171-172
(Frankfurter, J., writing for the Court) ("To believe that this judicial
exercise of judgment could be avoided by freezing `due process of law' at some
fixed stage of time or thought is to suggest that the most important aspect of
constitutional adjudication is a function for inanimate machines, and not for
judges").
Men and women of good conscience can disagree, and we suppose some always
shall disagree, about the profound moral and spiritual implications of
terminating a pregnancy, even in its earliest stage. Some of us as individuals
find abortion offensive to our most basic principles of morality, but that
cannot control our decision. Our obligation is to define the liberty of all,
not to mandate our own moral code. The underlying constitutional issue is
whether the State can resolve these philosophic questions in such a definitive
way that a woman lacks all choice in the matter, except perhaps [505 U.S. 833, 851] in
those rare circumstances in which the pregnancy is itself a danger to her own
life or health, or is the result of rape or incest.
It is conventional constitutional doctrine that, where reasonable people
disagree, the government can adopt one position or the other. See, e.g.,
Ferguson v. Skrupa, 372
U.S. 726 (1963); Williamson v. Lee Optical of Okla., Inc., 348
U.S. 483 (1955). That theorem, however, assumes a state of affairs in which
the choice does not intrude upon a protected liberty. Thus, while some people
might disagree about whether or not the flag should be saluted, or disagree
about the proposition that it may not be defiled, we have ruled that a State
may not compel or enforce one view or the other. See West Virginia Bd. of Ed.
v. Barnette, 319
U.S. 624 (1943); Texas v. Johnson, 491
U.S. 397 (1989).
Our law affords constitutional protection to personal decisions relating to marriage,
procreation, contraception, family relationships, child rearing, and education.
Carey v. Population Services International, 431
U.S., at 685 . Our cases recognize the right of the individual, married or
single, to be free from unwarranted governmental intrusion into matters so
fundamentally affecting a person as the decision whether to bear or beget a
child. Eisenstadt v. Baird, supra, 405
U.S., at 453 (emphasis in original). Our precedents "have respected
the private realm of family life which the state cannot enter." Prince v.
Massachusetts, 321
U.S. 158, 166 (1944). These matters, involving the most intimate and
personal choices a person may make in a lifetime, choices central to personal
dignity and autonomy, are central to the liberty protected by the Fourteenth
Amendment. At the heart of liberty is the right to define one's own concept of
existence, of meaning, of the universe, and of the mystery of human life.
Beliefs about these matters could not define the attributes of personhood were
they formed under compulsion of the State. [505 U.S. 833, 852]
These considerations begin our analysis of the woman's interest in
terminating her pregnancy, but cannot end it, for this reason: though the
abortion decision may originate within the zone of conscience and belief, it is
more than a philosophic exercise. Abortion is a unique act. It is an act
fraught with consequences for others: for the woman who must live with the
implications of her decision; for the persons who perform and assist in the
procedure; for the spouse, family, and society which must confront the
knowledge that these procedures exist, procedures some deem nothing short of an
act of violence against innocent human life; and, depending on one's beliefs,
for the life or potential life that is aborted. Though abortion is conduct, it
does not follow that the State is entitled to proscribe it in all instances.
That is because the liberty of the woman is at stake in a sense unique to the
human condition, and so, unique to the law. The mother who carries a child to
full term is subject to anxieties, to physical constraints, to pain that only
she must bear. That these sacrifices have from the beginning of the human race
been endured by woman with a pride that ennobles her in the eyes of others and
gives to the infant a bond of love cannot alone be grounds for the State to
insist she make the sacrifice. Her suffering is too intimate and personal for
the State to insist, without more, upon its own vision of the woman's role,
however dominant that vision has been in the course of our history and our
culture. The destiny of the woman must be shaped to a large extent on her own
conception of her spiritual imperatives and her place in society.
It should be recognized, moreover, that in some critical respects, the
abortion decision is of the same character as the decision to use
contraception, to which Griswold v. Connecticut, Eisenstadt v. Baird, and Carey
v. Population Services International afford constitutional protection. We have
no doubt as to the correctness of those decisions. They support [505 U.S. 833, 853] the
reasoning in Roe relating to the woman's liberty, because they involve personal
decisions concerning not only the meaning of procreation but also human
responsibility and respect for it. As with abortion, reasonable people will
have differences of opinion about these matters. One view is based on such
reverence for the wonder of creation that any pregnancy ought to be welcomed
and carried to full term, no matter how difficult it will be to provide for the
child and ensure its wellbeing. Another is that the inability to provide for
the nurture and care of the infant is a cruelty to the child and an anguish to
the parent. These are intimate views with infinite variations, and their deep,
personal character underlay our decisions in Griswold, Eisenstadt, and Carey.
The same concerns are present when the woman confronts the reality that,
perhaps despite her attempts to avoid it, she has become pregnant.
It was this dimension of personal liberty that Roe sought to protect, and
its holding invoked the reasoning and the tradition of the precedents we have
discussed, granting protection to substantive liberties of the person. Roe was,
of course, an extension of those cases and, as the decision itself indicated,
the separate States could act in some degree to further their own legitimate
interests in protecting prenatal life. The extent to which the legislatures of the
States might act to outweigh the interests of the woman in choosing to
terminate her pregnancy was a subject of debate both in Roe itself and in
decisions following it.
While we appreciate the weight of the arguments made on behalf of the State
in the cases before us, arguments which in their ultimate formulation conclude
that Roe should be overruled, the reservations any of us may have in
reaffirming the central holding of Roe are outweighed by the explication of
individual liberty we have given, combined with the force of stare decisis. We
turn now to that doctrine. [505
U.S. 833, 854]
The obligation to follow precedent begins with necessity, and a contrary
necessity marks its outer limit. With Cardozo, we recognize that no judicial
system could do society's work if it eyed each issue afresh in every case that
raised it. See B. Cardozo, The Nature of the Judicial Process 149 (1921).
Indeed, the very concept of the rule of law underlying our own Constitution
requires such continuity over time that a respect for precedent is, by
definition, indispensable. See Powell, Stare Decisis and Judicial Restraint,
1991 Journal of Supreme Court History 13, 16. At the other extreme, a different
necessity would make itself felt if a prior judicial ruling should come to be
seen so clearly as error that its enforcement was, for that very reason,
doomed.
Even when the decision to overrule a prior case is not, as in the rare,
latter instance, virtually foreordained, it is common wisdom that the rule of
stare decisis is not an "inexorable command," and certainly it is not
such in every constitutional case, see Burnet v. Coronado Oil & Gas Co., 285
U.S. 393, 405 -411 (1932) (Brandeis, J., dissenting). See also Payne v.
Tennessee, 501
U.S. 808, 842 (1991) (SOUTER, J., joined by KENNEDY, J., concurring); Arizona
v. Rumsey, 467
U.S. 203, 212 (1984). Rather, when this Court reexamines a prior holding,
its judgment is customarily informed by a series of prudential and pragmatic
considerations designed to test the consistency of overruling a prior decision
with the ideal of the rule of law, and to gauge the respective costs of
reaffirming and overruling a prior case. Thus, for example, we may ask whether
the rule has proven to be intolerable simply in defying practical workability,
Swift & Co. v. Wickham, 382
U.S. 111, 116 (1965); whether the rule is subject to a kind of reliance
that would lend a special hardship to the consequences of overruling and add
inequity to the cost of repudiation, e.g., United States v. Title Ins. &
Trust [505 U.S. 833, 855] Co.,
265
U.S. 472, 486 (1924); whether related principles of law have so far
developed as to have left the old rule no more than a remnant of abandoned
doctrine, see Patterson v. McLean Credit Union, 491
U.S. 164, 173 -174 (1989); or whether facts have so changed, or come to be
seen so differently, as to have robbed the old rule of significant application
or justification, e.g., Burnet, supra, 285 U.S. at 412 (Brandeis, J.,
dissenting).
So in this case, we may enquire whether Roe's central rule has been found
unworkable; whether the rule's limitation on state power could be removed
without serious inequity to those who have relied upon it or significant damage
to the stability of the society governed by it; whether the law's growth in the
intervening years has left Roe's central rule a doctrinal anachronism
discounted by society; and whether Roe's premises of fact have so far changed
in the ensuing two decades as to render its central holding somehow irrelevant
or unjustifiable in dealing with the issue it addressed.
Although Roe has engendered opposition, it has in no sense proven "unworkable,"
see Garcia v. San Antonio Metropolitan Transit Authority, 469
U.S. 528, 546 (1985), representing as it does a simple limitation beyond which
a state law is unenforceable. While Roe has, of course, required judicial
assessment of state laws affecting the exercise of the choice guaranteed
against government infringement, and although the need for such review will
remain as a consequence of today's decision, the required determinations fall
within judicial competence.
The inquiry into reliance counts the cost of a rule's repudiation as it
would fall on those who have relied reasonably on the rule's continued
application. Since the classic case for weighing reliance heavily in favor of
following the earlier rule occurs in the commercial context, see Payne v.
Tennessee, [505 U.S. 833, 856]
supra, at 828, where advance planning of great precision is most
obviously a necessity, it is no cause for surprise that some would find no
reliance worthy of consideration in support of Roe.
While neither respondents nor their amici in so many words deny that the
abortion right invites some reliance prior to its actual exercise, one can
readily imagine an argument stressing the dissimilarity of this case to one
involving property or contract. Abortion is customarily chosen as an unplanned
response to the consequence of unplanned activity or to the failure of
conventional birth control, and except on the assumption that no intercourse
would have occurred but for Roe's holding, such behavior may appear to justify
no reliance claim. Even if reliance could be claimed on that unrealistic
assumption, the argument might run, any reliance interest would be de minimis.
This argument would be premised on the hypothesis that reproductive planning
could take virtually immediate account of any sudden restoration of state
authority to ban abortions.
To eliminate the issue of reliance that easily, however, one would need to
limit cognizable reliance to specific instances of sexual activity. But to do
this would be simply to refuse to face the fact that, for two decades of
economic and social developments, people have organized intimate relationships
and made choices that define their views of themselves and their places in
society, in reliance on the availability of abortion in the event that
contraception should fail. The ability of women to participate equally in the
economic and social life of the Nation has been facilitated by their ability to
control their reproductive lives. See, e.g., R. Petchesky, Abortion and Woman's
Choice 109, 133, n. 7 (rev. ed. 1990). 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. [505 U.S. 833, 857]
No evolution of legal principle has left Roe's doctrinal footings weaker
than they were in 1973. No development of constitutional law since the case was
decided has implicitly or explicitly left Roe behind as a mere survivor of
obsolete constitutional thinking.
It will be recognized, of course, that Roe stands at an intersection of two
lines of decisions, but in whichever doctrinal category one reads the case, the
result for present purposes will be the same. The Roe Court itself placed its
holding in the succession of cases most prominently exemplified by Griswold v.
Connecticut, 381
U.S. 479 (1965). See Roe, 410
U.S., at 152 -153. When it is so seen, Roe is clearly in no jeopardy, since
subsequent constitutional developments have neither disturbed, nor do they
threaten to diminish, the scope of recognized protection accorded to the
liberty relating to intimate relationships, the family, and decisions about
whether or not to beget or bear a child. See, e.g., Carey v. Population
Services International, 431
U.S. 678 (1977); Moore v. East Cleveland, 431
U.S. 494 (1977).
Roe, however, may be seen not only as an exemplar of Griswold liberty but as
a rule (whether or not mistaken) of personal autonomy and bodily integrity,
with doctrinal affinity to cases recognizing limits on governmental power to
mandate medical treatment or to bar its rejection. If so, our cases since Roe
accord with Roe's view that a State's interest in the protection of life falls
short of justifying any plenary override of individual liberty claims. Cruzan
v. Director, Mo. Dept. of Health, 497
U.S. 261, 278 (1990); cf., e.g., Riggins v. Nevada, 504
U.S. 127, 135 (1992); Washington v. Harper, 494
U.S. 210 (1990); see also, e.g., Rochin v. California, 342
U.S. 165 (1952); Jacobson v. Massachusetts, 197
U.S. 11, 24 -30 (1905).
Finally, one could classify Roe as sui generis. If the case is so viewed,
then there clearly has been no erosion of its central determination. The
original holding resting on the [505
U.S. 833, 858] concurrence of seven Members of the Court in 1973
was expressly affirmed by a majority of six in 1983, see Akron v. Akron Center
for Reproductive Health, Inc., 462
U.S. 416 (1983) (Akron I), and by a majority of five in 1986, see
Thornburgh v. American College of Obstetricians and Gynecologists, 476
U.S. 747 (1986), expressing adherence to the constitutional ruling despite
legislative efforts in some States to test its limits. More recently, in
Webster v. Reproductive Health Services, 492
U.S. 490 (1989), although two of the present authors questioned the
trimester framework in a way consistent with our judgment today, see id., at
518 (REHNQUIST, C.J., joined by WHITE and KENNEDY, JJ.); id., at 529 (O'CONNOR,
J., concurring in part and concurring in judgment), a majority of the Court
either decided to reaffirm or declined to address the constitutional validity
of the central holding of Roe. See Webster, 492
U.S., at 521 (REHNQUIST, C.J., joined by WHITE and KENNEDY, JJ.); id., at
525-526 (O'CONNOR, J., concurring in part and concurring in judgment); id., at
537, 553 (BLACKMUN, J., joined by Brennan and Marshall, JJ., concurring in part
and dissenting in part); id., at 561-563 (STEVENS, J., concurring in part and
dissenting in part).
Nor will courts building upon Roe be likely to hand down erroneous decisions
as a consequence. Even on the assumption that the central holding of Roe was in
error, that error would go only to the strength of the state interest in fetal
protection, not to the recognition afforded by the Constitution to the woman's
liberty. The latter aspect of the decision fits comfortably within the
framework of the Court's prior decisions, including Skinner v. Oklahoma ex rel.
Williamson, 316
U.S. 535 (1942); Griswold, supra; Loving v. Virginia, 388
U.S. 1 (1967); and Eisenstadt v. Baird, 405
U.S. 438 (1972), the holdings of which are "not a series of isolated
points," but mark a "rational continuum." Poe v. Ullman, 367
U.S., at 543 (Harlan, J., dissenting). As we described in [505 U.S. 833, 859] Carey
v. Population Services International, supra, the liberty which encompasses
those decisions
"includes "the interest
in independence in making certain kinds of important decisions." While the
outer limits of this aspect of [protected liberty] have not been marked by the
Court, it is clear that among the decisions that an individual may make without
unjustified government interference are personal decisions "`relating to
marriage, procreation, contraception, family relationships, and childrearing
and education.'" 431
U.S., at 684 -685 (citations omitted).
The soundness of this prong of the Roe analysis is apparent
from a consideration of the alternative. If indeed the woman's interest in deciding
whether to bear and beget a child had not been recognized as in Roe, the State
might as readily restrict a woman's right to choose to carry a pregnancy to
term as to terminate it, to further asserted state interests in population
control, or eugenics, for example. Yet Roe has been sensibly relied upon to
counter any such suggestions. E.g., Arnold v. Board of Education of Escambia
County, Ala., 880 F.2d 305, 311 (CA11 1989) (relying upon Roe and concluding
that government officials violate the Constitution by coercing a minor to have
an abortion); Avery v. County of Burke, 660 F.2d 111, 115 (CA4 1981) (county
agency inducing teenage girl to undergo unwanted sterilization on the basis of
misrepresentation that she had sickle cell trait); see also In re Quinlan, 70
N. J. 10, 355 A.2d 647, cert. denied sub nom. Garger v. New Jersey, 429
U.S. 922 (1976) (relying on Roe in finding a right to terminate medical
treatment). In any event, because Roe's scope is confined by the fact of its
concern with postconception potential life, a concern otherwise likely to be
implicated only by some forms of contraception protected independently under
Griswold and later cases, any error in Roe is unlikely to have serious
ramifications in future cases. [505
U.S. 833, 859]
We have seen how time has overtaken some of Roe's factual assumptions:
advances in maternal health care allow for abortions safe to the mother later in
pregnancy than was true in 1973, see Akron I, supra, 462 U.S. at 429, n. 11,
and advances in neonatal care have advanced viability to a point somewhat
earlier. Compare Roe, 410
U.S., at 160 , with Webster, supra, 492
U.S., at 515 -516 (opinion of REHNQUIST, C.J.); see Akron I, 462
U.S., at 457 , and n. 5 (O'CONNOR, J., dissenting). But these facts go only
to the scheme of time limits on the realization of competing interests, and the
divergences from the factual premises of 1973 have no bearing on the validity
of Roe's central holding, that viability marks the earliest point at which the
State's interest in fetal life is constitutionally adequate to justify a
legislative ban on nontherapeutic abortions. The soundness or unsoundness of
that constitutional judgment in no sense turns on whether viability occurs at
approximately 28 weeks, as was usual at the time of Roe, at 23 to 24 weeks, as
it sometimes does today, or at some moment even slightly earlier in pregnancy,
as it may if fetal respiratory capacity can somehow be enhanced in the future.
Whenever it may occur, the attainment of viability may continue to serve as the
critical fact, just as it has done since Roe was decided; which is to say that
no change in Roe's factual underpinning has left its central holding obsolete,
and none supports an argument for overruling it.
The sum of the precedential enquiry to this point shows Roe's underpinnings
unweakened in any way affecting its central holding. While it has engendered
disapproval, it has not been unworkable. An entire generation has come of age
free to assume Roe's concept of liberty in defining the capacity of women to
act in society, and to make reproductive decisions; no erosion of principle
going to liberty or personal autonomy has left Roe's central holding a
doctrinal remnant; [505 U.S. 833,
861] Roe portends no developments at odds with other precedent
for the analysis of personal liberty; and no changes of fact have rendered
viability more or less appropriate as the point at which the balance of
interests tips. Within the bounds of normal stare decisis analysis, then, and
subject to the considerations on which it customarily turns, the stronger
argument is for affirming Roe's central holding, with whatever degree of
personal reluctance any of us may have, not for overruling it.
In a less significant case, stare decisis analysis could, and would, stop at
the point we have reached. But the sustained and widespread debate Roe has
provoked calls for some comparison between that case and others of comparable
dimension that have responded to national controversies and taken on the
impress of the controversies addressed. Only two such decisional lines from the
past century present themselves for examination, and in each instance the
result reached by the Court accorded with the principles we apply today.
The first example is that line of cases identified with Lochner v. New York,
198
U.S. 45 (1905), which imposed substantive limitations on legislation
limiting economic autonomy in favor of health and welfare regulation, adopting,
in Justice Holmes's view, the theory of laissez-faire. Id., at 75 (dissenting
opinion). The Lochner decisions were exemplified by Adkins v. Children's
Hospital of District of Columbia, 261
U.S. 525 (1923), in which this Court held it to be an infringement of
constitutionally protected liberty of contract to require the employers of
adult women to satisfy minimum wage standards. Fourteen years later, West Coast
Hotel Co. v. Parrish, 300
U.S. 379 (1937), signaled the demise of Lochner by overruling Adkins. In
the meantime, the Depression had come and, with it, the lesson that seemed
unmistakable to most people by 1937, that the interpretation of contractual
freedom protected in Adkins rested on fundamentally [505 U.S. 833, 862] false factual
assumptions about the capacity of a relatively unregulated market to satisfy
minimal levels of human welfare. See West Coast Hotel Co., supra, at 399. As
Justice Jackson wrote of the constitutional crisis of 1937 shortly before he
came on the bench: "The older world of laissez-faire was recognized
everywhere outside the Court to be dead." The Struggle for Judicial
Supremacy 85 (1941). The facts upon which the earlier case had premised a
constitutional resolution of social controversy had proven to be untrue, and
history's demonstration of their untruth not only justified but required the
new choice of constitutional principle that West Coast Hotel announced. Of
course, it was true that the Court lost something by its misperception, or its
lack of prescience, and the Court-packing crisis only magnified the loss; but
the clear demonstration that the facts of economic life were different from
those previously assumed warranted the repudiation of the old law.
The second comparison that 20th century history invites is with the cases
employing the separate-but-equal rule for applying the Fourteenth Amendment's
equal protection guarantee. They began with Plessy v. Ferguson, 163
U.S. 537 (1896), holding that legislatively mandated racial segregation in
public transportation works no denial of equal protection, rejecting the
argument that racial separation enforced by the legal machinery of American
society treats the black race as inferior. The Plessy Court considered the
underlying fallacy of the plaintiff's argument to consist in the assumption
that the enforced separation of the two races stamps the colored race with a
badge of inferiority. If this be so, it is not by reason of anything found in
the act, but solely because the colored race chooses to put that construction
upon it. Id., at 551. Whether, as a matter of historical fact, the Justices in
the Plessy majority believed this or not, see id., 557, 562 (Harlan, J.,
dissenting), this understanding of the implication of segregation was the
stated justification for the Court's opinion. But this understanding of [505 U.S. 833, 863] the
facts and the rule it was stated to justify were repudiated in Brown v. Board
of Education, 347
U.S. 483 (1954) (Brown I). As one commentator observed, the question before
the Court in Brown was whether discrimination inheres in that segregation which
is imposed by law in the twentieth century in certain specific states in the
American Union. And that question has meaning, and can find an answer only on
the ground of history and of common knowledge about the facts of life in the
times and places aforesaid. Black, The Lawfulness of the Segregation Decisions,
69 Yale L.J. 421, 427 (1960).
The Court in Brown addressed these facts of life by observing that whatever
may have been the understanding in Plessy's time of the power of segregation to
stigmatize those who were segregated with a "badge of inferiority,"
it was clear by 1954 that legally sanctioned segregation had just such an
effect, to the point that racially separate public educational facilities were
deemed inherently unequal. 347 U.S., at, 494-495. Society's understanding of
the facts upon which a constitutional ruling was sought in 1954 was thus
fundamentally different from the basis claimed for the decision in 1896. While
we think Plessy was wrong the day it was decided, see Plessy, supra, 163
U.S., at 552 -564 (Harlan, J., dissenting), we must also recognize that the
Plessy Court's explanation for its decision was so clearly at odds with the
facts apparent to the Court in 1954 that the decision to reexamine Plessy was,
on this ground alone, not only justified but required.
West Coast Hotel and Brown each rested on facts, or an understanding of
facts, changed from those which furnished the claimed justifications for the
earlier constitutional resolutions. Each case was comprehensible as the Court's
response to facts that the country could understand, or had come to understand
already, but which the Court of an earlier day, as its own declarations
disclosed, had not been able to perceive. As the decisions were thus
comprehensible, [505 U.S. 833,
864] they were also defensible, not merely as the victories of
one doctrinal school over another by dint of numbers (victories though they
were), but as applications of constitutional principle to facts as they had not
been seen by the Court before. In constitutional adjudication, as elsewhere in
life, changed circumstances may impose new obligations, and the thoughtful part
of the Nation could accept each decision to overrule a prior case as a response
to the Court's constitutional duty.
Because the cases before us present no such occasion, it could be seen as no
such response. Because neither the factual underpinnings of Roe's central
holding nor our understanding of it has changed (and because no other indication
of weakened precedent has been shown), the Court could not pretend to be
reexamining the prior law with any justification beyond a present doctrinal
disposition to come out differently from the Court of 1973. To overrule prior
law for no other reason than that would run counter to the view, repeated in
our cases, that a decision to overrule should rest on some special reason over
and above the belief that a prior case was wrongly decided. See, e.g., Mitchell
v. W.T. Grant Co., 416
U.S. 600, 636 (1974) (Stewart, J., dissenting) ("A basic change in the
law upon a ground no firmer than a change in our membership invites the popular
misconception that this institution is little different from the two political
branches of the Government. No misconception could do more lasting injury to
this Court, and to the system of law which it is our abiding mission to
serve"); Mapp v. Ohio, 367
U.S. 643, 677 (1961) (Harlan, J., dissenting).
The examination of the conditions justifying the repudiation of Adkins by
West Coast Hotel and Plessy by Brown is enough to suggest the terrible price
that would have been paid if the Court had not overruled as it did. In the
present cases, however, as our analysis to this point makes clear, the terrible
price would be paid for overruling. Our analysis [505 U.S. 833, 865] would not be complete,
however, without explaining why overruling Roe's central holding would not only
reach an unjustifiable result under principles of stare decisis, but would
seriously weaken the Court's capacity to exercise the judicial power and to
function as the Supreme Court of a Nation dedicated to the rule of law. To
understand why this would be so, it is necessary to understand the source of
this Court's authority, the conditions necessary for its preservation, and its
relationship to the country's understanding of itself as a constitutional
Republic.
The root of American governmental power is revealed most clearly in the
instance of the power conferred by the Constitution upon the Judiciary of the
United States, and specifically upon this Court. As Americans of each
succeeding generation are rightly told, the Court cannot buy support for its
decisions by spending money, and, except to a minor degree, it cannot
independently coerce obedience to its decrees. The Court's power lies, rather,
in its legitimacy, a product of substance and perception that shows itself in
the people's acceptance of the Judiciary as fit to determine what the Nation's
law means, and to declare what it demands.
The underlying substance of this legitimacy is of course the warrant for the
Court's decisions in the Constitution and the lesser sources of legal principle
on which the Court draws. That substance is expressed in the Court's opinions,
and our contemporary understanding is such that a decision without principled
justification would be no judicial act at all. But even when justification is
furnished by apposite legal principle, something more is required. Because not
every conscientious claim of principled justification will be accepted as such,
the justification claimed must be beyond dispute. The Court must take care to
speak and act in ways that allow people to accept its decisions on the terms
the Court claims for them, as grounded truly in principle, not as compromises
with social and political pressures having, as such, no bearing on the
principled choices that the Court is [505
U.S. 833, 866] obliged to make. Thus, the Court's legitimacy
depends on making legally principled decisions under circumstances in which
their principled character is sufficiently plausible to be accepted by the
Nation.
The need for principled action to be perceived as such is implicated to some
degree whenever this, or any other appellate court, overrules a prior case.
This is not to say, of course, that this Court cannot give a perfectly
satisfactory explanation in most cases. People understand that some of the
Constitution's language is hard to fathom, and that the Court's Justices are
sometimes able to perceive significant facts or to understand principles of law
that eluded their predecessors and that justify departures from existing
decisions. However upsetting it may be to those most directly affected when one
judicially derived rule replaces another, the country can accept some
correction of error without necessarily questioning the legitimacy of the
Court.
In two circumstances, however, the Court would almost certainly fail to
receive the benefit of the doubt in overruling prior cases. There is, first, a
point beyond which frequent overruling would overtax the country's belief in
the Court's good faith. Despite the variety of reasons that may inform and
justify a decision to overrule, we cannot forget that such a decision is
usually perceived (and perceived correctly) as, at the least, a statement that
a prior decision was wrong. There is a limit to the amount of error that can
plausibly be imputed to prior Courts. If that limit should be exceeded,
disturbance of prior rulings would be taken as evidence that justifiable
reexamination of principle had given way to drives for particular results in
the short term. The legitimacy of the Court would fade with the frequency of
its vacillation.
That first circumstance can be described as hypothetical; the second is to
the point here and now. Where, in the performance of its judicial duties, the
Court decides a case in such a way as to resolve the sort of intensely divisive
controversy reflected in Roe and those rare, comparable cases, its [505 U.S. 833, 867] decision
has a dimension that the resolution of the normal case does not carry. It is
the dimension present whenever the Court's interpretation of the Constitution
calls the contending sides of a national controversy to end their national
division by accepting a common mandate rooted in the Constitution.
The Court is not asked to do this very often, having thus addressed the
Nation only twice in our lifetime, in the decisions of Brown and Roe. But when
the Court does act in this way, its decision requires an equally rare
precedential force to counter the inevitable efforts to overturn it and to
thwart its implementation. Some of those efforts may be mere unprincipled
emotional reactions; others may proceed from principles worthy of profound
respect. But whatever the premises of opposition may be, only the most
convincing justification under accepted standards of precedent could suffice to
demonstrate that a later decision overruling the first was anything but a
surrender to political pressure and an unjustified repudiation of the principle
on which the Court staked its authority in the first instance. So to overrule
under fire in the absence of the most compelling reason to reexamine a
watershed decision would subvert the Court's legitimacy beyond any serious
question. Cf. Brown v. Board okf Education, 349
U.S. 294, 300 (1955) (Brown II) ("[I]t should go without saying that
the vitality of th[e] constitutional principles [announced in Brown I,] cannot
be allowed to yield simply because of disagreement with them").
The country's loss of confidence in the Judiciary would be underscored by an
equally certain and equally reasonable condemnation for another failing in
overruling unnecessarily and under pressure. Some cost will be paid by anyone
who approves or implements a constitutional decision where it is unpopular, or
who refuses to work to undermine the decision or to force its reversal. The
price may be criticism or ostracism, or it may be violence. An extra price will
be paid by those who themselves disapprove of the decision's results [505 U.S. 833, 868] when
viewed outside of constitutional terms, but who nevertheless struggle to accept
it, because they respect the rule of law. To all those who will be so tested by
following, the Court implicitly undertakes to remain steadfast, lest in the end
a price be paid for nothing. The promise of constancy, once given, binds its
maker for as long as the power to stand by the decision survives and the
understanding of the issue has not changed so fundamentally as to render the
commitment obsolete. From the obligation of this promise, this Court cannot and
should not assume any exemption when duty requires it to decide a case in
conformance with the Constitution. A willing breach of it would be nothing less
than a breach of faith, and no Court that broke its faith with the people could
sensibly expect credit for principle in the decision by which it did that.
It is true that diminished legitimacy may be restored, but only slowly. Unlike
the political branches, a Court thus weakened could not seek to regain its
position with a new mandate from the voters, and even if the Court could
somehow go to the polls, the loss of its principled character could not be
retrieved by the casting of so many votes. Like the character of an individual,
the legitimacy of the Court must be earned over time. So, indeed, must be the
character of a Nation of people who aspire to live according to the rule of
law. Their belief in themselves as such a people is not readily separable from
their understanding of the Court invested with the authority to decide their
constitutional cases and speak before all others for their constitutional
ideals. If the Court's legitimacy should be undermined, then, so would the country
be in its very ability to see itself through its constitutional ideals. The
Court's concern with legitimacy is not for the sake of the Court, but for the
sake of the Nation to which it is responsible.
The Court's duty in the present case is clear. In 1973, it confronted the
already-divisive issue of governmental power [505 U.S. 833, 869] to limit personal choice to
undergo abortion, for which it provided a new resolution based on the due
process guaranteed by the Fourteenth Amendment. Whether or not a new social
consensus is developing on that issue, its divisiveness is no less today than
in 1973, and pressure to overrule the decision, like pressure to retain it, has
grown only more intense. A decision to overrule Roe's essential holding under
the existing circumstances would address error, if error there was, at the cost
of both profound and unnecessary damage to the Court's legitimacy, and to the
Nation's commitment to the rule of law. It is therefore imperative to adhere to
the essence of Roe's original decision, and we do so today.
From what we have said so far, it follows that it is a constitutional
liberty of the woman to have some freedom to terminate her pregnancy. We
conclude that the basic decision in Roe was based on a constitutional analysis
which we cannot now repudiate. The woman's liberty is not so unlimited,
however, that, from the outset, the State cannot show its concern for the life
of the unborn and, at a later point in fetal development, the State's interest
in life has sufficient force so that the right of the woman to terminate the
pregnancy can be restricted.
That brings us, of course, to the point where much criticism has been
directed at Roe, a criticism that always inheres when the Court draws a
specific rule from what in the Constitution is but a general standard. We
conclude, however, that the urgent claims of the woman to retain the ultimate
control over her destiny and her body, claims implicit in the meaning of liberty,
require us to perform that function. Liberty must not be extinguished for want
of a line that is clear. And it falls to us to give some real substance to the
woman's liberty to determine whether to carry her pregnancy to full term. [505 U.S. 833, 870]
We conclude the line should be drawn at viability, so that, before that
time, the woman has a right to choose to terminate her pregnancy. We adhere to
this principle for two reasons. First, as we have said, is the doctrine of
stare decisis. Any judicial act of line-drawing may seem somewhat arbitrary,
but Roe was a reasoned statement, elaborated with great care. We have twice
reaffirmed it in the face of great opposition. See Thornburgh v. American
College of Obstetricians and Gynecologists, 476
U.S., at 759 ; Akron I, 462
U.S., at 419 -420. Although we must overrule those parts of Thornburgh and
Akron I which, in our view, are inconsistent with Roe's statement that the
State has a legitimate interest in promoting the life or potential life of the
unborn, see infra, at 40-41, the central premise of those cases represents an
unbroken commitment by this Court to the essential holding of Roe. It is that
premise which we reaffirm today.
The second reason is that the concept of viability, as we noted in Roe, is
the time at which there is a realistic possibility of maintaining and
nourishing a life outside the womb, so that the independent existence of the
second life can, in reason and all fairness, be the object of state protection
that now overrides the rights of the woman. See Roe v. Wade, 410
U.S., at 163 . Consistent with other constitutional norms, legislatures may
draw lines which appear arbitrary without the necessity of offering a
justification. But courts may not. We must justify the lines we draw. And there
is no line other than viability which is more workable. To be sure, as we have
said, there may be some medical developments that affect the precise point of
viability, see supra, at 17-18, but this is an imprecision within tolerable
limits, given that the medical community and all those who must apply its
discoveries will continue to explore the matter. The viability line also has,
as a practical matter, an element of fairness. In some broad sense, it might be
said that a woman who fails to act before viability has consented to the
State's intervention on behalf of the developing child. [505 U.S. 833, 871]
The woman's right to terminate her pregnancy before viability is the most
central principle of Roe v. Wade. It is a rule of law and a component of
liberty we cannot renounce.
On the other side of the equation is the interest of the State in the
protection of potential life. The Roe Court recognized the State's "important
and legitimate interest in protecting the potentiality of human life."
Roe, supra, at 162. The weight to be given this state interest, not the
strength of the woman's interest, was the difficult question faced in Roe. We
do not need to say whether each of us, had we been Members of the Court when
the valuation of the state interest came before it as an original matter, would
have concluded, as the Roe Court did, that its weight is insufficient to
justify a ban on abortions prior to viability even when it is subject to
certain exceptions. The matter is not before us in the first instance, and,
coming as it does after nearly 20 years of litigation in Roe's wake we are
satisfied that the immediate question is not the soundness of Roe's resolution
of the issue, but the precedential force that must be accorded to its holding.
And we have concluded that the essential holding of Roe should be reaffirmed.
Yet it must be remembered that Roe v. Wade speaks with clarity in
establishing not only the woman's liberty but also the State's "important
and legitimate interest in potential life." Roe, supra, at 163. That
portion of the decision in Roe has been given too little acknowledgment and
implementation by the Court in its subsequent cases. Those cases decided that
any regulation touching upon the abortion decision must survive strict
scrutiny, to be sustained only if drawn in narrow terms to further a compelling
state interest. See, e.g., Akron I, supra, at 427. Not all of the cases decided
under that formulation can be reconciled with the holding in Roe itself that
the State has legitimate interests in the health of the woman and in protecting
the potential life within her. In resolving this tension, we choose to rely
upon Roe, as against the later cases. [505
U.S. 833, 872]
Roe established a trimester framework to govern abortion regulations. Under
this elaborate but rigid construct, almost no regulation at all is permitted
during the first trimester of pregnancy; regulations designed to protect the
woman's health, but not to further the State's interest in potential life, are
permitted during the second trimester; and, during the third trimester, when
the fetus is viable, prohibitions are permitted provided the life or health of
the mother is not at stake. Roe, supra, at 163-166. Most of our cases since Roe
have involved the application of rules derived from the trimester framework.
See, e.g., Thornburgh v. American College of Obstetricians and Gynecologists,
supra; Akron I, supra.
The trimester framework no doubt was erected to ensure that the woman's
right to choose not become so subordinate to the State's interest in promoting
fetal life that her choice exists in theory, but not in fact. We do not agree,
however, that the trimester approach is necessary to accomplish this objective.
A framework of this rigidity was unnecessary, and, in its later interpretation,
sometimes contradicted the State's permissible exercise of its powers.
Though the woman has a right to choose to terminate or continue her
pregnancy before viability, it does not at all follow that the State is
prohibited from taking steps to ensure that this choice is thoughtful and
informed. Even in the earliest stages of pregnancy, the State may enact rules
and regulations designed to encourage her to know that there are philosophic
and social arguments of great weight that can be brought to bear in favor of
continuing the pregnancy to full term, and that there are procedures and
institutions to allow adoption of unwanted children as well as a certain degree
of state assistance if the mother chooses to raise the child herself.
"[T]he Constitution does not forbid a State or city, pursuant to
democratic processes, from expressing a preference for normal childbirth."
Webster v. Reproductive Health Services, 492
U.S., at 511 (opinion of [505
U.S. 833, 873] the Court) (quoting Poelker v. Doe, 432
U.S. 519, 521 (1977)). It follows that States are free to enact laws to
provide a reasonable framework for a woman to make a decision that has such
profound and lasting meaning. This, too, we find consistent with Roe's central
premises, and indeed the inevitable consequence of our holding that the State
has an interest in protecting the life of the unborn.
We reject the trimester framework, which we do not consider to be part of
the essential holding of Roe. See Webster v. Reproductive Health Services,
supra, at 518 (opinion of REHNQUIST, C.J.); id., at 529 (O'CONNOR, J.,
concurring in part and concurring in judgment) (describing the trimester
framework as "problematic"). Measures aimed at ensuring that a
woman's choice contemplates the consequences for the fetus do not necessarily
interfere with the right recognized in Roe, although those measures have been
found to be inconsistent with the rigid trimester framework announced in that
case. A logical reading of the central holding in Roe itself, and a necessary
reconciliation of the liberty of the woman and the interest of the State in
promoting prenatal life, require, in our view, that we abandon the trimester
framework as a rigid prohibition on all pre-viability regulation aimed at the
protection of fetal life. The trimester framework suffers from these basic
flaws: in its formulation, it misconceives the nature of the pregnant woman's
interest; and in practice, it undervalues the State's interest in potential
life, as recognized in Roe.
As our jurisprudence relating to all liberties save perhaps abortion has
recognized, not every law which makes a right more difficult to exercise is,
ipso facto, an infringement of that right. An example clarifies the point. We
have held that not every ballot access limitation amounts to an infringement of
the right to vote. Rather, the States are granted substantial flexibility in
establishing the framework within which voters choose the candidates for whom
they [505 U.S. 833, 874] wish
to vote. Anderson v. Celebrezze, 460
U.S. 780, 788 (1983); Norman v. Reed, 502
U.S. 279 (1992).
The abortion right is similar. Numerous forms of state regulation might have
the incidental effect of increasing the cost or decreasing the availability of
medical care, whether for abortion or any other medical procedure. The fact
that a law which serves a valid purpose, one not designed to strike at the
right itself, has the incidental effect of making it more difficult or more expensive
to procure an abortion cannot be enough to invalidate it. Only where state
regulation imposes an undue burden on a woman's ability to make this decision
does the power of the State reach into the heart of the liberty protected by
the Due Process Clause. See Hodgson v. Minnesota, 497
U.S. 417, 458 -459 (1990) (O'CONNOR, J., concurring in part and concurring
in judgment in part); Ohio v. Akron Center for Reproductive Health, 497
U.S. 502, 519 -520; (1990) (Akron II) (opinion of KENNEDY, J.); Webster v.
Reproductive Health Services, supra, at 530 (O'CONNOR, J., concurring in part
and concurring in judgment); Thornburgh v. American College of Obstetricians
and Gynecologists, 476
U.S., at 828 (O'CONNOR, J., dissenting); Simopoulos v. Virginia, 462
U.S. 506, 520 (1983) (O'CONNOR, J., concurring in part and concurring in
judgment); Planned Parenthood Assn. of Kansas City Mo., Inc. v. Ashcroft, 462
U.S. 476, 505 (1983) (O'CONNOR, J., concurring in judgment in part and
dissenting in part); Akron I, 462
U.S., at 464 (O'CONNOR, J., joined by WHITE and REHNQUIST, JJ.,
dissenting); Bellotti v. Baird, 428
U.S. 132, 147 (1976) (Bellotti I).
For the most part, the Court's early abortion cases adhered to this view. In
Maher v. Roe, 432
U.S. 464, 473 -474 (1977), the Court explained: Roe did not declare an
unqualified "constitutional right to an abortion," as the District
Court seemed to think. Rather, the right protects the woman from unduly
burdensome interference with her freedom to decide whether to terminate her
pregnancy. See [505 U.S. 833, 875]
also Doe v. Bolton, 410
U.S. 179, 198 (1973) ("[T]he interposition of the hospital abortion
committee is unduly restrictive of the patient's rights"); Bellotti I,
supra, 428
U.S., at 147 (State may not "impose undue burdens upon a minor capable
of giving an informed consent"); Harris v. McRae, 448
U.S. 297, 314 (1980) (citing Maher, supra,). Cf. Carey v. Population
Services International, 431
U.S., at 688 ("[T]he same test must be applied to state regulations
that burden an individual's right to decide to prevent conception or terminate
pregnancy by substantially limiting access to the means of effectuating that
decision as is applied to state statutes that prohibit the decision
entirely").
These considerations of the nature of the abortion right illustrate that it
is an overstatement to describe it as a right to decide whether to have an
abortion "without interference from the State." Planned Parenthood of
Central Mo. v. Danforth, 428
U.S. 52, 61 (1976). All abortion regulations interfere to some degree with
a woman's ability to decide whether to terminate her pregnancy. It is, as a
consequence, not surprising that, despite the protestations contained in the
original Roe opinion to the effect that the Court was not recognizing an
absolute right, 410
U.S., at 154 -155, the Court's experience applying the trimester framework
has led to the striking down of some abortion regulations which in no real
sense deprived women of the ultimate decision. Those decisions went too far,
because the right recognized by Roe is a right to be free from unwarranted
governmental intrusion into matters so fundamentally affecting a person as the
decision whether to bear or beget a child. Eisenstadt v. Baird, 405
U.S., at 453 . Not all governmental intrusion is, of necessity,
unwarranted, and that brings us to the other basic flaw in the trimester framework:
even in Roe's terms, in practice, it undervalues the State's interest in the
potential life within the woman.
Roe v. Wade was express in its recognition of the State's important and
legitimate interest[s] in preserving and protecting [505 U.S. 833, 876] the health of the
pregnant woman [and] in protecting the potentiality of human life. 410
U.S., at 162 . The trimester framework, however, does not fulfill Roe's own
promise that the State has an interest in protecting fetal life or potential
life. Roe began the contradiction by using the trimester framework to forbid
any regulation of abortion designed to advance that interest before viability.
Id., at 163. Before viability, Roe and subsequent cases treat all governmental
attempts to influence a woman's decision on behalf of the potential life within
her as unwarranted. This treatment is, in our judgment, incompatible with the
recognition that there is a substantial state interest in potential life
throughout pregnancy. Cf. Webster, 492
U.S., at 519 (opinion of REHNQUIST, C.J.); Akron I, supra, 462
U.S., at 461 (O'CONNOR, J., dissenting).
The very notion that the State has a substantial interest in potential life
leads to the conclusion that not all regulations must be deemed unwarranted.
Not all burdens on the right to decide whether to terminate a pregnancy will be
undue. In our view, the undue burden standard is the appropriate means of
reconciling the State's interest with the woman's constitutionally protected
liberty.
The concept of an undue burden has been utilized by the Court as well as
individual Members of the Court, including two of us, in ways that could be
considered inconsistent. See, e.g., Hodgson v. Minnesota, supra, 459-461
(O'CONNOR, J., concurring in part and concurring in judgment); Akron II, supra
at 519-520 (opinion of KENNEDY, J.); Thornburgh v. American College of
Obstetricians and Gynecologists, supra at 828-829 (O'CONNOR, J., dissenting);
Akron I, supra, 462
U.S., at 461 -466 (O'CONNOR, J., dissenting); Harris v. McRae, supra, 448
U.S., at 314 ; Maher v. Roe, supra, 432
U.S., at 473 ; Beal v. Doe, 432
U.S. 438, 446 (1977); Bellotti I, supra, 428
U.S., at 147 . Because we set forth a standard of general application to
which we intend to adhere, it is important to clarify what is meant by an undue
burden. [505 U.S. 833, 877]
A finding of an undue burden is a shorthand for the conclusion that a state
regulation has the purpose or effect of placing a substantial obstacle in the
path of a woman seeking an abortion of a nonviable fetus. A statute with this
purpose is invalid because the means chosen by the State to further the
interest in potential life must be calculated to inform the woman's free
choice, not hinder it. And a statute which, while furthering the interest in
potential life or some other valid state interest, has the effect of placing a
substantial obstacle in the path of a woman's choice cannot be considered a
permissible means of serving its legitimate ends. To the extent that the
opinions of the Court or of individual Justices use the undue burden standard
in a manner that is inconsistent with this analysis, we set out what, in our
view, should be the controlling standard. Cf. McCleskey v. Zant, 499
U.S. 467, 489 (1991) (attempting "to define the doctrine of abuse of
the writ with more precision" after acknowledging tension among earlier
cases). In our considered judgment, an undue burden is an unconstitutional
burden. See Akron II, 497
U.S., at 519 -520 (opinion of KENNEDY, J.). Understood another way, we
answer the question, left open in previous opinions discussing the undue burden
formulation, whether a law designed to further the State's interest in fetal
life which imposes an undue burden on the woman's decision before fetal
viability could be constitutional. See, e.g., Akron I, 462 U.S. at 462-463
(O'CONNOR, J., dissenting). The answer is no.
Some guiding principles should emerge. What is at stake is the woman's right
to make the ultimate decision, not a right to be insulated from all others in
doing so. Regulations which do no more than create a structural mechanism by
which the State, or the parent or guardian of a minor, may express profound
respect for the life of the unborn are permitted, if they are not a substantial
obstacle to the woman's exercise of the right to choose. See infra, at 899-900
(addressing Pennsylvania's parental consent requirement). [505 U.S. 833, 878] Unless
it has that effect on her right of choice, a state measure designed to persuade
her to choose childbirth over abortion will be upheld if reasonably related to
that goal. Regulations designed to foster the health of a woman seeking an
abortion are valid if they do not constitute an undue burden.
Even when jurists reason from shared premises, some disagreement is
inevitable. Compare Hodgson, 497
U.S., at 482 -497 (KENNEDY, J., concurring in judgment in part and
dissenting in part) with id., at 458-460 (O'CONNOR, J., concurring in part and
concurring in judgment in part). That is to be expected in the application of
any legal standard which must accommodate life's complexity. We do not expect
it to be otherwise with respect to the undue burden standard. We give this
summary:
(a) To protect the central right recognized by Roe v. Wade while at the same
time accommodating the State's profound interest in potential life, we will
employ the undue burden analysis as explained in this opinion. An 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.
(b) We reject the rigid trimester framework of Roe v. Wade. To promote the
State's profound interest in potential life, throughout pregnancy, the State
may take measures to ensure that the woman's choice is informed, and measures
designed to advance this interest will not be invalidated as long as their
purpose is to persuade the woman to choose childbirth over abortion. These
measures must not be an undue burden on the right.
(c) As with any medical procedure, the State may enact regulations to
further the health or safety of a woman seeking an abortion. Unnecessary health
regulations that have the purpose or effect of presenting a substantial
obstacle to a woman seeking an abortion impose an undue burden on the right. [505 U.S. 833, 879]
(d) Our adoption of the undue burden analysis does not disturb the central
holding of Roe v. Wade, and we reaffirm that holding. Regardless of whether
exceptions are made for particular circumstances, a State may not prohibit any
woman from making the ultimate decision to terminate her pregnancy before
viability.
(e) We also reaffirm Roe's holding that, subsequent to viability, the State,
in promoting its interest in the potentiality of human life, may, if it chooses,
regulate, and even proscribe, abortion except where it is necessary, in
appropriate medical judgment, for the preservation of the life or health of the
mother. Roe v. Wade, 410
U.S., at 164 -165.
These principles control our assessment of the Pennsylvania statute, and we
now turn to the issue of the validity of its challenged provisions.
The Court of Appeals applied what it believed to be the undue burden
standard, and upheld each of the provisions except for the husband notification
requirement. We agree generally with this conclusion, but refine the undue
burden analysis in accordance with the principles articulated above. We now
consider the separate statutory sections at issue.
Because it is central to the operation of various other requirements, we
begin with the statute's definition of medical emergency. Under the statute, a
medical emergency is
[t]hat condition which, on the basis of the physician's good faith clinical
judgment, so complicates the medical condition of a pregnant woman as to
necessitate the immediate abortion of her pregnancy to avert her death or for
which a delay will create serious risk of substantial and irreversible
impairment of a major bodily function. 18 Pa.Cons.Stat. 3203 (1990). [505 U.S. 833, 880]
Petitioners argue that the definition is too narrow, contending that it
forecloses the possibility of an immediate abortion despite some significant
health risks. If the contention were correct, we would be required to
invalidate the restrictive operation of the provision, for the essential
holding of Roe forbids a State from interfering with a woman's choice to
undergo an abortion procedure if continuing her pregnancy would constitute a
threat to her health. 410
U.S., at 164 . See also Harris v. McRae, 448
U.S., at 316 .
The District Court found that there were three serious conditions which
would not be covered by the statute: preeclampsia, inevitable abortion, and
premature ruptured membrane. 744 F.Supp., at 1378. Yet, as the Court of Appeals
observed, 947 F.2d, at 700-701, it is undisputed that, under some
circumstances, each of these conditions could lead to an illness with substantial
and irreversible consequences. While the definition could be interpreted in an
unconstitutional manner, the Court of Appeals construed the phrase
"serious risk" to include those circumstances. Id., at 701. It
stated: "[W]e read the medical emergency exception as intended by the
Pennsylvania legislature to assure that compliance with its abortion
regulations would not in any way pose a significant threat to the life or
health of a woman." Ibid. As we said in Brockett v. Spokane Arcades, Inc.,
472
U.S. 491, 499 -500 (1985): "Normally, . . . we defer to the
construction of a state statute given it by the lower federal courts."
Indeed, we have said that we will defer to lower court interpretations of state
law unless they amount to "plain" error. Palmer v. Hoffman, 318
U.S. 109, 118 (1943). This "reflect[s] our belief that district courts
and courts of appeals are better schooled in, and more able to interpret, the
laws of their respective States." Frisby v. Schultz, 487
U.S. 474, 482 (1988) (citation omitted). We adhere to that course today,
and conclude that, as construed by the Court of Appeals, the medical emergency
definition imposes no undue burden on a woman's abortion right.
We next consider the informed consent requirement. 18 Pa. Cons.Stat. 3205
(1990). Except in a medical emergency, the statute requires that at least 24
hours before performing an abortion a physician inform the woman of the nature
of the procedure, the health risks of the abortion and of childbirth, and the
"probable gestational age of the unborn child." The physician or a
qualified nonphysician must inform the woman of the availability of printed
materials published by the State describing the fetus and providing information
about medical assistance for childbirth, information about child support from
the father, and a list of agencies which provide adoption and other services as
alternatives to abortion. An abortion may not be performed unless the woman
certifies in writing that she has been informed of the availability of these
printed materials and has been provided them if she chooses to view them.
Our prior decisions establish that, as with any medical procedure, the State
may require a woman to give her written informed consent to an abortion. See
Planned Parenthood of Central Mo. v. Danforth, 428
U.S., at 67 . In this respect, the statute is unexceptional. Petitioners
challenge the statute's definition of informed consent because it includes the
provision of specific information by the doctor and the mandatory 24-hour
waiting period. The conclusions reached by a majority of the Justices in the
separate opinions filed today and the undue burden standard adopted in this
opinion require us to overrule in part some of the Court's past decisions,
decisions driven by the trimester framework's prohibition of all pre-viability
regulations designed to further the State's interest in fetal life.
In Akron I, 462
U.S. 416 , we invalidated an ordinance which required that a woman seeking an
abortion be provided by her physician with specific information "designed
to influence the woman's informed choice between abortion or childbirth."
Id., at 444. As we later described [505
U.S. 833, 882] the Akron I holding in Thornburgh v. American College
of Obstetricians and Gynecologists, 476
U.S., at 762 , there were two purported flaws in the Akron ordinance: the
information was designed to dissuade the woman from having an abortion, and the
ordinance imposed "a rigid requirement that a specific body of information
be given in all cases, irrespective of the particular needs of the patient. . .
." Ibid.
To the extent Akron I and Thornburgh find a constitutional violation when
the government requires, as it does here, the giving of truthful, nonmisleading
information about the nature of the procedure, the attendant health risks and
those of childbirth, and the "probable gestational age" of the fetus,
those cases go too far, are inconsistent with Roe's acknowledgment of an
important interest in potential life, and are overruled. This is clear even on
the very terms of Akron I and Thornburgh. Those decisions, along with Danforth,
recognize a substantial government interest justifying a requirement that a
woman be apprised of the health risks of abortion and childbirth. E.g.,
Danforth, supra, at 66-67. It cannot be questioned that psychological wellbeing
is a facet of health. Nor can it be doubted that most women considering an
abortion would deem the impact on the fetus relevant, if not dispositive, to
the decision. In attempting to ensure that a woman apprehend the full
consequences of her decision, the State furthers the legitimate purpose of
reducing the risk that a woman may elect an abortion, only to discover later,
with devastating psychological consequences, that her decision was not fully
informed. If the information the State requires to be made available to the
woman is truthful and not misleading, the requirement may be permissible.
We also see no reason why the State may not require doctors to inform a
woman seeking an abortion of the availability of materials relating to the
consequences to the fetus, even when those consequences have no direct relation
to her health. An example illustrates the point. We would think [505 U.S. 833, 883] it
constitutional for the State to require that, in order for there to be informed
consent to a kidney transplant operation, the recipient must be supplied with
information about risks to the donor as well as risks to himself or herself. A
requirement that the physician make available information similar to that
mandated by the statute here was described in Thornburgh as an outright attempt
to wedge the Commonwealth's message discouraging abortion into the privacy of
the informed consent dialogue between the woman and her physician. 476
U.S., at 762 . We conclude, however, that informed choice need not be
defined in such narrow terms that all considerations of the effect on the fetus
are made irrelevant. As we have made clear, we depart from the holdings of
Akron I and Thornburgh to the extent that we permit a State to further its
legitimate goal of protecting the life of the unborn by enacting legislation
aimed at ensuring a decision that is mature and informed, even when, in so
doing, the State expresses a preference for childbirth over abortion. In short,
requiring that the woman be informed of the availability of information
relating to fetal development and the assistance available should she decide to
carry the pregnancy to full term is a reasonable measure to ensure an informed
choice, one which might cause the woman to choose childbirth over abortion.
This requirement cannot be considered a substantial obstacle to obtaining an
abortion, and, it follows, there is no undue burden.
Our prior cases also suggest that the "straitjacket," Thornburgh,
supra, at 762 (quoting Danforth, supra, at 67, n. 8), of particular information
which must be given in each case interferes with a constitutional right of
privacy between a pregnant woman and her physician. As a preliminary matter, it
is worth noting that the statute now before us does not require a physician to
comply with the informed consent provisions if he or she can demonstrate by a
preponderance of the evidence that he or she reasonably believed that
furnishing the information would have resulted in a severely [505 U.S. 833, 884] adverse
effect on the physical or mental health of the patient. 18 Pa. Cons.Stat. 3205
(1990). In this respect, the statute does not prevent the physician from
exercising his or her medical judgment.
Whatever constitutional status the doctor-patient relation may have as a
general matter, in the present context, it is derivative of the woman's
position. The doctor-patient relation does not underlie or override the two
more general rights under which the abortion right is justified: the right to
make family decisions and the right to physical autonomy. On its own, the
doctor-patient relation here is entitled to the same solicitude it receives in
other contexts. Thus, a requirement that a doctor give a woman certain information
as part of obtaining her consent to an abortion is, for constitutional
purposes, no different from a requirement that a doctor give certain specific
information about any medical procedure.
All that is left of petitioners' argument is an asserted First Amendment
right of a physician not to provide information about the risks of abortion,
and childbirth, in a manner mandated by the State. To be sure, the physician's
First Amendment rights not to speak are implicated, see Wooley v. Maynard, 430
U.S. 705 (1977), but only as part of the practice of medicine, subject to
reasonable licensing and regulation by the State cf. Whalen v. Roe, 429
U.S. 589, 603 (1977). We see no constitutional infirmity in the requirement
that the physician provide the information mandated by the State here.
The Pennsylvania statute also requires us to reconsider the holding in Akron
I that the State may not require that a physician, as opposed to a qualified
assistant, provide information relevant to a woman's informed consent. 462
U.S., at 448 . Since there is no evidence on this record that requiring a
doctor to give the information as provided by the statute would amount, in
practical terms, to a substantial obstacle to a woman seeking an abortion, we
conclude that it is not [505 U.S.
833, 885] an undue burden. Our cases reflect the fact that the
Constitution gives the States broad latitude to decide that particular
functions may be performed only by licensed professionals, even if an objective
assessment might suggest that those same tasks could be performed by others.
See Williamson v. Lee Optical of Okla., Inc., 348
U.S. 483 (1955). Thus, we uphold the provision as a reasonable means to
ensure that the woman's consent is informed.
Our analysis of Pennsylvania's 24-hour waiting period between the provision
of the information deemed necessary to informed consent and the performance of
an abortion under the undue burden standard requires us to reconsider the
premise behind the decision in Akron I invalidating a parallel requirement. In
Akron I we said: Nor are we convinced that the State's legitimate concern that
the woman's decision be informed is reasonably served by requiring a 24-hour
delay as a matter of course. 462
U.S., at 450 . We consider that conclusion to be wrong. The idea that
important decisions will be more informed and deliberate if they follow some
period of reflection does not strike us as unreasonable, particularly where the
statute directs that important information become part of the background of the
decision. 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.
Whether the mandatory 24-hour waiting period is nonetheless invalid because,
in practice, it is a substantial obstacle to a woman's choice to terminate her
pregnancy is a closer question. The findings of fact by the District Court
indicate that, because of the distances many women must travel to reach an
abortion provider, the practical effect will often be [505 U.S. 833, 886] a delay of much more
than a day because the waiting period requires that a woman seeking an abortion
make at least two visits to the doctor. The District Court also found that, in
many instances, this will increase the exposure of women seeking abortions to
"the harassment and hostility of anti-abortion protestors demonstrating
outside a clinic." 744 F.Supp., at 1351. As a result, the District Court
found that, for those women who have the fewest financial resources, those who
must travel long distances, and those who have difficulty explaining their
whereabouts to husbands, employers, or others, the 24-hour waiting period will
be "particularly burdensome." Id., at 1352.
These findings are troubling in some respects, but they do not demonstrate
that the waiting period constitutes an undue burden. We do not doubt that, as
the District Court held, the waiting period has the effect of "increasing
the cost and risk of delay of abortions," id., at 1378, but the District
Court did not conclude that the increased costs and potential delays amount to
substantial obstacles. Rather, applying the trimester framework's strict
prohibition of all regulation designed to promote the State's interest in
potential life before viability, see id., at 1374, the District Court concluded
that the waiting period does not further the state "interest in maternal
health" and "infringes the physician's discretion to exercise sound
medical judgment," id., at 1378. Yet, as we have stated, under the undue
burden standard, a State is permitted to enact persuasive measures which favor
childbirth over abortion, even if those measures do not further a health
interest. And while the waiting period does limit a physician's discretion,
that is not, standing alone, a reason to invalidate it. In light of the
construction given the statute's definition of medical emergency by the Court
of Appeals, and the District Court's findings, we cannot say that the waiting
period imposes a real health risk.
We also disagree with the District Court's conclusion that the
"particularly burdensome" effects of the waiting period [505 U.S. 833, 887] on
some women require its invalidation. A particular burden is not, of necessity,
a substantial obstacle. Whether a burden falls on a particular group is a
distinct inquiry from whether it is a substantial obstacle even as to the women
in that group. And the District Court did not conclude that the waiting period
is such an obstacle even for the women who are most burdened by it. Hence, on
the record before us, and in the context of this facial challenge, we are not
convinced that the 24-hour waiting period constitutes an undue burden.
We are left with the argument that the various aspects of the informed
consent requirement are unconstitutional because they place barriers in the way
of abortion on demand. Even the broadest reading of Roe, however, has not
suggested that there is a constitutional right to abortion on demand. See,
e.g., Doe v. Bolton, 410
U.S., at 189 . Rather, the right protected by Roe is a right to decide to
terminate a pregnancy free of undue interference by the State. Because the
informed consent requirement facilitates the wise exercise of that right, it
cannot be classified as an interference with the right Roe protects. The
informed consent requirement is not an undue burden on that right.
Section 3209 of Pennsylvania's abortion law provides, except in cases of
medical emergency, that no physician shall perform an abortion on a married
woman without receiving a signed statement from the woman that she has notified
her spouse that she is about to undergo an abortion. The woman has the option
of providing an alternative signed statement certifying that her husband is not
the man who impregnated her; that her husband could not be located; that the
pregnancy is the result of spousal sexual assault which she has reported; or
that the woman believes that notifying her husband will cause him or someone
else to inflict bodily injury upon her. A physician who performs an abortion on
[505 U.S. 833, 888] a
married woman without receiving the appropriate signed statement will have his
or her license revoked, and is liable to the husband for damages.
The District Court heard the testimony of numerous expert witnesses, and
made detailed findings of fact regarding the effect of this statute. These
included:
"273. The vast majority of
women consult their husbands prior to deciding to terminate their pregnancy. .
. .
. . . . .
"279. The "bodily
injury" exception could not be invoked by a married woman whose husband,
if notified, would, in her reasonable belief, threaten to (a) publicize her
intent to have an abortion to family, friends or acquaintances; (b) retaliate
against her in future child custody or divorce proceedings; (c) inflict
psychological intimidation or emotional harm upon her, her children or other
persons; (d) inflict bodily harm on other persons such as children, family
members or other loved ones; or (e) use his control over finances to deprive of
necessary monies for herself or her children. . . .
. . . . .
"281. Studies reveal that
family violence occurs in two million families in the United States. This
figure, however, is a conservative one that substantially understates (because
battering is usually not reported until it reaches life-threatening
proportions) the actual number of families affected by domestic violence. In
fact, researchers estimate that one of every two women will be battered at some
time in their life. . . .
"282. A wife may not elect to
notify her husband of her intention to have an abortion for a variety of
reasons, including the husband's illness, concern about her own health, the
imminent failure of the marriage, or the husband's absolute opposition to the
abortion. . . .
"283. The required filing of
the spousal consent form would require plaintiff-clinics to change their
counseling [505 U.S. 833, 889]
procedures and force women to reveal their most intimate
decisionmaking on pain of criminal sanctions. The confidentiality of these
revelations could not be guaranteed, since the woman's records are not immune
from subpoena. . . .
"284. Women of all class
levels, educational backgrounds, and racial, ethnic and religious groups are
battered. . . .
"285. Wife-battering or abuse
can take on many physical and psychological forms. The nature and scope of the
battering can cover a broad range of actions, and be gruesome and torturous. .
. .
"286. Married women, victims
of battering, have been killed in Pennsylvania and throughout the United
States. . . .
"287. Battering can often
involve a substantial amount of sexual abuse, including marital rape and sexual
mutilation. . . .
"288. In a domestic abuse
situation, it is common for the battering husband to also abuse the children in
an attempt to coerce the wife. . . .
"289. Mere notification of
pregnancy is frequently a flashpoint for battering and violence within the
family. The number of battering incidents is high during the pregnancy, and
often the worst abuse can be associated with pregnancy. . . . The battering
husband may deny parentage and use the pregnancy as an excuse for abuse. . . .
"290. Secrecy typically
shrouds abusive families. Family members are instructed not to tell anyone,
especially police or doctors, about the abuse and violence. Battering husbands
often threaten their wives or her children with further abuse if she tells an
outsider of the violence, and tells her that nobody will believe her. A
battered woman, therefore, is highly unlikely to disclose [505 U.S. 833, 890] the
violence against her for fear of retaliation by the abuser. . . .
"291. Even when confronted
directly by medical personnel or other helping professionals, battered women
often will not admit to the battering, because they have not admitted to
themselves that they are battered. . . .
. . . . .
"294. A woman in a shelter or
a safe house unknown to her husband is not "reasonably likely" to
have bodily harm inflicted upon her by her batterer; however, her attempt to
notify her husband pursuant to section 3209 could accidentally disclose her
whereabouts to her husband. Her fear of future ramifications would be realistic
under the circumstances.
"295. Marital rape is rarely
discussed with others or reported to law enforcement authorities, and of those
reported, only few are prosecuted. . . .
"296. It is common for
battered women to have sexual intercourse with their husbands to avoid being
battered. While this type of coercive sexual activity would be spousal sexual
assault as defined by the Act, many women may not consider it to be so, and
others would fear disbelief. . . .
"297. The marital rape
exception to section 3209 cannot be claimed by women who are victims of
coercive sexual behavior other than penetration. The 90-day reporting
requirement of the spousal sexual assault statute, 18 Pa.Con.Stat.Ann. 3218(c),
further narrows the class of sexually abused wives who can claim the exception,
since many of these women may be psychologically unable to discuss or report
the rape for several years after the incident. . . .
"298. Because of the nature of
the battering relationship, battered women are unlikely to avail themselves of
the exceptions to section 3209 of the Act, regardless of [505 U.S. 833, 891] whether
the section applies to them. 744 F.Supp., at 1360-1362 (footnote omitted).
These findings are supported by studies of domestic
violence. The American Medical Association (AMA) has published a summary of the
recent research in this field, which indicates that, in an average 12-month
period in this country, approximately two million women are the victims of
severe assaults by their male partners. In a 1985 survey, women reported that
nearly one of every eight husbands had assaulted their wives during the past
year. The AMA views these figures as "marked underestimates," because
the nature of these incidents discourages women from reporting them, and
because surveys typically exclude the very poor, those who do not speak English
well, and women who are homeless or in institutions or hospitals when the
survey is conducted. According to the AMA, [r]esearchers on family violence
agree that the true incidence of partner violence is probably double the above
estimates; or four million severely assaulted women per year. Studies suggest
that from one-fifth to one-third of all women will be physically assaulted by a
partner or ex-partner during their lifetime. AMA Council on Scientific Affairs,
Violence Against Women 7 (1991) (emphasis in original). Thus, on an average day
in the United States, nearly 11,000 women are severely assaulted by their male
partners. Many of these incidents involve sexual assault. Id., at 3-4; Shields
& Hanneke, Battered Wives' Reactions to Marital Rape, in The Dark Side of
Families: Current Family Violence Research 131, 144 (D. Finkelhor, R. Gelles, G.
Hataling, & M. Straus eds. 1983). In families where wifebeating takes
place, moreover, child abuse is often present as well. Violence Against Women,
supra, at 12.
Other studies fill in the rest of this troubling picture. Physical violence
is only the most visible form of abuse. Psychological abuse, particularly
forced social and economic isolation of women, is also common. L. Walker, The
Battered [505 U.S. 833, 892]
Woman Syndrome 27-28 (1984). Many victims of domestic violence
remain with their abusers, perhaps because they perceive no superior
alternative. Herbert, Silver, & Ellard, Coping with an Abusive
Relationship: I. How and Why do Women Stay?, 53 J. Marriage & the Family
311 (1991). Many abused women who find temporary refuge in shelters return to
their husbands, in large part because they have no other source of income.
Aguirre, Why Do They Return? Abused Wives in Shelters, 30 J.Nat.Assn. of Social
Workers 350, 352 (1985). Returning to one's abuser can be dangerous. Recent
Federal Bureau of Investigation statistics disclose that 8.8 percent of all
homicide victims in the United States are killed by their spouses. Mercy &
Saltzman, Fatal Violence Among Spouses in the United States, 1976-85, 79 Am.J.
Public Health 595 (1989). Thirty percent of female homicide victims are killed
by their male partners. Domestic Violence: Terrorism in the Home, Hearing
before the Subcommittee on Children, Family, Drugs and Alcoholism of the Senate
Committee on Labor and Human Resources, 101st Cong., 2d Sess., 3 (1990).
The limited research that has been conducted with respect to notifying one's
husband about an abortion, although involving samples too small to be
representative, also supports the District Court's findings of fact. The vast
majority of women notify their male partners of their decision to obtain an
abortion. In many cases in which married women do not notify their husbands,
the pregnancy is the result of an extramarital affair. Where the husband is the
father, the primary reason women do not notify their husbands is that the
husband and wife are experiencing marital difficulties, often accompanied by
incidents of violence. Ryan & Plutzer, When Married Women Have Abortions:
Spousal Notification and Marital Interaction, 51 J. Marriage & the Family
41, 44 (1989).
This information and the District Court's findings reinforce what common
sense would suggest. In well-functioning [505 U.S. 833, 893] marriages, spouses discuss
important intimate decisions such as whether to bear a child. But there are
millions of women in this country who are the victims of regular physical and
psychological abuse at the hands of their husbands. Should these women become
pregnant, they may have very good reasons for not wishing to inform their
husbands of their decision to obtain an abortion. Many may have justifiable
fears of physical abuse, but may be no less fearful of the consequences of
reporting prior abuse to the Commonwealth of Pennsylvania. Many may have a
reasonable fear that notifying their husbands will provoke further instances of
child abuse; these women are not exempt from 3209's notification requirement.
Many may fear devastating forms of psychological abuse from their husbands,
including verbal harassment, threats of future violence, the destruction of
possessions, physical confinement to the home, the withdrawal of financial
support, or the disclosure of the abortion to family and friends. These methods
of psychological abuse may act as even more of a deterrent to notification than
the possibility of physical violence, but women who are the victims of the
abuse are not exempt from 3209's notification requirement. And many women who
are pregnant as a result of sexual assaults by their husbands will be unable to
avail themselves of the exception for spousal sexual assault, 3209(b)(3),
because the exception requires that the woman have notified law enforcement
authorities within 90 days of the assault, and her husband will be notified of
her report once an investigation begins, 3128(c). If anything in this field is
certain, it is that victims of spousal sexual assault are extremely reluctant
to report the abuse to the government; hence, a great many spousal rape victims
will not be exempt from the notification requirement imposed by 3209.
The spousal notification requirement is thus likely to prevent a significant
number of women from obtaining an abortion. It does not merely make abortions a
little more difficult or expensive to obtain; for many women, it will impose [505 U.S. 833, 894] a
substantial obstacle. We must not blind ourselves to the fact that the
significant number of women who fear for their safety and the safety of their
children are likely to be deterred from procuring an abortion as surely as if
the Commonwealth had outlawed abortion in all cases.
Respondents attempt to avoid the conclusion that 3209 is invalid by pointing
out that it imposes almost no burden at all for the vast majority of women
seeking abortions. They begin by noting that only about 20 percent of the women
who obtain abortions are married. They then note that, of these women, about 95
percent notify their husbands of their own volition. Thus, respondents argue,
the effects of 3209 are felt by only one percent of the women who obtain
abortions. Respondents argue that, since some of these women will be able to
notify their husbands without adverse consequences or will qualify for one of
the exceptions, the statute affects fewer than one percent of women seeking
abortions. For this reason, it is asserted, the statute cannot be invalid on
its face. See Brief for Respondents 83-86. We disagree with respondents' basic
method of analysis.
The analysis does not end with the one percent of women upon whom the
statute operates; it begins there. Legislation is measured for consistency with
the Constitution by its impact on those whose conduct it affects. For example,
we would not say that a law which requires a newspaper to print a candidate's
reply to an unfavorable editorial is valid on its face because most newspapers
would adopt the policy even absent the law. See Miami Herald Publishing Co. v.
Tornillo, 418
U.S. 241 (1974). The proper focus of constitutional inquiry is the group
for whom the law is a restriction, not the group for whom the law is
irrelevant.
Respondents' argument itself gives implicit recognition to this principle at
one of its critical points. Respondents speak of the one percent of women
seeking abortions who are married and would choose not to notify their husbands
of their plans. By selecting as the controlling class women [505 U.S. 833, 895] who
wish to obtain abortions, rather than all women or all pregnant women,
respondents, in effect, concede that 3209 must be judged by reference to those
for whom it is an actual, rather than an irrelevant, restriction. Of course, as
we have said, 3209's real target is narrower even than the class of women
seeking abortions identified by the State: it is married women seeking
abortions who do not wish to notify their husbands of their intentions and who
do not qualify for one of the statutory exceptions to the notice requirement.
The unfortunate yet persisting conditions we document above will mean that, in
a large fraction of the cases in which 3209 is relevant, it will operate as a
substantial obstacle to a woman's choice to undergo an abortion. It is an undue
burden, and therefore invalid.
This conclusion is in no way inconsistent with our decisions upholding parental
notification or consent requirements. See, e.g., Akron II, 497
U.S., at 510 -519; Bellotti v. Baird, 443
U.S. 622 (1979) (Bellotti II); Planned Parenthood of Central Mo. v.
Danforth, 428
U.S., at 74 . Those enactments, and our judgment that they are
constitutional, are based on the quite reasonable assumption that minors will
benefit from consultation with their parents and that children will often not
realize that their parents have their best interests at heart. We cannot adopt
a parallel assumption about adult women.
We recognize that a husband has a deep and proper concern and interest . . .
in his wife's pregnancy and in the growth and development of the fetus she is
carrying. Danforth, supra, at 69. With regard to the children he has fathered
and raised, the Court has recognized his "cognizable and substantial"
interest in their custody. Stanley v. Illinois, 405
U.S. 645, 651 -652 (1972); see also Quilloin v. Walcott, 434
U.S. 246 (1978); Caban v. Mohammed, 441
U.S. 380 (1979); Lehr v. Robertson, 463
U.S. 248 (1983). If this case concerned a State's ability to require the
mother to notify the father before taking some action with respect to a living [505 U.S. 833, 896] child
raised by both, therefore, it would be reasonable to conclude, as a general
matter, that the father's interest in the welfare of the child and the mother's
interest are equal.
Before birth, however, the issue takes on a very different cast. It is an
inescapable biological fact that state regulation with respect to the child a
woman is carrying will have a far greater impact on the mother's liberty than
on the father's. The effect of state regulation on a woman's protected liberty
is doubly deserving of scrutiny in such a case, as the State has touched not
only upon the private sphere of the family, but upon the very bodily integrity
of the pregnant woman. Cf. Cruzan v. Director, Mo. Dept. of Health, 497
U.S., at 281 . The Court has held that, when the wife and the husband
disagree on this decision, the view of only one of the two marriage partners
can prevail. Inasmuch as it is the woman who physically bears the child and who
is the more directly and immediately affected by the pregnancy, as between the
two, the balance weighs in her favor. Danforth, supra, at 71. This conclusion
rests upon the basic nature of marriage and the nature of our Constitution:
[T]he marital couple is not an independent entity with a mind and heart of its
own, but an association of two individuals, each with a separate intellectual
and emotional makeup. If the right of privacy means anything, it is the right
of the individual, married or single, to be free from unwarranted governmental
intrusion into matters so fundamentally affecting a person as the decision
whether to bear or beget a child. Eisenstadt v. Baird, 405
U.S., at 453 (emphasis in original). The Constitution protects individuals,
men and women alike, from unjustified state interference, even when that
interference is enacted into law for the benefit of their spouses.
There was a time, not so long ago, when a different understanding of the
family and of the Constitution prevailed. In Bradwell v. State, 16 Wall. 130
(1873), three Members of this [505
U.S. 833, 897] Court reaffirmed the common law principle that a
woman had no legal existence separate from her husband, who was regarded as her
head and representative in the social state; and, notwithstanding some recent
modifications of this civil status, many of the special rules of law flowing
from and dependent upon this cardinal principle still exist in full force in
most States. Id., at 141 (Bradley, J., joined by Swayne and Field, JJ.,
concurring in judgment). Only one generation has passed since this Court
observed that "woman is still regarded as the center of home and family
life," with attendant "special responsibilities" that precluded
full and independent legal status under the Constitution. Hoyt v. Florida, 368
U.S. 57, 62 (1961). These views, of course, are no longer consistent with
our understanding of the family, the individual, or the Constitution.
In keeping with our rejection of the common law understanding of a woman's
role within the family, the Court held in Danforth that the Constitution does
not permit a State to require a married woman to obtain her husband's consent
before undergoing an abortion. 428
U.S., at 69 . The principles that guided the Court in Danforth should be
our guides today. For the great many women who are victims of abuse inflicted
by their husbands, or whose children are the victims of such abuse, a spousal
notice requirement enables the husband to wield an effective veto over his
wife's decision. Whether the prospect of notification itself deters such women
from seeking abortions, or whether the husband, through physical force or
psychological pressure or economic coercion, prevents his wife from obtaining
an abortion until it is too late, the notice requirement will often be
tantamount to the veto found unconstitutional in Danforth. The women most
affected by this law - those who most reasonably fear the consequences of
notifying their husbands that they are pregnant - are in the gravest danger. [505 U.S. 833, 898]
The husband's interest in the life of the child his wife is carrying does
not permit the State to empower him with this troubling degree of authority
over his wife. The contrary view leads to consequences reminiscent of the
common law. A husband has no enforceable right to require a wife to advise him
before she exercises her personal choices. If a husband's interest in the
potential life of the child outweighs a wife's liberty, the State could require
a married woman to notify her husband before she uses a post-fertilization
contraceptive. Perhaps next in line would be a statute requiring pregnant
married women to notify their husbands before engaging in conduct causing risks
to the fetus. After all, if the husband's interest in the fetus' safety is a
sufficient predicate for state regulation, the State could reasonably conclude
that pregnant wives should notify their husbands before drinking alcohol or
smoking. Perhaps married women should notify their husbands before using
contraceptives or before undergoing any type of surgery that may have
complications affecting the husband's interest in his wife's reproductive
organs. And if a husband's interest justifies notice in any of these cases, one
might reasonably argue that it justifies exactly what the Danforth Court held
it did not justify - a requirement of the husband's consent as well. A State
may not give to a man the kind of dominion over his wife that parents exercise
over their children.
Section 3209 embodies a view of marriage consonant with the common law
status of married women, but repugnant to our present understanding of marriage
and of the nature of the rights secured by the Constitution. Women do not lose
their constitutionally protected liberty when they marry. The Constitution
protects all individuals, male or female, married or unmarried, from the abuse
of governmental power, even where that power is employed for the supposed
benefit of a member of the individual's family. These considerations confirm
our conclusion that 3209 is invalid. [505
U.S. 833, 899]
We next consider the parental consent provision. Except in a medical
emergency, an unemancipated young woman under 18 may not obtain an abortion
unless she and one of her parents (or guardian) provides informed consent as
defined above. If neither a parent nor a guardian provides consent, a court may
authorize the performance of an abortion upon a determination that the young
woman is mature and capable of giving informed consent and has, in fact, given
her informed consent, or that an abortion would be in her best interests.
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. See, e.g., Akron II, 497
U.S., at 510 -519; Hodgson, 497
U.S., at 461 (O'Connor, J., concurring in part and concurring in judgment
in part); id., at 497-501 (Kennedy, J., concurring in judgment in part and
dissenting in part); Akron I, 462
U.S., at 440 ; Bellotti II, 443
U.S., at 643 -644 (plurality opinion). Under these precedents, in our view,
the one-parent consent requirement and judicial bypass procedure are
constitutional.
The only argument made by petitioners respecting this provision and to which
our prior decisions do not speak is the contention that the parental consent
requirement is invalid because it requires informed parental consent. For the
most part, petitioners' argument is a reprise of their argument with respect to
the informed consent requirement in general, and we reject it for the reasons
given above. Indeed, some of the provisions regarding informed consent have
particular force with respect to minors: the waiting period, for example, may
provide the parent or parents of a pregnant young woman the opportunity to
consult with her in private, and to discuss the consequences of her decision in
[505 U.S. 833, 900] the
context of the values and moral or religious principles of their family. See
Hodgson, supra, at 448-449 (opinion of Stevens, J.)
Under the recordkeeping and reporting requirements of the statute, every
facility which performs abortions is required to file a report stating its name
and address as well as the name and address of any related entity, such as a
controlling or subsidiary organization. In the case of state-funded
institutions, the information becomes public.
For each abortion performed, a report must be filed identifying: the
physician (and the second physician where required); the facility; the
referring physician or agency; the woman's age; the number of prior pregnancies
and prior abortions she has had; gestational age; the type of abortion
procedure; the date of the abortion; whether there were any preexisting medical
conditions which would complicate pregnancy; medical complications with the
abortion; where applicable, the basis for the determination that the abortion
was medically necessary; the weight of the aborted fetus; and whether the woman
was married, and if so, whether notice was provided or the basis for the
failure to give notice. Every abortion facility must also file quarterly
reports showing the number of abortions performed broken down by trimester. See
18 Pa.Cons.Stat. 3207, 3214 (1990). In all events, the identity of each woman
who has had an abortion remains confidential.
In Danforth, 428
U.S., at 80 , we held that recordkeeping and reporting provisions that are
reasonably directed to the preservation of maternal health and that properly
respect a patient's confidentiality and privacy are permissible. We think that,
under this standard, all the provisions at issue here except that relating to
spousal notice are constitutional. Although they do not relate to the State's
interest in informing the woman's choice, they do relate to health. The
collection of information with respect to actual patients [505 U.S. 833, 901] is a
vital element of medical research, and so it cannot be said that the
requirements serve no purpose other than to make abortions more difficult. Nor
do we find that the requirements impose a substantial obstacle to a woman's
choice. At most, they might increase the cost of some abortions by a slight
amount. While at some point increased cost could become a substantial obstacle,
there is no such showing on the record before us.
Subsection (12) of the reporting provision requires the reporting of, among
other things, a married woman's "reason for failure to provide
notice" to her husband. 3214(a)(12). This provision in effect requires
women, as a condition of obtaining an abortion, to provide the Commonwealth
with the precise information we have already recognized that many women have
pressing reasons not to reveal. Like the spousal notice requirement itself,
this provision places an undue burden on a woman's choice, and must be
invalidated for that reason.
Our Constitution is a covenant running from the first generation of
Americans to us, and then to future generations. It is a coherent succession.
Each generation must learn anew that the Constitution's written terms embody
ideas and aspirations that must survive more ages than one. We accept our
responsibility not to retreat from interpreting the full meaning of the
covenant in light of all of our precedents. We invoke it once again to define
the freedom guaranteed by the Constitution's own promise, the promise of
liberty.
* * *
The judgment in No. 91-902 is affirmed. The judgment in No. 91-744
is affirmed in part and reversed in part, and the case is remanded for
proceedings consistent with this opinion, including consideration of the
question of severability.
It is so ordered.
APPENDIX TO OPINION OF O'CONNOR,
KENNEDY, AND SOUTER, JJ.
Selected Provisions of the 1988 and 1989 Amendments to the
Pennsylvania Abortion Control Act of 1982
18 PA.CONS.STAT. (1990)
" 3203. Definitions.
. . . . .
"`Medical emergency.' That
condition which, on the basis of the physician's good faith clinical judgment,
so complicates the medical condition of a pregnant woman as to necessitate the
immediate abortion of her pregnancy to avert her death or for which a delay
will create serious risk of substantial and irreversible impairment of major
bodily function."
" 3205. Informed consent.
(a) General rule. - No abortion shall be performed or
induced except with the voluntary and informed consent of the woman upon whom
the abortion is to be performed or induced. Except in the case of a medical
emergency, consent to an abortion is voluntary and informed if and only if:
"(1) At least 24 hours prior
to the abortion, the physician who is to perform the abortion or the referring
physician has orally informed the woman of:
"(i) The nature of the
proposed procedure or treatment and of those risks and alternatives to the
procedure or treatment that a reasonable patient would consider material to the
decision of whether or not to undergo the abortion.
"(ii) The probable gestational
age of the unborn child at the time the abortion is to be performed.
"(iii) The medical risks
associated with carrying her child to term.
"(2) At least 24 hours prior
to the abortion, the physician who is to perform the abortion or the referring
physician, or a qualified physician assistant, health care practitioner,
technician or social worker to whom the [505 U.S. 833, 903] responsibility has been
delegated by either physician, has informed the pregnant woman that:
"(i) The department publishes
printed materials which describe the unborn child and list agencies which offer
alternatives to abortion and that she has a right to review the printed
materials and that a copy will be provided to her free of charge if she chooses
to review it.
"(ii) Medical assistance
benefits may be available for prenatal care, childbirth and neonatal care, and
that more detailed information on the availability of such assistance is
contained in the printed materials published by the department.
"(iii) The father of the
unborn child is liable to assist in the support of her child, even in instances
where he has offered to pay for the abortion. In the case of rape, this
information may be omitted.
"(3) A copy of the printed
materials has been provided to the woman if she chooses to view these
materials.
"(4) The pregnant woman
certifies in writing, prior to the abortion, that the information required to
be provided under paragraphs (1), (2) and (3) has been provided. [505 U.S. 833, 63]
"(b) Emergency. - Where a
medical emergency compels the performance of an abortion, the physician shall
inform the woman, prior to the abortion if possible, of the medical indications
supporting his judgment that an abortion is necessary to avert her death or to
avert substantial and irreversible impairment of major bodily function.
"(c) Penalty. - Any physician
who violates the provisions of this section is guilty of "unprofessional
conduct" and his license for the practice of medicine and surgery shall be
subject to suspension or revocation in accordance with procedures provided
under the act of October 5, 1978 (P.L. 1109, No. 261), known as the Osteopathic
Medical Practice Act, the [505
U.S. 833, 904] act of December 20, 1985 (P.L. 457, No. 112), known
as the Medical Practice Act of 1985, or their successor acts. Any physician who
performs or induces an abortion without first obtaining the certification
required by subsection (a)(4) or with knowledge or reason to know that the
informed consent of the woman has not been obtained shall for the first offense
be guilty of a summary offense and for each subsequent offense be guilty of a
misdemeanor of the third degree. No physician shall be guilty of violating this
section for failure to furnish the information required by subsection (a) if he
or she can demonstrate, by a preponderance of the evidence, that he or she
reasonably believed that furnishing the information would have resulted in a
severely adverse effect on the physical or mental health of the patient.
"(d) Limitation on civil
liability. - Any physician who complies with the provisions of this section may
not be held civilly liable to his patient for failure to obtain informed
consent to the abortion within the meaning of that term as defined by the act
of October 15, 1975 (P.L. 390, No. 111), known as the Health Care Services
Malpractice Act.
" 3206. Parental consent.
"(a) General rule. - Except in
the case of a medical emergency or except as provided in this section, if a
pregnant woman is less than 18 years of age and not emancipated, or if she has
been adjudged an incompetent under 20 Pa.C.S. 5511 (relating to petition and
hearing; examination by court-appointed physician), a physician shall not
perform an abortion upon her unless, in the case of a woman who is less than 18
years of age, he first obtains the informed consent both of the pregnant woman
and of one of her parents; or, in the case of a woman who is incompetent, he
first obtains the informed consent of her guardian. In deciding whether to
grant such consent, a pregnant woman's parent or guardian shall consider only
their child's or ward's best interests. In the case of a pregnancy that is the
result of incest, where [505 U.S.
833, 905] the father is a party to the incestuous act, the
pregnant woman need only obtain the consent of her mother.
"(b) Unavailability of parent
or guardian. - If both parents have died or are otherwise unavailable to the
physician within a reasonable time and in a reasonable manner, consent of the
pregnant woman's guardian or guardians shall be sufficient. If the pregnant
woman's parents are divorced, consent of the parent having custody shall be
sufficient. If neither any parent nor a legal guardian is available to the
physician within a reasonable time and in a reasonable manner, consent of any
adult person standing in loco parentis shall be sufficient.
"(c) Petition to the court for
consent. - If both of the parents or guardians of the pregnant woman refuse to
consent to the performance of an abortion or if she elects not to seek the
consent of either of her parents or of her guardian, the court of common pleas
of the judicial district in which the applicant resides or in which the
abortion is sought shall, upon petition or motion, after an appropriate
hearing, authorize a physician to perform the abortion if the court determines
that the pregnant woman is mature and capable of giving informed consent to the
proposed abortion, and has, in fact, given such consent.
"(d) Court order. - If the
court determines that the pregnant woman is not mature and capable of giving
informed consent or if the pregnant woman does not claim to be mature and
capable of giving informed consent, the court shall determine whether the
performance of an abortion upon her would be in her best interests. If the
court determines that the performance of an abortion would be in the best
interests of the woman, it shall authorize a physician to perform the abortion.
"(e) Representation in
proceedings. - The pregnant woman may participate in proceedings in the court
on her own behalf and the court may appoint a guardian ad litem to assist her.
The court shall, however, advise her that she has [505 U.S. 833, 906] a right to court-appointed
counsel, and shall provide her with such counsel unless she wishes to appear
with private counsel or has knowingly and intelligently waived representation
by counsel.
" 3207. Abortion facilities.
"(b) Reports. - Within 30 days
after the effective date of this chapter, every facility at which abortions are
performed shall file, and update immediately upon any change, a report with the
department, containing the following information:
"(1) Name and address of the
facility.
"(2) Name and address of any
parent, subsidiary or affiliated organizations, corporations or associations.
"(3) Name and address of any
parent, subsidiary or affiliated organizations, corporations or associations
having contemporaneous commonality of ownership, beneficial interest,
directorship or officership with any other facility.
The information contained in those reports which are filed
pursuant to this subsection by facilities which receive State-appropriated
funds during the 12 calendar-month period immediately preceding a request to
inspect or copy such reports shall be deemed public information. Reports filed
by facilities which do not receive State-appropriated funds shall only be
available to law enforcement officials, the State Board of Medicine and the
State Board of Osteopathic Medicine for use in the performance of their
official duties. Any facility failing to comply with the provisions of this
subsection shall be assessed by the department a fine of $500 for each day it
is in violation hereof.
" 3208. Printed information.
"(a) General rule. - The
department shall cause to be published in English, Spanish and Vietnamese,
within 60 days after this chapter becomes law, and shall update on an annual
basis, the following easily comprehensible printed materials: [505 U.S. 833, 907]
"(1) Geographically indexed
materials designed to inform the woman of public and private agencies and
services available to assist a woman through pregnancy, upon childbirth and
while the child is dependent, including adoption agencies, which shall include
a comprehensive list of the agencies available, a description of the services
they offer and a description of the manner, including telephone numbers, in
which they might be contacted, or, at the option of the department, printed
materials including a toll-free 24 hour-a-day telephone number which may be
called to obtain, orally, such a list and description of agencies in the
locality of the caller and of the services they offer. The materials shall
provide information on the availability of medical assistance benefits for
prenatal care, childbirth and neonatal care, and state that it is unlawful for
any individual to coerce a woman to undergo abortion, that any physician who
performs an abortion upon a woman without obtaining her informed consent or without
according her a private medical consultation may be liable to her for damages
in a civil action at law, that the father of a child is liable to assist in the
support of that child, even in instances where the father has offered to pay
for an abortion and that the law permits adoptive parents to pay costs of
prenatal care, childbirth and neonatal care.
(2) Materials designed to inform
the woman of the probable anatomical and physiological characteristics of the
unborn child at two-week gestational increments from fertilization to full
term, including pictures representing the development of unborn children at
two-week gestational increments, and any relevant information on the
possibility of the unborn child's survival; provided that any such pictures or
drawings must contain the dimensions of the fetus and must be realistic and
appropriate for the woman's stage of pregnancy. The materials shall be
objective, non-judgmental and designed [505 U.S. 833, 908] to convey only accurate
scientific information about the unborn child at the various gestational ages.
The material shall also contain objective information describing the methods of
abortion procedures commonly employed, the medical risks commonly associated
with each such procedure, the possible detrimental psyschological effects of
abortion and the medical risks commonly associated with each such procedure and
the medical risks commonly associated with carrying a child to term. [505 U.S. 833, 68]
"(b) Format. - The materials
shall be printed in a typeface large enough to be clearly legible.
"(c) Free distribution. - The
materials required under this section shall be available at no cost from the
department upon request and in appropriate number to any person, facility or
hospital.
" 3209. Spousal notice.
"(a) Spousal notice required.
- In order to further the Commonwealth's interest in promoting the integrity of
the marital relationship and to protect a spouse's interests in having children
within marriage and in protecting the prenatal life of that spouse's child, no
physician shall perform an abortion on a married woman, except as provided in
subsections (b) and (c), unless he or she has received a signed statement,
which need not be notarized, from the woman upon whom the abortion is to be performed,
that she has notified her spouse that she is about to undergo an abortion. The
statement shall bear a notice that any false statement made therein is
punishable by law.
"(b) Exceptions. - The
statement certifying that the notice required by subsection (a) has been given
need not be furnished where the woman provides the physician a signed statement
certifying at least one of the following:
"(1) Her spouse is not the
father of the child.
"(2) Her spouse, after
diligent effort, could not be located. [505 U.S. 833, 909]
"(3) The pregnancy is a result
of spousal sexual assault as described in section 3128 (relating to spousal
sexual assault), which has been reported to a law enforcement agency having the
requisite jurisdiction.
"(4) The woman has reason to
believe that the furnishing of notice to her spouse is likely to result in the
infliction of bodily injury upon her by her spouse or by another individual.
Such statement need not be notarized, but shall bear a
notice that any false statements made therein are punishable by law.
"(c) Medical emergency. - The
requirements of subsection (a) shall not apply in case of a medical emergency.
"(d) Forms. - The department
shall cause to be published, forms which may be utilized for purposes of providing
the signed statements required by subsections (a) and (b). The department shall
distribute an adequate supply of such forms to all abortion facilities in this
Commonwealth.
"(e) Penalty; civil action. -
Any physician who violates the provisions of this section is guilty of
"unprofessional conduct," and his or her license for the practice of
medicine and surgery shall be subject to suspension or revocation in accordance
with procedures provided under the act of October 5, 1978 (P.L. 1109, No. 261),
known as the Osteopathic Medical Practice Act, the act of December 20, 1985 (P.
L. 457, No. 112), known as the Medical Practice Act of 1985, or their successor
acts. In addition, any physician who knowingly violates the provisions of this
section shall be civilly liable to the spouse who is the father of the aborted
child for any damages caused thereby and for punitive damages in the amount of
$5,000, and the court shall award a prevailing plaintiff a reasonable attorney
fee as part of costs.
" 3214. Reporting.
"(a) General rule. - For the
purpose of promotion of maternal health and life by adding to the sum of
medical and [505 U.S. 833, 910]
public health knowledge through the compilation of relevant data,
and to promote the Commonwealth's interest in protection of the unborn child, a
report of each abortion performed shall be made to the department on forms
prescribed by it. The report forms shall not identify the individual patient by
name and shall include the following information:
"(1) Identification of the
physician who performed the abortion, the concurring physician as required by
section 3211(c)(2) (relating to abortion on unborn child of 24 or more weeks
gestational age), the second physician as required by section 3211(c)(5) and
the facility where the abortion was performed and of the referring physician,
agency or service, if any.
"(2) The county and state in
which the woman resides.
"(3) The woman's age.
"(4) The number of prior
pregnancies and prior abortions of the woman.
"(5) The gestational age of
the unborn child at the time of the abortion.
"(6) The type of procedure
performed or prescribed and the date of the abortion.
"(7) Preexisting medical
conditions of the woman which would complicate pregnancy, if any, and if known,
any medical complication which resulted from the abortion itself.
"(8) The basis for the medical
judgment of the physician who performed the abortion that the abortion was
necessary to prevent either the death of the pregnant woman or he substantial
and irreversible impairment of a major bodily function of the woman, where an
abortion has been performed pursuant to section 3211(b)(1).
"(9) The weight of the aborted
child for any abortion performed pursuant to section 3211(b)(1).
"(10) Basis for any medical
judgment that a medical emergency existed which excused the physician from
compliance with any provision of this chapter. [505 U.S. 833, 911]
"(11) The information required
to be reported under section 3210(a) (relating to determination of gestational
age).
"(12) Whether the abortion was
performed upon a married woman and, if so, whether notice to her spouse was
given. If no notice to her spouse was given, the report shall also indicate the
reason for failure to provide notice.
. . . . .
"(f) Report by facility. -
Every facility in which an abortion is performed within this Commonwealth
during any quarter year shall file with the department a report showing the
total number of abortions performed within the hospital or other facility
during that quarter year. This report shall also show the total abortions
performed in each trimester of pregnancy. Any report shall be available for
public inspection and copying only if the facility receives State-appropriated
funds within the 12 calendar-month period immediately preceding the filing of
the report. These reports shall be submitted on a form prescribed by the
department which will enable a facility to indicate whether or not it is
receiving State-appropriated funds: If the facility indicates on the form that it
is not receiving State-appropriated funds, the department shall regard its
report as confidential unless it receives other evidence which causes it to
conclude that the facility receives State-appropriated funds.
JUSTICE STEVENS, concurring in part and dissenting in part.
The portions of the Court's opinion that I have joined are more important
than those with which I disagree. I shall therefore first comment on
significant areas of agreement, and then explain the limited character of my
disagreement. [505 U.S. 833, 912]
The Court is unquestionably correct in concluding that the doctrine of stare
decisis has controlling significance in a case of this kind, notwithstanding an
individual Justice's concerns about the merits. 1 The central holding of
Roe v. Wade, 410
U.S. 113 (1973), has been a "part of our law" for almost two
decades. Planned Parenthood of Central Mo. v. Danforth, 428
U.S. 52, 101 (1976) (STEVENS, J., concurring in part and dissenting in
part). It was a natural sequel to the protection of individual liberty
established in Griswold v. Connecticut, 381
U.S. 479 (1965). See also Carey v. Population Services International, 431
U.S. 678, 687 , 702 (1977) (WHITE, J., concurring in part and concurring in
result). The societal costs of overruling Roe at this late date would be
enormous. Roe is an integral part of a correct understanding of both the
concept of liberty and the basic equality of men and women.
Stare decisis also provides a sufficient basis for my agreement with the
joint opinion's reaffirmation of Roe's postviability analysis. Specifically, I
accept the proposition that, [i]f the State is interested in protecting fetal
life after viability, it may go so far as to proscribe abortion during that
period, except when it is necessary to preserve the life or health of the
mother. 410
U.S., at 163 -164; see ante, at 879.
I also accept what is implicit in the Court's analysis, namely, a
reaffirmation of Roe's explanation of why the State's obligation to protect the
life or health of the mother [505
U.S. 833, 913] must take precedence over any duty to the unborn.
The Court in Roe carefully considered, and rejected, the State's argument
"that the fetus is a `person' within the language and meaning of the
Fourteenth Amendment." 410
U.S., at 156 . After analyzing the usage of "person" in the
Constitution, the Court concluded that that word "has application only
postnatally." Id., at 157. Commenting on the contingent property interests
of the unborn that are generally represented by guardians ad litem, the Court
noted: Perfection of the interests involved, again, has generally been
contingent upon live birth. In short, the unborn have never been recognized in
the law as persons in the whole sense. Id., at 162. Accordingly, an abortion is
not "the termination of life entitled to Fourteenth Amendment
protection." Id., at 159. From this holding, there was no dissent, see
id., at 173; indeed, no Member of the Court has ever questioned this
fundamental proposition. Thus, as a matter of federal constitutional law, a
developing organism that is not yet a "person" does not have what is
sometimes described as a "right to life." 2 This has been and, by
the Court's holding today, [505
U.S. 833, 914] remains, a fundamental premise of our constitutional
law governing reproductive autonomy.
My disagreement with the joint opinion begins with its understanding of the
trimester framework established in Roe. Contrary to the suggestion of the joint
opinion, ante, at 876, it is not a "contradiction" to recognize that
the State may have a legitimate interest in potential human life and, at the
same time, to conclude that that interest does not justify the regulation of
abortion before viability (although other interests, such as maternal health,
may). The fact that the State's interest is legitimate does not tell us when,
if ever, that interest outweighs the pregnant woman's interest in personal
liberty. It is appropriate, therefore, to consider more carefully the nature of
the interests at stake.
First, it is clear that, in order to be legitimate, the State's interest
must be secular; consistent with the First Amendment, the State may not promote
a theological or sectarian interest. See Thornburgh v. American College of
Obstetricians and Gynecologists, 476
U.S. 747, 778 (1986) (STEVENS, J., concurring); see generally Webster v.
Reproductive Health Services, 492
U.S. 490, 563 -572 (1989) (STEVENS, J., concurring in part and dissenting
in part). Moreover, as discussed above, the state interest in potential human
life is not an interest in loco parentis, for the fetus is not a person.
Identifying the State's interests - which the States rarely articulate with
any precision - makes clear that the interest in protecting potential life is
not grounded in the Constitution. It is, instead, an indirect interest
supported by both humanitarian and pragmatic concerns. Many of our citizens
believe that any abortion reflects an unacceptable disrespect for potential
human life, and that the performance of more [505 U.S. 833, 915] than a million abortions each
year is intolerable; many find third-trimester abortions performed when the
fetus is approaching personhood particularly offensive. The State has a
legitimate interest in minimizing such offense. The State may also have a
broader interest in expanding the population, 3 believing society would
benefit from the services of additional productive citizens - or that the
potential human lives might include the occasional Mozart or Curie. These are
the kinds of concerns that comprise the State's interest in potential human
life.
In counterpoise is the woman's constitutional interest in liberty. One
aspect of this liberty is a right to bodily integrity, a right to control one's
person. See, e.g., Rochin v. California, 342
U.S. 165 (1952); Skinner v. Oklahoma ex rel Williamson, 316
U.S. 535 (1942). This right is neutral on the question of abortion: the
Constitution would be equally offended by an absolute requirement that all
women undergo abortions as by an absolute prohibition on abortions. "Our
whole constitutional heritage rebels at the thought of giving government the
power to control men's minds." Stanley v. Georgia, 394
U.S. 557, 565 (1969). The same holds true for the power to control women's
bodies.
The woman's constitutional liberty interest also involves her freedom to
decide matters of the highest privacy and the most personal nature. Cf. Whalen
v. Roe, 429
U.S. 589 , [505 U.S. 833, 916]
598-600 (1977). A woman considering abortion faces a difficult
choice having serious and personal consequences of major importance to her own
future - perhaps to the salvation of her own immortal soul. Thornburgh, 476
U.S., at 781 . The authority to make such traumatic and yet empowering
decisions is an element of basic human dignity. As the joint opinion so
eloquently demonstrates, a woman's decision to terminate her pregnancy is
nothing less than a matter of conscience.
Weighing the State's interest in potential life and the woman's liberty
interest, I agree with the joint opinion that the State may
"`"expres[s] a preference for normal childbirth,"'" that
the State may take steps to ensure that a woman's choice "is thoughtful
and informed," and that States are free to enact laws to provide a
reasonable framework for a woman to make a decision that has such profound and
lasting meaning. Ante, at 872-873. Serious questions arise, however, when a
State attempts to "persuade the woman to choose childbirth over abortion."
Ante, at 878. Decisional autonomy must limit the State's power to inject into a
woman's most personal deliberations its own views of what is best. The State
may promote its preferences by funding childbirth, by creating and maintaining
alternatives to abortion, and by espousing the virtues of family; but it must
respect the individual's freedom to make such judgments.
This theme runs throughout our decisions concerning reproductive freedom. In
general, Roe's requirement that restrictions on abortions before viability be
justified by the State's interest in maternal health has prevented States from
interjecting regulations designed to influence a woman's decision. Thus, we
have upheld regulations of abortion that are not efforts to sway or direct a
woman's choice, but rather are efforts to enhance the deliberative quality of
that decision or are neutral regulations on the health aspects of her decision.
We have, for example, upheld regulations requiring [505 U.S. 833, 917] written informed consent, see
Planned Parenthood of Central Mo. v. Danforth, 428
U.S. 52 (1976); limited recordkeeping and reporting, see ibid.; and
pathology reports, see Planned Parenthood Assn. of Kansas City, Mo., Inc. v.
Ashcroft, 462
U.S. 476 (1983); as well as various licensing and qualification provisions,
see, e.g., Roe, 410
U.S., at 150 ; Simopoulos v. Virginia, 462
U.S. 506 (1983). Conversely, we have consistently rejected state efforts to
prejudice a woman's choice, either by limiting the information available to
her, see Bigelow v. Virginia, 421
U.S. 809 (1975), or by "requir[ing] the delivery of information
designed `to influence the woman's informed choice between abortion or
childbirth.'" Thornburgh, 476
U.S., at 760 ; see also Akron v. Akron Center for Reproductive Health,
Inc., 462
U.S. 416, 442 -449 (1983).
In my opinion, the principles established in this long line of cases and the
wisdom reflected in Justice Powell's opinion for the Court in Akron (and
followed by the Court just six years ago in Thornburgh) should govern our
decision today. Under these principles, Pa. Cons. Stat. 3205(a)(2)(i)-(iii)
(1990) of the Pennsylvania statute are unconstitutional. Those sections require
a physician or counselor to provide the woman with a range of materials clearly
designed to persuade her to choose not to undergo the abortion. While the
Commonwealth is free, pursuant to 3208 of the Pennsylvania law, to produce and
disseminate such material, the Commonwealth may not inject such information
into the woman's deliberations just as she is weighing such an important
choice.
Under this same analysis, 3205(a)(1)(i) and (iii) of the Pennsylvania
statute are constitutional. Those sections, which require the physician to
inform a woman of the nature and risks of the abortion procedure and the
medical risks of carrying to term, are neutral requirements comparable to those
imposed in other medical procedures. Those sections indicate no effort by the
Commonwealth to influence the [505
U.S. 833, 918] woman's choice in any way. If anything, such
requirements enhance, rather than skew, the woman's decisionmaking.
The 24-hour waiting period required by 3205(a)(1)-(2) of the Pennsylvania
statute raises even more serious concerns. Such a requirement arguably furthers
the Commonwealth's interests in two ways, neither of which is constitutionally
permissible.
First, it may be argued that the 24 hour delay is justified by the mere fact
that it is likely to reduce the number of abortions, thus furthering the
Commonwealth's interest in potential life. But such an argument would justify
any form of coercion that placed an obstacle in the woman's path. The
Commonwealth cannot further its interests by simply wearing down the ability of
the pregnant woman to exercise her constitutional right.
Second, it can more reasonably be argued that the 24-hour delay furthers the
Commonwealth's interest in ensuring that the woman's decision is informed and
thoughtful. But there is no evidence that the mandated delay benefits women, or
that it is necessary to enable the physician to convey any relevant information
to the patient. The mandatory delay thus appears to rest on outmoded and
unacceptable assumptions about the decisionmaking capacity of women. While
there are well-established and consistently maintained reasons for the Commonwealth
to view with skepticism the ability of minors to make decisions, see Hodgson v.
Minnesota, 497
U.S. 417, 449 (1990), 4
none of those reasons applies to an [505 U.S. 833, 919] adult woman's decisionmaking
ability. Just as we have left behind the belief that a woman must consult her
husband before undertaking serious matters, see ante, at 895-898, so we must
reject the notion that a woman is less capable of deciding matters of gravity.
Cf. Reed v. Reed, 404
U.S. 71 (1971).
In the alternative, the delay requirement may be premised on the belief that
the decision to terminate a pregnancy is presumptively wrong. This premise is
illegitimate. Those who disagree vehemently about the legality and morality of
abortion agree about one thing: the decision to terminate a pregnancy is
profound and difficult. No person undertakes such a decision lightly - and
States may not presume that a woman has failed to reflect adequately merely
because her conclusion differs from the State's preference. A woman who has, in
the privacy of her thoughts and conscience, weighed the options and made her
decision cannot be forced to reconsider all, simply because the State believes
she has come to the wrong conclusion. 5 [505 U.S. 833, 920]
Part of the constitutional liberty to choose is the equal dignity to which
each of us is entitled. A woman who decides to terminate her pregnancy is
entitled to the same respect as a woman who decides to carry the fetus to term.
The mandatory waiting period denies women that equal respect.
In my opinion, a correct application of the "undue burden"
standard leads to the same conclusion concerning the constitutionality of these
requirements. A state-imposed burden on the exercise of a constitutional right
is measured both by its effects and by its character: a burden may be
"undue" either because the burden is too severe or because it lacks a
legitimate, rational justification. 6
The 24-hour delay requirement fails both parts of this test. The findings of
the District Court establish the severity of [505 U.S. 833, 921] the burden that the 24-hour
delay imposes on many pregnant women. Yet even in those cases in which the
delay is not especially onerous, it is, in my opinion, "undue,"
because there is no evidence that such a delay serves a useful and legitimate
purpose. As indicated above, there is no legitimate reason to require a woman
who has agonized over her decision to leave the clinic or hospital and return
again another day. While a general requirement that a physician notify her
patients about the risks of a proposed medical procedure is appropriate, a
rigid requirement that all patients wait 24 hours or (what is true in [505 U.S. 833, 11] practice)
much longer to evaluate the significance of information that is either common
knowledge or irrelevant is an irrational, and therefore "undue,"
burden.
The counseling provisions are similarly infirm. Whenever government commands
private citizens to speak or to listen, careful review of the justification for
that command is particularly appropriate. In this case, the Pennsylvania
statute directs that counselors provide women seeking abortions with
information concerning alternatives to abortion, the availability of medical
assistance benefits, and the possibility of child support payments.
3205(a)(2)(i)-(iii). The statute requires that this information be given to all
women seeking abortions, including those for whom such information is clearly
useless, such as those who are married, those who have undergone the procedure
in the past and are fully aware of the options, and those who are fully
convinced that abortion is their only reasonable option. Moreover, the statute
requires physicians to inform all of their patients of "[t]he probable
gestational age of the unborn child." 3205(a)(1)(ii). This information is
of little decisional value in most cases, because 90% of all abortions are
performed during the first trimester, 7 when fetal age has less
relevance than when the fetus nears viability. Nor can the information [505 U.S. 833, 922] required
by the statute be justified as relevant to any "philosophic" or
"social" argument, ante at 872, either favoring or disfavoring the
abortion decision in a particular case. In light of all of these facts, I
conclude that the information requirements in 3205(a)(1)(ii) and 3205(a)(2)(i)
(iii) do not serve a useful purpose, and thus constitute an unnecessary - and
therefore undue - burden on the woman's constitutional liberty to decide to
terminate her pregnancy.
Accordingly, while I disagree with Parts IV, V-B, and V-D of the joint
opinion, 8 I join the
remainder of the Court's opinion.
[ Footnote
1 ] It is sometimes useful to view the issue of stare decisis from a
historical perspective. In the last 19 years, 15 Justices have confronted the
basic issue presented in Roe v. Wade, 410
U.S. 113 (1973). Of those, 11 have voted as the majority does today: Chief
Justice Burger, Justices Douglas, Brennan, Stewart, Marshall, and Powell, and
Justices BLACKMUN, O'CONNOR, KENNEDY, SOUTER, and myself. Only four - all of
whom happen to be on the Court today - have reached the opposite conclusion.
[ Footnote 2 ]
Professor Dworkin has made this comment on the issue:
"The suggestion that states
are free to declare a fetus a person. . . . assumes that a state can curtail
some persons' constitutional rights by adding new persons to the constitutional
population. The constitutional rights of one citizen are, of course, very much
affected by who or what else also has constitutional rights, because the rights
of others may compete or conflict with his. So any power to increase the
constitutional population by unilateral decision would be, in effect, a power
to decrease rights the national Constitution grants to others.
". . . If a state could
declare trees to be persons with a constitutional right to life, it could
prohibit publishing newspapers or books in spite of the First Amendment's
guarantee of free speech, which could not be understood as a license to kill. .
. . Once we understand that the suggestion we are considering has that
implication, we must reject it. If a fetus is not part of the constitutional
population under the national constitutional arrangement, then states have no
power to overrule that national arrangement by themselves declaring that
fetuses have rights competitive with [505
U.S. 833, 914] the constitutional rights of pregnant women."
Unenumerated Rights: Whether and How Doe Should be Overruled, 59 U.Chi.L.Rev.
381, 400 401 (1992).
[ Footnote 3 ] The
state interest in protecting potential life may be compared to the state
interest in protecting those who seek to immigrate to this country. A
contemporary example is provided by the Haitians who have risked the perils of
the sea in a desperate attempt to become "persons" protected by our
laws. Humanitarian and practical concerns would support a state policy allowing
those persons unrestricted entry; countervailing interests in population
control support a policy of limiting the entry of these potential citizens.
While the state interest in population control might be sufficient to justify
strict enforcement of the immigration laws, that interest would not be
sufficient to overcome a woman's liberty interest. Thus, a state interest in
population control could not justify a state-imposed limit on family size or,
for that matter, state-mandated abortions.
[ Footnote 4 ] As we
noted in that opinion, the State's "legitimate interest in protecting
minor women from their own immaturity" distinguished that case from Akron
v. Akron Center for Reproductive Health, Inc., 462
U.S. 416 (1983), which involved a provision that required that mature
women, capable of consenting to an abortion, wait 24 hours after giving consent
before undergoing an abortion. Hodgson, 497
U.S., at 449 , n. 35.
[ Footnote 5 ] The
joint opinion's reliance on the indirect effects of the regulation of
constitutionally protected activity, see ante, at 873-874, is misplaced; what
matters is not only the effect of a regulation, but also the reason for the
regulation. As I explained in Hodgson:
"In cases involving abortion,
as in cases involving the right to travel or the right to marry, the
identification of the constitutionally protected interest is merely the
beginning of the analysis. State regulation of travel and of marriage is
obviously permissible even though a State may not categorically exclude
nonresidents from its borders, Shapiro v. Thompson, 394
U.S. 618, 631 (1969), or deny prisoners the right to marry, Turner v.
Safley, 482
U.S. 78, 94 -99 (1987). But the regulation of constitutionally protected
decisions, such as where a person shall reside or whom he or she shall marry,
must be predicated on legitimate state concerns other than disagreement with
the choice the individual has made. Cf. Turner v. Safley, supra; Loving v.
Virginia, 388
U.S. 1, 12 (1967). In the abortion area, a State may have no obligation to
spend its own money, or use its own facilities, to subsidize nontherapeutic
abortions for minors or adults. See, e.g., Maher v. Roe, 432
U.S. 464 (1977); cf. Webster v. Reproductive [505 U.S. 833, 920] Health Services, 492
U.S. 490, 508 -511 (1989); id., at 523-524 (O'CONNOR, J., concurring in
part and concurring in judgment). A State's value judgment favoring childbirth
over abortion may provide adequate support for decisions involving such
allocation of public funds, but not for simply substituting a state decision
for an individual decision that a woman has a right to make for herself.
Otherwise, the interest in liberty protected by the Due Process Clause would be
a nullity. A state policy favoring childbirth over abortion is not in itself a
sufficient justification for overriding the woman's decision or for placing
`obstacles - absolute or otherwise - in the pregnant woman's path to an
abortion.'" 497
U.S., at 435 .
[ Footnote 6 ] The
meaning of any legal standard can only be understood by reviewing the actual
cases in which it is applied. For that reason, I discount both JUSTICE SCALIA's
comments on past descriptions of the standard, see post, at 988-990 (opinion
concurring in judgment in part and dissenting in part), and the attempt to give
it crystal clarity in the joint opinion. The several opinions supporting the
judgment in Griswold v. Connecticut, 381
U.S. 479 (1965), are less illuminating than the central holding of the
case, which appears to have passed the test of time. The future may also
demonstrate that a standard that analyzes both the severity of a regulatory
burden and the legitimacy of its justification will provide a fully adequate
framework for the review of abortion legislation even if the contours of the
standard are not authoritatively articulated in any single opinion.
[ Footnote 7 ] U.S.
Dept. of Commerce, Bureau of the Census, Statistical Abstract of the United
States 71 (111th ed. 1991).
[ Footnote 8 ]
Although I agree that a parental consent requirement (with the appropriate bypass)
is constitutional, I do not join Part V-D of the joint opinion because its
approval of Pennsylvania's informed parental consent requirement is based on
the reasons given in Part V-B, with which I disagree.
JUSTICE BLACKMUN, concurring in part, concurring in the judgment in part,
and dissenting in part.
I join Parts I, II, III, V-A, V-C, and VI of the joint opinion of JUSTICES
O'CONNOR, KENNEDY, and SOUTER, ante.
Three years ago, in Webster v. Reproductive Health Services 492
U.S. 490 (1989), four Members of this Court appeared poised to "cas[t]
into darkness the hopes and visions of every woman in this country" who
had come to believe that the Constitution guaranteed her the right to
reproductive choice. Id., at 557 (BLACKMUN, J., dissenting). See id., at 499
(plurality opinion of REHNQUIST, C. J., joined by White and Kennedy, JJ.); id.,
at 532 (SCALIA, J., concurring in part and concurring in judgment). All that
remained between the promise of Roe and the darkness of the plurality was a
single, flickering flame. Decisions since Webster gave little reason to hope
that this flame would cast much light. See, e.g., Ohio v. Akron Center for
Reproductive Health, 497
U.S. 502, 524 (1990) (BLACKMUN, J., dissenting). But now, just when so many
expected the darkness to fall, the flame has grown bright. [505 U.S. 833, 923]
I do not underestimate the significance of today's joint opinion. Yet I
remain steadfast in my belief that the right to reproductive choice is entitled
to the full protection afforded by this Court before Webster. And I fear for
the darkness as four Justices anxiously await the single vote necessary to
extinguish the light.
Make no mistake, the joint opinion of Justices O'CONNOR, KENNEDY, and SOUTER
is an act of personal courage and constitutional principle. In contrast to
previous decisions in which Justices O'CONNOR and KENNEDY postponed
reconsideration of Roe v. Wade, 410
U.S. 113 (1973), the authors of the joint opinion today join JUSTICE
STEVENS and me in concluding that "the essential holding of Roe v. Wade
should be retained and once again reaffirmed." Ante at 846. In brief, five
Members of this Court today recognize that "the Constitution protects a
woman's right to terminate her pregnancy in its early stages." Ante,, at
844.
A fervent view of individual liberty and the force of stare decisis have led
the Court to this conclusion. Ante, at 853. Today a majority reaffirms that the
Due Process Clause of the Fourteenth Amendment establishes "a realm of
personal liberty which the government may not enter," ante, at 847 - a
realm whose outer limits cannot be determined by interpretations of the Constitution
that focus only on the specific practices of States at the time the Fourteenth
Amendment was adopted. See ante, at 848-849. Included within this realm of
liberty is "the right of the individual, married or single, to be free
from unwarranted governmental intrusion into matters so fundamentally affecting
a person as the decision whether to bear or beget a child." Ante, at 851,
quoting Eisenstadt v. Baird, 405
U.S. 438, 453 (1972) (emphasis in original). These matters, involving the
most intimate and personal choices a person may make in a lifetime, choices
central to personal dignity and autonomy, are central to the [505 U.S. 833, 924] liberty
protected by the Fourteenth Amendment. Ante, at 851 (emphasis added). Finally,
the Court today recognizes that, in the case of abortion, the liberty of the
woman is at stake in a sense unique to the human condition and so unique to the
law. The mother who carries a child to full term is subject to anxieties, to
physical constraints, to pain that only she must bear. Ante, at 852.
The Court's reaffirmation of Roe's central holding is also based on the
force of stare decisis. [N]o erosion of principle going to liberty or personal
autonomy has left Roe's central holding a doctrinal remnant; Roe portends no
developments at odds with other precedent for the analysis of personal liberty;
and no changes of fact have rendered viability more or less appropriate as the
point at which the balance of interests tips. Ante, at 860-861. Indeed, the
Court acknowledges that Roe's limitation on state power could not be removed
without serious inequity to those who have relied upon it or significant damage
to the stability of the society governed by the rule in question. Ante, at 855.
In the 19 years since Roe was decided, that case has shaped more than
reproductive planning - [a]n entire generation has come of age free to assume
Roe's concept of liberty in defining the capacity of women to act in society,
and to make reproductive decisions. Ante, at 860. The Court understands that,
having "call[ed] the contending sides . . . to end their national division
by accepting a common mandate rooted in the Constitution," ante, at 867, a
decision to overrule Roe would seriously weaken the Court's capacity to
exercise the judicial power and to function as the Supreme Court of a Nation
dedicated to the rule of law. Ante, at 865. What has happened today should
serve as a model for future Justices and a warning to all who have tried to
turn this Court into yet another political branch.
In striking down the Pennsylvania statute's spousal notification
requirement, the Court has established a framework [505 U.S. 833, 925] for evaluating abortion
regulations that responds to the social context of women facing issues of
reproductive choice. 1 In
determining the burden imposed by the challenged regulation, the Court inquires
whether the regulation's "purpose or effect is to place a substantial
obstacle in the path of a woman seeking an abortion before the fetus attains
viability." Ante, at 878 (emphasis added). The Court reaffirms: The proper
focus of constitutional inquiry is the group for whom the law is a restriction,
not the group for whom the law is irrelevant. Ante, at 894. Looking at this
group, the Court inquires, based on expert testimony, empirical studies, and
common sense, whether, in a large fraction of the cases in which [the
restriction] is relevant, it will operate as a substantial obstacle to a
woman's choice to undergo an abortion. Ante,, at 895. A statute with this
purpose is invalid because the means chosen by the State to further the
interest in potential life must be calculated to inform the woman's free
choice, not hinder it. Ante, at 877. And in applying its test, the Court
remains sensitive to the unique role of women in the decisionmaking process.
Whatever may have been the practice when the Fourteenth Amendment was adopted,
the Court observes, [w]omen do not lose their constitutionally protected
liberty when they marry. The Constitution protects all individuals, male or
female, married or unmarried, from the abuse of governmental power, even where
that power is employed for the supposed benefit of a member of the individual's
family. Ante, at 898. 2
[505 U.S. 833, 926]
Lastly, while I believe that the joint opinion errs in failing to invalidate
the other regulations, I am pleased that the joint opinion has not ruled out
the possibility that these regulations may be shown to impose an
unconstitutional burden. The joint opinion makes clear that its specific
holdings are based on the insufficiency of the record before it. See, e.g.,
ante,, at 885-886. I am confident that, in the future, evidence will be
produced to show that, in a large fraction of the cases in which [these
regulations are] relevant, [they] will operate as a substantial obstacle to a
woman's choice to undergo an abortion. Ante, at 895.
Today, no less than yesterday, the Constitution and decisions of this Court
require that a State's abortion restrictions be subjected to the strictest of
judicial scrutiny. Our precedents and the joint opinion's principles require us
to subject all non-de-minimis abortion regulations to strict scrutiny. Under
this standard, the Pennsylvania statute's provisions requiring content-based
counseling, a 24-hour delay, informed parental consent, and reporting of
abortion-related information must be invalidated.
The Court today reaffirms the long recognized rights of privacy and bodily
integrity. As early as 1891, the Court held, [n]o right is held more sacred, or
is more carefully guarded by the common law, than the right of every individual
to the possession and control of his own person, free from all restraint or
interference of others. . . . Union Pacific R. Co. v. Botsford, 141
U.S. 250, 251 (1891). Throughout this century, this Court also has held
that the fundamental right of privacy protects citizens against governmental
intrusion [505 U.S. 833, 927]
in such intimate family matters as procreation, childrearing,
marriage, and contraceptive choice. See ante, at 847-849. These cases embody
the principle that personal decisions that profoundly affect bodily integrity,
identity, and destiny should be largely beyond the reach of government.
Eisenstadt, 405
U.S., at 453 . In Roe v. Wade, this Court correctly applied these
principles to a woman's right to choose abortion.
State restrictions on abortion violate a woman's right of privacy in two
ways. First, compelled continuation of a pregnancy infringes upon a woman's
right to bodily integrity by imposing substantial physical intrusions and
significant risks of physical harm. During pregnancy, women experience dramatic
physical changes and a wide range of health consequences. Labor and delivery
pose additional health risks and physical demands. In short, restrictive
abortion laws force women to endure physical invasions far more substantial
than those this Court has held to violate the constitutional principle of
bodily integrity in other contexts. See, e.g., Winston v. Lee, 470
U.S. 753 (1985) (invalidating surgical removal of bullet from murder
suspect); Rochin v. California, 342
U.S. 165 (1952) (invalidating stomach-pumping). 3
Further, when the State restricts a woman's right to terminate her
pregnancy, it deprives a woman of the right to make her own decision about
reproduction and family planning - critical life choices that this Court long
has deemed central to the right to privacy. The decision to terminate or
continue a pregnancy has no less an impact on a woman's life than decisions
about contraception or marriage. 410 U.S., [505 U.S. 833, 928] at 153. Because motherhood has
a dramatic impact on a woman's educational prospects, employment opportunities,
and self-determination, restrictive abortion laws deprive her of basic control
over her life. For these reasons, "the decision whether or not to beget or
bear a child" lies at "the very heart of this cluster of
constitutionally protected choices." Carey v. Population Services
International, 431
U.S. 678, 685 (1977).
A State's restrictions on a woman's right to terminate her pregnancy also
implicate constitutional guarantees of gender equality. State restrictions on
abortion compel women to continue pregnancies they otherwise might terminate.
By restricting the right to terminate pregnancies, the State conscripts women's
bodies into its service, forcing women to continue their pregnancies, suffer
the pains of childbirth, and in most instances, provide years of maternal care.
The State does not compensate women for their services; instead, it assumes
that they owe this duty as a matter of course. This assumption - that women can
simply be forced to accept the "natural" status and incidents of
motherhood - appears to rest upon a conception of women's role that has
triggered the protection of the Equal Protection Clause. See, e.g., Mississippi
Univ. for Women v. Hogan, 458
U.S. 718, 724 -726 (1982); Craig v. Boren, 429
U.S. 190, 198 -199 (1976). 4 The joint opinion
recognizes that these assumptions about women's place in society "are no
longer consistent with our [505
U.S. 833, 929] understanding of the family, the individual, or
the Constitution." Ante, at 897.
The Court has held that limitations on the right of privacy are permissible
only if they survive "strict" constitutional scrutiny - that is, only
if the governmental entity imposing the restriction can demonstrate that the
limitation is both necessary and narrowly tailored to serve a compelling
governmental interest. Griswold v. Connecticut, 381
U.S. 479, 485 (1965). We have applied this principle specifically in the
context of abortion regulations. Roe v. Wade, 410
U.S., at 155 . 5
Roe implemented these principles through a framework that was designed to
ensure that the woman's right to choose not become so subordinate to the
State's interest in promoting fetal life that her choice exists in theory, but
not in fact, ante, at 872. Roe identified two relevant state interests:
"an interest in preserving and protecting the health of the pregnant
woman" and an interest in "protecting the potentiality of human
life." 410
U.S., at 162 . With respect to the State's interest in the health of the
mother, "the `compelling' point . . . is at approximately the end of the
first trimester," because it is at that point that the mortality rate in
abortion approaches that in childbirth. Id., at 163. With respect to the
State's interest in potential life, "the `compelling' point is at
viability," because it is at that point that the [505 U.S. 833, 930] fetus "presumably
has the capability of meaningful life outside the mother's womb." Ibid. In
order to fulfill the requirement of narrow tailoring, "the State is
obligated to make a reasonable effort to limit the effect of its regulations to
the period in the trimester during which its health interest will be furthered.
Akron v. Akron Center for Reproductive Health, Inc., 462
U.S. 416, 434 (1983).
In my view, application of this analytical framework is no less warranted
than when it was approved by seven Members of this Court in Roe. Strict
scrutiny of state limitations on reproductive choice still offers the most
secure protection of the woman's right to make her own reproductive decisions,
free from state coercion. No majority of this Court has ever agreed upon an
alternative approach. The factual premises of the trimester framework have not
been undermined, see Webster, 492
U.S., at 553 (BLACKMUN, J., dissenting), and the Roe framework is far more
administrable, and far less manipulable, than the "undue burden"
standard adopted by the joint opinion.
Nonetheless, three criticisms of the trimester framework continue to be
uttered. First, the trimester framework is attacked because its key elements do
not appear in the text of the Constitution. My response to this attack remains
the same as it was in Webster:
"Were this a true concern, we
would have to abandon most of our constitutional jurisprudence. [T]he
"critical elements" of countless constitutional doctrines nowhere
appear in the Constitution's text. . . . The Constitution makes no mention, for
example, of the First Amendment's "actual malice" standard for
proving certain libels, see New York Times Co. v. Sullivan, 376
U.S. 254 (1964). . . . Similarly, the Constitution makes no mention of the
rational basis test, or the specific verbal formulations of intermediate and
strict scrutiny by which this Court evaluates claims under the Equal Protection
Clause. The reason is simple. Like the Roe framework, these [505 U.S. 833, 931] tests
or standards are not, and do not purport to be, rights protected by the
Constitution. Rather, they are judge-made methods for evaluating and measuring
the strength and scope of constitutional rights or for balancing the
constitutional rights of individuals against the competing interests of
government. Id., at 548.
The second criticism is that the framework more closely
resembles a regulatory code than a body of constitutional doctrine. Again, my
answer remains the same as in Webster:
"[I]f this were a true and
genuine concern, we would have to abandon vast areas of our constitutional
jurisprudence. . . . Are [the distinctions entailed in the trimester framework]
any finer, or more "regulatory," than the distinctions we have often
drawn in our First Amendment jurisprudence, where, for example, we have held
that a "release time" program permitting public school students to
leave school grounds during school hours to receive religious instruction does
not violate the Establishment Clause, even though a release time program
permitting religious instruction on school grounds does violate the Clause?
Compare Zorach v. Clauson, 343
U.S. 306 (1952), with Illinois ex rel. McCollum v. Board of Education of
School Dist. No. 71, Champaign County, 333
U.S. 203 (1948). . . . Similarly, in a Sixth Amendment case, the Court held
that, although an overnight ban on attorney-client communication violated the
constitutionally guaranteed right to counsel, Geders v. United States, 425
U.S. 80 (1976), that right was not violated when a trial judge separated a
defendant from his lawyer during a 15-minute recess after the defendant's
direct testimony. Perry v. Leeke, 488
U.S. 272 (1989).
"That numerous constitutional
doctrines result in narrow differentiations between similar circumstances does [505 U.S. 833, 932] not
mean that this Court has abandoned adjudication in favor of regulation. Id., at
549-550.
The final, and more genuine, criticism of the trimester
framework is that it fails to find the State's interest in potential human life
compelling throughout pregnancy. No Member of this Court - nor for that matter,
the Solicitor General, Tr. of Oral Arg. 42 - has ever questioned our holding in
Roe that an abortion is not "the termination of life entitled to
Fourteenth Amendment protection." 410
U.S., at 159 . Accordingly, a State's interest in protecting fetal life is
not grounded in the Constitution. Nor, consistent with our Establishment
Clause, can it be a theological or sectarian interest. See Thornburgh v.
American College of Obtetricians and Gynecologists, 476
U.S. 778, 747 , (1986) (STEVENS, J., concurring). It is, instead, a
legitimate interest grounded in humanitarian or pragmatic concerns. See ante,
at 914-915 (STEVENS, J., concurring in part and dissenting in part).
But while a State has "legitimate interests from the outset of the
pregnancy in protecting the health of the woman and the life of the fetus that
may become a child," ante, at 846, legitimate interests are not enough. To
overcome the burden of strict scrutiny, the interests must be compelling. The
question then is how best to accommodate the State's interest in potential
human life with the constitutional liberties of pregnant women. Again, I stand
by the views I expressed in Webster:
"I remain convinced, as six
other Members of this Court 16 years ago were convinced, that the Roe
framework, and the viability standard in particular, fairly, sensibly, and
effectively functions to safeguard the constitutional liberties of pregnant
women while recognizing and accommodating the State's interest in potential
human life. The viability line reflects the biological facts and truths of
fetal development; it marks that threshold moment prior to which a fetus cannot
survive separate from the [505
U.S. 833, 933] woman and cannot reasonably and objectively be
regarded as a subject of rights or interests distinct from, or paramount to,
those of the pregnant woman. At the same time, the viability standard takes
account of the undeniable fact that, as the fetus evolves into its postnatal
form, and as it loses its dependence on the uterine environment, the State's
interest in the fetus' potential human life, and in fostering a regard for
human life in general, becomes compelling. As a practical matter, because
viability follows "quickening" - the point at which a woman feels
movement in her womb - and because viability occurs no earlier than 23 weeks
gestational age, it establishes an easily applicable standard for regulating
abortion, while providing a pregnant woman ample time to exercise her
fundamental right with her responsible physician to terminate her pregnancy. 492
U.S., at 553 -554. 6
Roe's trimester framework does not ignore the State's
interest in prenatal life. Like JUSTICE STEVENS, ante, at 916, I agree that the
State may take steps to ensure that a woman's choice "is thoughtful and
informed," ante, at 872, and that States are free to enact laws to provide
a reasonable framework for a woman to make a decision that has such profound
and lasting meaning. Ante, at 873. But
"[s]erious questions arise . .
. when a State attempts to "persuade the woman to choose childbirth over
abortion." Ante, at 878. Decisional autonomy must limit the State's power
to inject into a woman's most personal deliberations its own views of what is
best. The State may promote its preferences by funding childbirth, by creating
and maintaining alternatives to abortion, and by espousing the virtues of
family; but it must respect [505
U.S. 833, 934] the individual's freedom to make such judgments.
Ante, at 916 (STEVENS, J., concurring in part and dissenting in part) (internal
quotation marks omitted).
As the joint opinion recognizes, the means chosen by the
State to further the interest in potential life must be calculated to inform
the woman's free choice, not hinder it. Ante, at 877.
In sum, Roe's requirement of strict scrutiny as implemented through a
trimester framework should not be disturbed. No other approach has gained a
majority, and no other is more protective of the woman's fundamental right.
Lastly, no other approach properly accommodates the woman's constitutional
right with the State's legitimate interests.
Application of the strict scrutiny standard results in the invalidation of
all the challenged provisions. Indeed, as this Court has invalidated virtually
identical provisions in prior cases, stare decisis requires that we again
strike them down.
This Court has upheld informed and written consent requirements only where
the State has demonstrated that they genuinely further important health-related
state concerns. See Planned Parenthood of Central Mo. v. Danforth, 428
U.S. 65 -67, 52, (1976). A State may not, under the guise of securing
informed consent, "require the delivery of information `designed to
influence the woman's informed choice between abortion or childbirth.'"
Thornburgh, 476
U.S., at 760 quoting Akron, 462
U.S., at 443 -444. Rigid requirements that a specific body of information
be imparted to a woman in all cases, regardless of the needs of the patient,
improperly intrude upon the discretion of the pregnant woman's physician. and
thereby impose an "`undesired and uncomfortable straitjacket.'" Thornburgh,
476
U.S., at 762 , quoting Danforth, 428
U.S., at 67 , n. 8.
Measured against these principles, some aspects of the Pennsylvania informed
consent scheme are unconstitutional. [505
U.S. 833, 935] While it is unobjectionable for the Commonwealth
to require that the patient be informed of the nature of the procedure, the
health risks of the abortion and of childbirth, and the probable gestational
age of the unborn child, compare Pa. Cons. Stat. 3205(a)(1)(i)-(iii) (1990)
with Akron, 462
U.S., at 446 , n. 37, I remain unconvinced that there is a vital state need
for insisting that the information be provided by a physician, rather than a
counselor. Id., at 448. The District Court found that the physician-only
requirement necessarily would increase costs to the plaintiff clinics, costs
that undoubtedly would be passed on to patients. And because trained women
counselors are often more understanding than physicians, and generally have
more time to spend with patients, see App. 366-387, the physician-only
disclosure requirement is not narrowly tailored to serve the Commonwealth's
interest in protecting maternal health.
Sections 3205(a)(2)(i) (iii) of the Act further requires that the physician
or a qualified nonphysician inform the woman that printed materials are
available from the Commonwealth that describe the fetus and provide information
about medical assistance for childbirth, information about child support from
the father, and a list of agencies offering adoption and other services as
alternatives to abortion. Thornburgh invalidated biased patient counseling
requirements virtually identical to the one at issue here. What we said of
those requirements fully applies in this case:
"[T]he listing of agencies in
the printed Pennsylvania form presents serious problems; it contains names of
agencies that well may be out of step with the needs of the particular woman,
and thus places the physician in an awkward position and infringes upon his or
her professional responsibilities. Forcing the physician or counselor to
present the materials and the list to the woman makes him or her in effect an
agent of the State in treating the woman and places his or her imprimatur upon
both the materials and the list. All this is, or [505 U.S. 833, 936] comes close to being, state
medicine imposed upon the woman, not the professional medical guidance she
seeks, and it officially structures - as it obviously was intended to do - the
dialogue between the woman and her physician.
"The requirements . . . that
the woman be advised that medical assistance benefits may be available, and
that the father is responsible for financial assistance in the support of the
child similarly are poorly disguised elements of discouragement for the
abortion decision. Much of this . . ., for many patients, would be irrelevant
and inappropriate. For a patient with a life-threatening pregnancy, the "information,"
in its very rendition, may be cruel as well as destructive of the
physician-patient relationship. As any experienced social worker or other
counselor knows, theoretical financial responsibility often does not equate
with fulfillment. . . . Under the guise of informed consent, the Act requires
the dissemination of information that is not relevant to such consent, and,
thus, it advances no legitimate state interest." 476
U.S., at 762 .
"This type of compelled
information is the antithesis of informed consent," id., at 764, and goes
far beyond merely describing the general subject matter relevant to the woman's
decision. That the Commonwealth does not, and surely would not, compel similar
disclosure of every possible peril of necessary surgery or of simple
vaccination, reveals the antiabortion character of the statute and its real
purpose." Ibid. 7
[505 U.S. 833, 937]
The 24-hour waiting period following the provision of the
foregoing information is also clearly unconstitutional. The District Court
found that the mandatory 24-hour delay could lead to delays in excess of 24
hours, thus increasing health risks, and that it would require two visits to
the abortion provider, thereby increasing travel time, exposure to further
harassment, and financial cost. Finally, the District Court found that the
requirement would pose especially significant burdens on women living in rural
areas and those women that have difficulty explaining their whereabouts. 744 F.
Supp. 1323, 1378-1379 (ED pa. 1990). In Akron, this Court invalidated a
similarly arbitrary or inflexible waiting period because, as here, it furthered
no legitimate state interest. 8
As JUSTICE STEVENS insightfully concludes, the mandatory delay rests either
on outmoded or unacceptable assumptions about the decisionmaking capacity of
women or the belief that the decision to terminate the pregnancy is [505 U.S. 833, 938] presumptively
wrong. Ante, at 918-919. The requirement that women consider this obvious and
slanted information for an additional 24 hours contained in these provisions
will only influence the woman's decision in improper ways. The vast majority of
women will know this information - of the few that do not, it is less likely
that their minds will be changed by this information than it will be either by
the realization that the State opposes their choice or the need once again to
endure abuse and harassment on return to the clinic. 9
Except in the case of a medical emergency, 3206 requires a physician to
obtain the informed consent of a parent or guardian before performing an
abortion on an unemancipated minor or an incompetent woman. Based on evidence
in the record, the District Court concluded that, in order to fulfill the informed
consent requirement, generally accepted medical principles would require an
in-person visit by the parent to the facility. 744 F. Supp., at 1382.Although
the Court "has recognized that the State has somewhat broader authority to
regulate the activities of children than of adults," the State
nevertheless must demonstrate that there is a "significant State interest
in conditioning an abortion . . . that is not present in the case of an
adult." Danforth, 428
U.S., at 74 -75 (emphasis added). The requirement of an in-person visit
would carry with it the risk of a delay of several days or possibly weeks, even
where the parent is willing to consent. While the State has an interest in
encouraging parental involvement in the minor's abortion decision, 3206 is not
narrowly drawn to serve that interest. 10 [505 U.S. 833, 939]
Finally, the Pennsylvania statute requires every facility performing
abortions to report its activities to the Commonwealth. Pennsylvania contends
that this requirement is valid under Danforth, in which this Court held that
recordkeeping and reporting requirements that are reasonably directed to the
preservation of maternal health, and that properly respect a patient's
confidentiality, are permissible. Id., at 79-81. The Commonwealth attempts to
justify its required reports on the ground that the public has a right to know
how its tax dollars are spent. A regulation designed to inform the public about
public expenditures does not further the Commonwealth's interest in protecting
maternal health. Accordingly, such a regulation cannot justify a legally
significant burden on a woman's right to obtain an abortion.
The confidential reports concerning the identities and medical judgment of
physicians involved in abortions at first glance may seem valid, given the
Commonwealth's interest in maternal health and enforcement of the Act. The
District Court found, however, that, notwithstanding the confidentiality
protections, many physicians, particularly those who have previously
discontinued performing abortions because of harassment, would refuse to refer
patients to abortion clinics if their names were to appear on these reports.
744 F. Supp., at 1392. The Commonwealth has failed to show that the name of the
referring physician either adds to the pool of scientific knowledge concerning
abortion or is reasonably related to the Commonwealth's interest in maternal
health. I therefore agree with the District Court's conclusion that the
confidential reporting requirements are unconstitutional [505 U.S. 833, 940] insofar
as they require the name of the referring physician and the basis for his or
her medical judgment.
In sum, I would affirm the judgment in No. 91-902 and reverse the judgment
in No. 91-744 and remand the cases for further proceedings.
At long last, THE CHIEF JUSTICE and those who have joined him admit it. Gone
are the contentions that the issue need not be (or has not been) considered.
There, on the first page, for all to see, is what was expected: We believe that
Roe was wrongly decided, and that it can and should be overruled consistently
with our traditional approach to stare decisis in constitutional cases. Post,
at 944. If there is much reason to applaud the advances made by the joint
opinion today, there is far more to fear from THE CHIEF JUSTICE's opinion.
THE CHIEF JUSTICE's criticism of Roe follows from his stunted conception of
individual liberty. While recognizing that the Due Process Clause protects more
than simple physical liberty, he then goes on to construe this Court's personal
liberty cases as establishing only a laundry list of particular rights, rather
than a principled account of how these particular rights are grounded in a more
general right of privacy. Post, at 951. This constricted view is reinforced by
THE CHIEF JUSTICE's exclusive reliance on tradition as a source of fundamental
rights. He argues that the record in favor of a right to abortion is no
stronger than the record in Michael H. v. Gerald D., 491
U.S. 110 (1989), where the plurality found no fundamental right to
visitation privileges by an adulterous father, or in Bowers v. Hardwick, 478
U.S. 186 (1986), where the Court found no fundamental right to engage in
homosexual sodomy, or in a case involving the "`firing [of] a gun . . .
into another person's body.'" Post, at 951-952. In THE CHIEF JUSTICE's
world, a woman considering whether to terminate a pregnancy is entitled to no
more protection than adulterers, murderers, and so-called sexual [505 U.S. 833, 941] deviates.
11 Given THE CHIEF
JUSTICE's exclusive reliance on tradition, people using contraceptives seem the
next likely candidate for his list of outcasts.
Even more shocking than THE CHIEF JUSTICE's cramped notion of individual
liberty is his complete omission of any discussion of the effects that
compelled childbirth and motherhood have on women's lives. The only expression
of concern with women's health is purely instrumental - for THE CHIEF JUSTICE,
only women's psychological health is a concern, and only to the extent that he
assumes that every woman who decides to have an abortion does so without serious
consideration of the moral implications of their decision. Post, at 967-968. In
short, THE CHIEF JUSTICE's view of the State's compelling interest in maternal
health has less to do with health than it does with compelling women to be
maternal.
Nor does THE CHIEF JUSTICE give any serious consideration to the doctrine of
stare decisis. For THE CHIEF JUSTICE, the facts that gave rise to Roe are
surprisingly simple: women become pregnant, there is a point somewhere,
depending on medical technology, where a fetus becomes viable, and women give
birth to children. Post, at 955. This characterization of the issue thus allows
THE CHIEF JUSTICE quickly to discard the joint opinion's reliance argument by
asserting that "reproductive planning could take virtually immediate
account of" a decision overruling Roe. Post, at 956. (internal quotation
marks omitted).
THE CHIEF JUSTICE's narrow conception of individual liberty and stare
decisis leads him to propose the same standard of review proposed by the
plurality in Webster. States may regulate abortion procedures in ways
rationally related to a legitimate state interest. Williamson v. Lee Optical of
Oklahoma, Inc., 348
U.S. 483, 491 (1955); cf. Stanley v. Illinois, 405
U.S. 645, 651 -653 (1972). Post, at 966. THE [505 U.S. 833, 942] CHIEF JUSTICE then further
weakens the test by providing an insurmountable requirement for facial
challenges: Petitioners must "`show that no set of circumstances exists
under which the [provision] would be valid.'" Post, at 973, quoting Ohio
v. Akron Center for Reproductive Health, 497
U.S., at 514 . In short, in his view, petitioners must prove that the
statute cannot constitutionally be applied to anyone. Finally, in applying his
standard to the spousal-notification provision, THE CHIEF JUSTICE contends that
the record lacks any "hard evidence" to support the joint opinion's
contention that a "large fraction" of women who prefer not to notify
their husbands involve situations of battered women and unreported spousal
assault. Post, at 974, n. 2. Yet throughout the explication of his standard,
THE CHIEF JUSTICE never explains what hard evidence is, how large a fraction is
required, or how a battered women is supposed to pursue an as-applied
challenge.
Under his standard, States can ban abortion if that ban is rationally
related to a legitimate state interest - a standard which the United States
calls "deferential, but not toothless." Yet when pressed at oral
argument to describe the teeth, the best protection that the Solicitor General
could offer to women was that a prohibition, enforced by criminal penalties,
with no exception for the life of the mother, "could raise very serious
questions." Tr. of Oral Arg. 48. Perhaps, the Solicitor General offered,
the failure to include an exemption for the life of the mother would be
"arbitrary and capricious." Id., at 49. If, as THE CHIEF JUSTICE
contends, the undue burden test is made out of whole cloth, the so-called
"arbitrary and capricious" limit is the Solicitor General's "new
clothes."
Even if it is somehow "irrational" for a State to require a woman
to risk her life for her child, what protection is offered for women who become
pregnant through rape or incest? Is there anything arbitrary or capricious
about a [505 U.S. 833, 943]
State's prohibiting the sins of the father from being visited upon his
offspring? 12
But, we are reassured, there is always the protection of the democratic
process. While there is much to be praised about our democracy, our country,
since its founding, has recognized that there are certain fundamental liberties
that are not to be left to the whims of an election. A woman's right to
reproductive choice is one of those fundamental liberties. Accordingly, that
liberty need not seek refuge at the ballot box.
In one sense, the Court's approach is worlds apart from that of THE CHIEF
JUSTICE and JUSTICE SCALIA. And yet, in another sense, the distance between the
two approaches is short - the distance is but a single vote.
I am 83 years old. I cannot remain on this Court forever, and when I do step
down, the confirmation process for my successor well may focus on the issue
before us today. That, I regret, may be exactly where the choice between the
two worlds will be made.
[ Footnote 1 ] As I
shall explain, the joint opinion and I disagree on the appropriate standard of
review for abortion regulations. I do agree, however that the reasons advanced
by the joint opinion suffice to invalidate the spousal notification requirement
under a strict scrutiny standard.
[ Footnote 2 ] I
also join the Court's decision to uphold the medical emergency provision. As
the Court notes, its interpretation is consistent with the essential holding of
Roe that forbids a State from interfering with a woman's choice to undergo an
abortion procedure if continuing her pregnancy [505 U.S. 833, 926] would constitute a threat to
her health. Ante, at 880. As is apparent in my analysis below, however, this
exception does not render constitutional the provisions which I conclude do not
survive strict scrutiny.
[ Footnote 3 ] As
the joint opinion acknowledges, ante, at 857, this Court has recognized the
vital liberty interest of persons in refusing unwanted medical treatment.
Cruzan v. Director, Mo. Dept. of Health, 497
U.S. 261 (1990). Just as the Due Process Clause protects the deeply
personal decision of the individual to refuse medical treatment, it also must
protect the deeply personal decision to obtain medical treatment, including a
woman's decision to terminate a pregnancy.
[ Footnote 4 ] A
growing number of commentators are recognizing this point. See, e.g., L. Tribe,
American Constitutional Law 15-10, pp. 1353-1359 (2d ed. 1988); Siegel,
Reasoning from the Body: A Historical Perspective on Abortion Regulation and
Questions of Equal Protection, 44 Stan.L.Rev. 261, 350-380 (1992); Sunstein,
Neutrality in Constitutional Law (With Special Reference to Pornography,
Abortion, and Surrogacy), 92 Colum.L.Rev. 1, 31-44 (1992); MacKinnon,
Reflections on Sex Equality Under Law, 100 Yale L.J. 1281, 1308-1324 (1991);
cf. Rubenfeld, The Right of Privacy, 102 Harv.L.Rev. 737, 788-791 (1989)
(similar analysis under the rubric of privacy); MacKinnon, Reflections on Sex
Equality Under Law, 100 Yale L. J. 1281, 1308-1324 (1991).
[ Footnote 5 ] To
say that restrictions on a right are subject to strict scrutiny is not to say
that the right is absolute. Regulations can be upheld if they have no
significant impact on the woman's exercise of her right and are justified by
important state health objectives. See, e.g., Planned Parenthood of Central Mo.
v. Danforth, 428
U.S. 52, 65 -67, 79-81 (1976) (upholding requirements of a woman's written
consent and record-keeping). But the Court today reaffirms the essential
principle of Roe that a woman has the right "to choose to have an abortion
before viability and to obtain it without undue interference from the
State." Ante, at 846. Under Roe, any more than de minimis interference is
undue.
[ Footnote 6 ] The
joint opinion agrees with Roe's conclusion that viability occurs at 23 or 24
weeks at the earliest. Compare ante, at 860 with Roe v. Wade, 410
U.S. 113, 160 (1973).
[ Footnote 7 ]
While I do not agree with the joint opinion's conclusion that these provisions
should be upheld, the joint opinion has remained faithful to principles this
Court previously has announced in examining counseling provisions. For example,
the joint opinion concludes that the "information the State requires to be
made available to the woman" must be "truthful and not
misleading." Ante, at 882. Because the State's information must be "calculated
to inform the woman's free choice, not hinder [505 U.S. 833, 937] it," ante, at 877, the
measures must be designed to ensure that a woman's choice is "mature and
informed," ante,, at 883, not intimidated, imposed, or impelled. To this
end, when the State requires the provision of certain information, the State
may not alter the manner of presentation in order to inflict
"psychological abuse," ante,, at 893, designed to shock or unnerve a
woman seeking to exercise her liberty right. This, for example, would appear to
preclude a State from requiring a woman to view graphic literature or films
detailing the performance of an abortion operation. Just as a visual preview of
an operation to remove an appendix plays no part in a physician's securing
informed consent to an appendectomy, a preview of scenes appurtenant to any
major medical intrusion into the human body does not constructively inform the
decision of a woman of the State's interest in the preservation of the woman's
health or demonstrate the State's "profound respect for the life of the
unborn." Ante,, at 877.
[ Footnote 8 ] The
Court's decision in Hodgson v. Minnesota, 497
U.S. 417 (1990), validating a 48-hour waiting period for minors seeking an
abortion to permit parental involvement does not alter this conclusion. Here
the 24-hour delay is imposed on an adult woman. See id., at 449-450, n. 35; Ohio
v. Akron Center for Reproductive Health, Inc., 497
U.S. 502 , (1990). Moreover, the statute in Hodgson did not require any
delay once the minor obtained the affirmative consent of either a parent or the
court.
[ Footnote 9 ]
Because this information is so widely known, I am confident that a developed
record can be made to show that the 24-hour delay, in a large fraction of the
cases in which [the restriction] is relevant, . . . will operate as a
substantial obstacle to a woman's choice to undergo an abortion. Ante, at 895.
[ Footnote 10 ] The
judicial-bypass provision does not cure this violation. Hodgson is
distinguishable, since this case involves more than parental involvement or
approval - rather, the Pennsylvania law requires that the parent receive
information designed to discourage abortion in a face-to-face meeting with [505 U.S. 833, 939] the
physician. The bypass procedure cannot ensure that the parent would obtain the
information, since, in many instances, the parent would not even attend the
hearing. A State may not place any restriction on a young woman's right to an
abortion, however irrational, simply because it has provided a judicial bypass.
[ Footnote 11 ]
Obviously, I do not share The CHIEF JUSTICE's views of homosexuality as sexual
deviance. See Bowers, 478
U.S., at 202 -203, n. 2
[ Footnote 12 ]
JUSTICE SCALIA urges the Court to "get out of this area," post, at
1002, and leave questions regarding abortion entirely to the States, post, at
999-1002. Putting aside the fact that what he advocates is nothing short of an
abdication by the Court of its constitutional responsibilities, JUSTICE SCALIA
is uncharacteristically naive if he thinks that overruling Roe and holding that
restrictions on a woman's right to an abortion are subject only to rational
basis review will enable the Court henceforth to avoid reviewing
abortion-related issues. State efforts to regulate and prohibit abortion in a
post-Roe world undoubtedly would raise a host of distinct and important
constitutional questions meriting review by this Court. For example, does the
Eighth Amendment impose any limits on the degree or kind of punishment a State
can inflict upon physicians who perform, or women who undergo, abortions? What
effect would differences among States in their approaches to abortion have on a
woman's right to engage in interstate travel? Does the First Amendment permit
States that choose not to criminalize abortion to ban all advertising providing
information about where and how to obtain abortions?
CHIEF JUSTICE REHNQUIST, with whom JUSTICE WHITE, JUSTICE SCALIA, and
JUSTICE THOMAS join, concurring in the judgment in part and dissenting in part.
The joint opinion, following its newly minted variation on stare decisis,
retains the outer shell of Roe v. Wade, 410
U.S. 113 (1973), but beats a wholesale retreat from the substance of that
case. We believe that Roe was wrongly decided, and that it can and should be overruled
consistently with our traditional approach to stare decisis in constitutional
cases. We would adopt the approach of the plurality in Webster v. Reproductive
Health Services, 492
U.S. 490 (1989), and uphold the challenged provisions of the Pennsylvania
statute in their entirety.
In ruling on this litigation below, the Court of Appeals for the Third
Circuit first observed that "this appeal does not directly implicate Roe;
this case involves the regulation of abortions, rather than their outright
prohibition." 947 F.2d 682, 687 (1991). Accordingly, the court directed
its attention to the question of the standard of review for abortion regulations.
In attempting to settle on the correct standard, however, the court confronted
the confused state of this Court's abortion jurisprudence. After considering
the several opinions in Webster v. Reproductive Health Services, supra, and
Hodgson v. Minnesota, 497
U.S. 417 (1990), the Court of Appeals concluded that JUSTICE O'CONNOR's
"undue burden" test was controlling, as that was the narrowest ground
on which we had upheld recent abortion regulations. 947 F.2d, at 693-697
("`When a fragmented court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, the holding of the
Court may be viewed as that position taken by those Members who concurred in
the judgments on the narrowest grounds'" (quoting Marks v. United States, 430
U.S. 188, 193 (1977) (internal quotation marks omitted)). Applying this
standard, the Court of Appeals upheld all of the challenged regulations except
the one [505 U.S. 833, 945]
requiring a woman to notify her spouse of an intended abortion.
In arguing that this Court should invalidate each of the provisions at
issue, petitioners insist that we reaffirm our decision in Roe v. Wade, supra,
in which we held unconstitutional a Texas statute making it a crime to procure
an abortion except to save the life of the mother. 1 We agree with the
Court of Appeals that our decision in Roe is not directly implicated by the
Pennsylvania statute, which does not prohibit, but simply regulates, abortion.
But, as the Court of Appeals found, the state of our post-Roe decisional law
dealing with the regulation of abortion is confusing and uncertain, indicating
that a reexamination of that line of cases is in order. Unfortunately for those
who must apply this Court's decisions, the reexamination undertaken today
leaves the Court no less divided than beforehand. Although they reject the
trimester framework that formed the underpinning of Roe, Justices O'CONNOR,
KENNEDY, and SOUTER adopt a revised undue burden standard to analyze the
challenged regulations. We conclude, however, that such an outcome is an
unjustified constitutional compromise, one which leaves the Court in a position
to closely scrutinize all types of abortion regulations despite the fact that
it lacks the power to do so under the Constitution.
In Roe, the Court opined that the State does have an important and
legitimate interest in preserving and protecting the health of the pregnant
woman, . . . and that it has still another important and legitimate interest in
protecting [505 U.S. 833, 946]
the potentiality of human life. 410
U.S., at 162 (emphasis omitted). In the companion case of Doe v. Bolton, 410
U.S. 179 (1973), the Court referred to its conclusion in Roe "that a
pregnant woman does not have an absolute constitutional right to an abortion on
her demand." 410
U.S., at 189 . But while the language and holdings of these cases appeared
to leave States free to regulate abortion procedures in a variety of ways,
later decisions based on them have found considerably less latitude for such
regulations than might have been expected.
For example, after Roe, many States have sought to protect their young
citizens by requiring that a minor seeking an abortion involve her parents in
the decision. Some States have simply required notification of the parents,
while others have required a minor to obtain the consent of her parents. In a
number of decisions, however, the Court has substantially limited the States in
their ability to impose such requirements. With regard to parental notice
requirements, we initially held that a State could require a minor to notify
her parents before proceeding with an abortion. H. L. v. Matheson, 450
U.S. 398, 407 -410 (1981). Recently, however, we indicated that a State's
ability to impose a notice requirement actually depends on whether it requires
notice of one or both parents. We concluded that, although the Constitution
might allow a State to demand that notice be given to one parent prior to an
abortion, it may not require that similar notice be given to two parents,
unless the State incorporates a judicial bypass procedure in that two-parent
requirement. Hodgson v. Minnesota, supra.
We have treated parental consent provisions even more harshly. Three years
after Roe, we invalidated a Missouri regulation requiring that an unmarried
woman under the age of 18 obtain the consent of one of her parents before
proceeding with an abortion. We held that our abortion jurisprudence prohibited
the State from imposing such a "blanket provision . . . requiring the
consent of a parent." Planned Parenthood [505 U.S. 833, 947] of Central Mo. v. Danforth, 428
U.S. 52, 74 (1976). In Bellotti v. Baird, 443
U.S. 622 (1979), the Court struck down a similar Massachusetts parental
consent statute. A majority of the Court indicated, however, that a State could
constitutionally require parental consent if it alternatively allowed a
pregnant minor to obtain an abortion without parental consent by showing either
that she was mature enough to make her own decision or that the abortion would
be in her best interests. See id., at 643-644 (plurality opinion); id., at
656-657 (WHITE, J., dissenting). In light of Bellotti, we have upheld one
parental consent regulation which incorporated a judicial bypass option we
viewed as sufficient, see Planned Parenthood Assn. of Kansas City, Mo., Inc. v.
Ashcroft, 462
U.S. 476 (1983), but have invalidated another because of our belief that
the judicial procedure did not satisfy the dictates of Bellotti, see Akron v.
Akron Center for Reproductive Health, Inc., 462
U.S. 416, 439 -442 (1983). We have never had occasion, as we have in the
parental notice context, to further parse our parental consent Jurisprudence
into one-parent and two-parent components.
In Roe, the Court observed that certain States recognized the right of the
father to participate in the abortion decision in certain circumstances.
Because neither Roe nor Doe involved the assertion of any paternal right, the
Court expressly stated that the case did not disturb the validity of
regulations that protected such a right. Roe v. Wade, supra, at 165, n. 67. But
three years later, in Danforth, the Court extended its abortion jurisprudence
and held that a State could not require that a woman obtain the consent of her
spouse before proceeding with an abortion. Planned Parenthood of Central Mo. v.
Danforth, 428
U.S., at 69 -71.
States have also regularly tried to ensure that a woman's decision to have
an abortion is an informed and well-considered one. In Danforth, we upheld a
requirement that a woman sign a consent form prior to her abortion, and
observed that "it is desirable and imperative that [the decision] [505 U.S. 833, 948] be
made with full knowledge of its nature and consequences." Id., at 67.
Since that case, however, we have twice invalidated state statutes designed to
impart such knowledge to a woman seeking an abortion. In Akron, we held
unconstitutional a regulation requiring a physician to inform a woman seeking
an abortion of the status of her pregnancy, the development of her fetus, the
date of possible viability, the complications that could result from an
abortion, and the availability of agencies providing assistance and information
with respect to adoption and childbirth. Akron v. Akron Center for Reproductive
Health, supra, 462
U.S., at 442 -445. More recently, in Thornburgh v. American College of
Obstetricians and Gynecologists, 476
U.S. 747 (1986), we struck down a more limited Pennsylvania regulation
requiring that a woman be informed of the risks associated with the abortion
procedure and the assistance available to her if she decided to proceed with
her pregnancy, because we saw the compelled information as "the antithesis
of informed consent." Id., at 764. Even when a State has sought only to
provide information that, in our view, was consistent with the Roe framework,
we concluded that the State could not require that a physician furnish the
information, but instead had to alternatively allow nonphysician counselors to
provide it. Akron v. Akron Center for Reproductive Health, 462
U.S., at 448 -449. In Akron as well, we went further and held that a State
may not require a physician to wait 24 hours to perform an abortion after
receiving the consent of a woman. Although the State sought to ensure that the
woman's decision was carefully considered, the Court concluded that the
Constitution forbade the State from imposing any sort of delay. Id., at
449-451.
We have not allowed States much leeway to regulate even the actual abortion
procedure. Although a State can require that second-trimester abortions be
performed in outpatient clinics, see Simopoulos v. Virginia, 462
U.S. 506 (1983), we concluded in Akron and Ashcroft that a State could not [505 U.S. 833, 949] require
that such abortions be performed only in hospitals. See Akron v. Akron Center
for Reproductive Health, supra, 462
U.S., at 437 -439; Planned Parenthood Assn. of Kansas City, Mo., Inc. v.
Ashcroft, supra, 462
U.S., at 481 -482. Despite the fact that Roe expressly allowed regulation
after the first trimester in furtherance of maternal health, "`present
medical knowledge,'" in our view, could not justify such a hospitalization
requirement under the trimester framework. Akron v. Akron Center for
Reproductive Health, supra, at 437 (quoting Roe v. Wade, supra, at 163). And in
Danforth, the Court held that Missouri could not outlaw the saline amniocentesis
method of abortion, concluding that the Missouri Legislature had "failed
to appreciate and to consider several significant facts" in making its
decision. 428
U.S., at 77 .
Although Roe allowed state regulation after the point of viability to
protect the potential life of the fetus, the Court subsequently rejected
attempts to regulate in this manner. In Colautti v. Franklin, 439
U.S. 379 (1979), the Court struck down a statute that governed the
determination of viability. Id., at 390-397. In the process, we made clear that
the trimester framework incorporated only one definition of viability - ours -
as we forbade States from deciding that a certain objective indicator -
"be it weeks of gestation or fetal weight or any other single factor"
- should govern the definition of viability. Id., at 389. In that same case, we
also invalidated a regulation requiring a physician to use the abortion
technique offering the best chance for fetal survival when performing
postviability abortions. See id., at 397-401; see also Thornburgh v. American
College of Obstetricians and Gynecologists, supra, at 768-769 (invalidating a
similar regulation). In Thornburgh, the Court struck down Pennsylvania's
requirement that a second physician be present at postviability abortions to
help preserve the health of the unborn child, on the ground that it did not
incorporate a sufficient medical emergency exception. Id., at 769-771.
Regulations governing the treatment of aborted fetuses have [505 U.S. 833, 950] met a
similar fate. In Akron, we invalidated a provision requiring physicians
performing abortions to "insure that the remains of the unborn child are
disposed of in a humane and sanitary manner." 462
U.S., at 451 (internal quotation marks omitted).
Dissents in these cases expressed the view that the Court was expanding upon
Roe in imposing ever greater restrictions on the States. See Thornburgh v.
American College of Obstetricians and Gynecologists, 476
U.S., at 783 (Burger, C.J., dissenting) ("The extent to which the
Court has departed from the limitations expressed in Roe is readily apparent");
id., at 814 (WHITE, J., dissenting) ("[T]he majority indiscriminately
strikes down statutory provisions that in no way contravene the right
recognized in Roe"). And, when confronted with State regulations of this
type in past years, the Court has become increasingly more divided: The three
most recent abortion cases have not commanded a Court opinion. See Ohio v.
Akron Center for Reproductive Health, 497
U.S. 502 (1990); Hodgson v. Minnesota, 497
U.S. 417 (1990); Webster v. Reproductive Health Services, 492
U.S. 490 (1989).
The task of the Court of Appeals in the present case was obviously
complicated by this confusion and uncertainty. Following Marks v. United
States, 430
U.S. 188 (1977), it concluded that, in light of Webster and Hodgson, the
strict scrutiny standard enunciated in Roe was no longer applicable, and that
the "undue burden" standard adopted by JUSTICE O'CONNOR was the
governing principle. This state of confusion and disagreement warrants
reexamination of the "fundamental right" accorded to a woman's
decision to abort a fetus in Roe, with its concomitant requirement that any state
regulation of abortion survive "strict scrutiny." See Payne v.
Tennessee, 501
U.S. 808, 827 -828 (1991) (observing that reexamination of constitutional
decisions is appropriate when those decisions have generated uncertainty and
failed to provide clear guidance, because "correction through legislative [505 U.S. 833, 951] action
is practically impossible" (internal quotation marks omitted)); Garcia v. San
Antonio Metropolitan Transit Authority, 469
U.S. 528, 546 -547, 557 (1985).
We have held that a liberty interest protected under the Due Process Clause
of the Fourteenth Amendment will be deemed fundamental if it is "implicit
in the concept of ordered liberty." Palko v. Connecticut, 302
U.S. 319, 325 (1937). Three years earlier, in Snyder v. Massachusetts, 291
U.S. 97 (1934), we referred to a "principle of justice so rooted in
the traditions and conscience of our people as to be ranked as
fundamental." Id., at 105; see also Michael H. v. Gerald D., 491
U.S. 110, 122 (1989) (plurality opinion) (citing the language from Snyder).
These expressions are admittedly not precise, but our decisions implementing
this notion of "fundamental" rights do not afford any more elaborate
basis on which to base such a classification.
In construing the phrase "liberty" incorporated in the Due Process
Clause of the Fourteenth Amendment, we have recognized that its meaning extends
beyond freedom from physical restraint. In Pierce v. Society of Sisters, 268
U.S. 510 (1925), we held that it included a parent's right to send a child
to private school; in Meyer v. Nebraska, 262
U.S. 390 (1923), we held that it included a right to teach a foreign
language in a parochial school. Building on these cases, we have held that the
term "liberty" includes a right to marry, Loving v. Virginia, 388
U.S. 1 (1967); a right to procreate, Skinner v. Oklahoma ex rel.
Williamson, 316
U.S. 535 (1942); and a right to use contraceptives, Griswold v.
Connecticut, 381
U.S. 479 (1965); Eisenstadt v. Baird, 405
U.S. 438 (1972). But a reading of these opinions makes clear that they do
not endorse any all-encompassing "right of privacy."
In Roe v. Wade, the Court recognized a "guarantee of personal privacy"
which "is broad enough to encompass a woman's decision whether or not to
terminate her pregnancy." 410
U.S., at 152 -153. We are now of the view that, in terming this right
fundamental, the Court in Roe read the earlier [505 U.S. 833, 952] opinions upon which it based
its decision much too broadly. Unlike marriage, procreation, and contraception,
abortion "involves the purposeful termination of a potential life."
Harris v. McRae, 448
U.S. 297, 325 (1980). The abortion decision must therefore be recognized as
sui generis, different in kind from the others that the Court has protected
under the rubric of personal or family privacy and autonomy. Thornburgh v.
American College of Obstetricians and Gynecologists, supra, 476
U.S., at 792 (WHITE, J., dissenting). One cannot ignore the fact that a
woman is not isolated in her pregnancy, and that the decision to abort
necessarily involves the destruction of a fetus. See Michael H. v. Gerald D.,
supra, 491
U.S., at 124 , n. 4 (To look "at the act which is assertedly the
subject of a liberty interest in isolation from its effect upon other people
[is] like inquiring whether there is a liberty interest in firing a gun where
the case at hand happens to involve its discharge into another person's
body").
Nor do the historical traditions of the American people support the view
that the right to terminate one's pregnancy is "fundamental." The
common law which we inherited from England made abortion after
"quickening" an offense. At the time of the adoption of the
Fourteenth Amendment, statutory prohibitions or restrictions on abortion were
commonplace; in 1868, at least 28 of the then-37 States and 8 Territories had
statutes banning or limiting abortion. J. Mohr, Abortion in America 200 (1978).
By the turn of the century, virtually every State had a law prohibiting or restricting
abortion on its books. By the middle of the present century, a liberalization
trend had set in. But 21 of the restrictive abortion laws in effect in 1868
were still in effect in 1973 when Roe was decided, and an overwhelming majority
of the States prohibited abortion unless necessary to preserve the life or
health of the mother. Roe v. Wade, 410
U.S., at 139 -140; id. at 176-177, n. 2 (REHNQUIST, J., dissenting). On
this record, it can scarcely be said that any deeply rooted tradition of
relatively unrestricted abortion in our history [505 U.S. 833, 953] supported the classification
of the right to abortion as "fundamental" under the Due Process
Clause of the Fourteenth Amendment.
We think, therefore, both in view of this history and of our decided cases
dealing with substantive liberty under the Due Process Clause, that the Court
was mistaken in Roe when it classified a woman's decision to terminate her
pregnancy as a "fundamental right" that could be abridged only in a
manner which withstood "strict scrutiny." In so concluding, we repeat
the observation made in Bowers v. Hardwick, 478
U.S. 186 (1986):
"Nor are we inclined to take a
more expansive view of our authority to discover new fundamental rights
imbedded in the Due Process Clause. The Court is most vulnerable and comes
nearest to illegitimacy when it deals with judge-made constitutional law having
little or no cognizable roots in the language or design of the
Constitution." Id., at 194.
We believe that the sort of constitutionally imposed
abortion code of the type illustrated by our decisions following Roe is
inconsistent "with the notion of a Constitution cast in general terms, as
ours is, and usually speaking in general principles, as ours does."
Webster v. Reproductive Health Services, 492
U.S., at 518 (plurality opinion). The Court in Roe reached too far when it
analogized the right to abort a fetus to the rights involved in Pierce, Meyer,
Loving, and Griswold, and thereby deemed the right to abortion fundamental.
The joint opinion of Justices O'CONNOR, KENNEDY, and SOUTER cannot bring
itself to say that Roe was correct as an original matter, but the authors are
of the view that the immediate question is not the soundness of Roe's
resolution of the issue, but the precedential force that must be accorded to
its holding. Ante, at 871. Instead of claiming that Roe [505 U.S. 833, 954] was correct as a matter
of original constitutional interpretation, the opinion therefore contains an
elaborate discussion of stare decisis. This discussion of the principle of
stare decisis appears to be almost entirely dicta, because the joint opinion
does not apply that principle in dealing with Roe. Roe decided that a woman had
a fundamental right to an abortion. The joint opinion rejects that view. Roe
decided that abortion regulations were to be subjected to "strict
scrutiny," and could be justified only in the light of "compelling
state interests." The joint opinion rejects that view. Ante, at 872-873;
see Roe v. Wade, supra, 410
U.S., at 162 -164. Roe analyzed abortion regulation under a rigid trimester
framework, a framework which has guided this Court's decisionmaking for 19
years. The joint opinion rejects that framework. Ante, at 873.
Stare decisis is defined in Black's Law Dictionary as meaning "to abide
by, or adhere to, decided cases." Black's Law Dictionary 1406 (6th ed.
1990). Whatever the "central holding" of Roe that is left after the
joint opinion finishes dissecting it is surely not the result of that
principle. While purporting to adhere to precedent, the joint opinion instead
revises it. Roe continues to exist, but only in the way a storefront on a
western movie set exists: a mere facade to give the illusion of reality.
Decisions following Roe, such as Akron v. Akron Center for Reproductive Health,
Inc., 462
U.S. 416 (1983), and Thornburgh v. American College of Obstetricians and
Gynecologists, 476
U.S. 747 (1986), are frankly overruled in part under the "undue
burden" standard expounded in the joint opinion. Ante at 881-884.
In our view, authentic principles of stare decisis do not require that any portion
of the reasoning in Roe be kept intact. "Stare decisis is not . . . a
universal, inexorable command," especially in cases involving the
interpretation of the Federal Constitution. Burnet v. Coronado Oil & Gas
Co., 285
U.S. 393, 405 (1932) (Brandeis, J., dissenting). Erroneous decisions in
such constitutional cases are uniquely durable, because correction through
legislative action, save for [505
U.S. 833, 955] constitutional amendment, is impossible. It is
therefore our duty to reconsider constitutional interpretations that
"depar[t] from a proper understanding" of the Constitution. Garcia v.
San Antonio Metropolitan Transit Authority, 469
U.S., at 557 ; see United States v. Scott, 437
U.S. 82, 101 (1978) ("`[I]n cases involving the Federal Constitution,
. . . [t]he Court bows to the lessons of experience and the force of better
reasoning, recognizing that the process of trial and error, so fruitful in the
physical sciences, is appropriate also in the judicial function'" (quoting
Burnet v. Coronado Oil & Gas Co., supra, at 406-408 (Brandeis, J.,
dissenting))); Smith v. Allwright, 321
U.S. 649, 665 (1944). Our constitutional watch does not cease merely
because we have spoken before on an issue; when it becomes clear that a prior
constitutional interpretation is unsound, we are obliged to reexamine the question.
See, e.g., West Virginia Bd. of Ed. v. Barnette, 319
U.S. 624, 642 (1943); Erie R. Co. v. Tompkins, 304
U.S. 64, 74 -78 (1938).
The joint opinion discusses several stare decisis factors which, it asserts,
point toward retaining a portion of Roe. Two of these factors are that the main
"factual underpinning" of Roe has remained the same, and that its
doctrinal foundation is no weaker now than it was in 1973. Ante, at 857-860. Of
course, what might be called the basic facts which gave rise to Roe have
remained the same - women become pregnant, there is a point somewhere,
depending on medical technology, where a fetus becomes viable, and women give
birth to children. But this is only to say that the same facts which gave rise
to Roe will continue to give rise to similar cases. It is not a reason, in and
of itself, why those cases must be decided in the same incorrect manner as was
the first case to deal with the question. And surely there is no requirement,
in considering whether to depart from stare decisis in a constitutional case, that
a decision be more wrong now than it was at the time it was rendered. If that
were true, the most outlandish constitutional decision could survive [505 U.S. 833, 955] forever,
based simply on the fact that it was no more outlandish later than it was when
originally rendered.
Nor does the joint opinion faithfully follow this alleged requirement. The
opinion frankly concludes that Roe and its progeny were wrong in failing to
recognize that the State's interests in maternal health and in the protection of
unborn human life exist throughout pregnancy. Ante, at 871-873. But there is no
indication that these components of Roe are any more incorrect at this juncture
than they were at its inception.
The joint opinion also points to the reliance interests involved in this
context in its effort to explain why precedent must be followed for precedent's
sake. Certainly it is true that, where reliance is truly at issue, as in the
case of judicial decisions that have formed the basis for private decisions,
"[c]onsiderations in favor of stare decisis are at their acme." Payne
v. Tennessee, 501
U.S., at 828 . But, as the joint opinion apparently agrees, ante, at
855-856, any traditional notion of reliance is not applicable here. The Court
today cuts back on the protection afforded by Roe, and no one claims that this
action defeats any reliance interest in the disavowed trimester framework.
Similarly, reliance interests would not be diminished were the Court to go
further and acknowledge the full error of Roe, as "reproductive planning
could take virtually immediate account of" this action. Ante, at 856.
The joint opinion thus turns to what can only be described as an
unconventional - and unconvincing - notion of reliance, a view based on the
surmise that the availability of abortion since Roe has led to "two
decades of economic and social developments" that would be undercut if the
error of Roe were recognized. Ante, at 856. The joint opinion's assertion of
this fact is undeveloped, and totally conclusory. In fact, one cannot be sure
to what economic and social developments the opinion is referring. Surely it is
dubious to suggest that women have reached their "places in society"
in [505 U.S. 833, 957] reliance
upon Roe, rather than as a result of their determination to obtain higher
education and compete with men in the job market, and of society's increasing
recognition of their ability to fill positions that were previously thought to
be reserved only for men. Ante, at 856.
In the end, having failed to put forth any evidence to prove any true
reliance, the joint opinion's argument is based solely on generalized
assertions about the national psyche, on a belief that the people of this
country have grown accustomed to the Roe decision over the last 19 years and
have "ordered their thinking and living around" it. Ante, at 856. As
an initial matter, one might inquire how the joint opinion can view the
"central holding" of Roe as so deeply rooted in our constitutional
culture when it so casually uproots and disposes of that same decision's
trimester framework. Furthermore, at various points in the past, the same could
have been said about this Court's erroneous decisions that the Constitution
allowed "separate but equal" treatment of minorities, see Plessy v.
Ferguson, 163
U.S. 537 (1896), or that "liberty" under the Due Process Clause
protected "freedom of contract," see Adkins v. Children's Hospital of
District of Columbia, 261
U.S. 525 (1923); Lochner v. New York, 198
U.S. 45 (1905). The "separate but equal" doctrine lasted 58 years
after Plessy, and Lochner's protection of contractual freedom lasted 32 years.
However, the simple fact that a generation or more had grown used to these
major decisions did not prevent the Court from correcting its errors in those
cases, nor should it prevent us from correctly interpreting the Constitution
here. See Brown v. Board of Education, 347
U.S. 483 (1954) (rejecting the "separate but equal" doctrine);
West Coast Hotel Co. v. Parrish, 300
U.S. 379 (1937) (overruling Adkins v. Children's Hospital, supra, in
upholding Washington's minimum wage law).
Apparently realizing that conventional stare decisis principles do not
support its position, the joint opinion advances a belief that retaining a
portion of Roe is necessary to protect [505 U.S. 833, 958] the "legitimacy" of
this Court. Ante, at 861-869. Because the Court must take care to render
decisions "grounded truly in principle," and not simply as political
and social compromises, ante, at 865, the joint opinion properly declares it to
be this Court's duty to ignore the public criticism and protest that may arise
as a result of a decision. Few would quarrel with this statement, although it
may be doubted that Members of this Court, holding their tenure as they do
during constitutional "good behavior," are at all likely to be
intimidated by such public protests.
But the joint opinion goes on to state that, when the Court "resolve[s]
the sort of intensely divisive controversy reflected in Roe and those rare,
comparable cases," its decision is exempt from reconsideration under
established principles of stare decisis in constitutional cases. Ante, at 866.
This is so, the joint opinion contends, because, in those "intensely
divisive" cases, the Court has call[ed] the contending sides of a national
controversy to end their national division by accepting a common mandate rooted
in the Constitution, and must therefore take special care not to be perceived
as "surrender[ing] to political pressure" and continued opposition.
Ante, at 866,867. This is a truly novel principle, one which is contrary to
both the Court's historical practice and to the Court's traditional willingness
to tolerate criticism of its opinions. Under this principle, when the Court has
ruled on a divisive issue, it is apparently prevented from overruling that
decision for the sole reason that it was incorrect, unless opposition to the
original decision has died away.
The first difficulty with this principle lies in its assumption that cases
that are "intensely divisive" can be readily distinguished from those
that are not. The question of whether a particular issue is "intensely
divisive" enough to qualify for special protection is entirely subjective
and dependent on the individual assumptions of the Members of this Court. In
addition, because the Court's duty is to ignore public opinion and criticism on
issues that come before it, its Members are [505 U.S. 833, 959] in perhaps the worst position to
judge whether a decision divides the Nation deeply enough to justify such
uncommon protection. Although many of the Court's decisions divide the populace
to a large degree, we have not previously on that account shied away from
applying normal rules of stare decisis when urged to reconsider earlier
decisions. Over the past 21 years, for example, the Court has overruled in
whole or in part 34 of its previous constitutional decisions. See Payne v.
Tennessee, supra, at 828-830, and n. 1 (listing cases).
The joint opinion picks out and discusses two prior Court rulings that it
believes are of the "intensely divisive" variety, and concludes that
they are of comparable dimension to Roe. Ante, at 861-864 (discussing Lochner
v. New York, supra, and Plessy v. Ferguson, supra). It appears to us very odd
indeed that the joint opinion chooses as benchmarks two cases in which the
Court chose not to adhere to erroneous constitutional precedent, but instead
enhanced its stature by acknowledging and correcting its error, apparently in
violation of the joint opinion's "legitimacy" principle. See West
Coast Hotel Co. v. Parrish, supra; Brown v. Board of Education, supra. One
might also wonder how it is that the joint opinion puts these, and not others,
in the "intensely divisive" category, and how it assumes that these
are the only two lines of cases of comparable dimension to Roe. There is no
reason to think that either Plessy or Lochner produced the sort of public
protest when they were decided that Roe did. There were undoubtedly large
segments of the bench and bar who agreed with the dissenting views in those
cases, but surely that cannot be what the Court means when it uses the term
"intensely divisive," or many other cases would have to be added to
the list. In terms of public protest, however, Roe, so far as we know, was
unique. But just as the Court should not respond to that sort of protest by
retreating from the decision simply to allay the concerns of the protesters, it
should likewise not respond by determining to adhere to the [505 U.S. 833, 960] decision
at all costs, lest it seem to be retreating under fire. Public protests should
not alter the normal application of stare decisis, lest perfectly lawful
protest activity be penalized by the Court itself.
Taking the joint opinion on its own terms, we doubt that its distinction
between Roe, on the one hand, and Plessy and Lochner, on the other, withstands
analysis. The joint opinion acknowledges that the Court improved its stature by
overruling Plessy in Brown on a deeply divisive issue. And our decision in West
Coast Hotel, which overruled Adkins v. Children's Hospital, supra, and Lochner,
was rendered at a time when Congress was considering President Franklin
Roosevelt's proposal to "reorganize" this Court and enable him to
name six additional Justices in the event that any Member of the Court over the
age of 70 did not elect to retire. It is difficult to imagine a situation in
which the Court would face more intense opposition to a prior ruling than it
did at that time, and, under the general principle proclaimed in the joint
opinion, the Court seemingly should have responded to this opposition by
stubbornly refusing to reexamine the Lochner rationale, lest it lose legitimacy
by appearing to "overrule under fire." Ante, at 867.
The joint opinion agrees that the Court's stature would have been seriously
damaged if, in Brown and West Coast Hotel, it had dug in its heels and refused
to apply normal principles of stare decisis to the earlier decisions. But the
opinion contends that the Court was entitled to overrule Plessy and Lochner in
those cases, despite the existence of opposition to the original decisions,
only because both the Nation and the Court had learned new lessons in the
interim. This is at best a feebly supported post hoc rationalization for those
decisions.
For example, the opinion asserts that the Court could justifiably overrule
its decision in Lochner only because the Depression had convinced "most
people" that constitutional protection of contractual freedom contributed
to an economy [505 U.S. 833, 961]
that failed to protect the welfare of all. Ante, at 861. Surely
the joint opinion does not mean to suggest that people saw this Court's failure
to uphold minimum wage statutes as the cause of the Great Depression! In any
event, the Lochner Court did not base its rule upon the policy judgment that an
unregulated market was fundamental to a stable economy; it simply believed,
erroneously, that "liberty" under the Due Process Clause protected
the "right to make a contract." Lochner v. New York, 198
U.S., at 53 . Nor is it the case that the people of this Nation only
discovered the dangers of extreme laissez-faire economics because of the
Depression. State laws regulating maximum hours and minimum wages were in
existence well before that time. A Utah statute of that sort enacted in 1896
was involved in our decision in Holden v. Hardy, 169
U.S. 366 (1898), and other states followed suit shortly afterwards, see,
e.g., Muller v. Oregon, 208
U.S. 412 (1908); Bunting v. Oregon, 243
U.S. 426 (1917). These statutes were indeed enacted because of a belief on
the part of their sponsors that "freedom of contract" did not protect
the welfare of workers, demonstrating that that belief manifested itself more
than a generation before the Great Depression. Whether "most people"
had come to share it in the hard times of the 1930's is, insofar as anything
the joint opinion advances, entirely speculative. The crucial failing at that
time was not that workers were not paid a fair wage, but that there was no work
available at any wage.
When the Court finally recognized its error in West Coast Hotel, it did not
engage in the post hoc rationalization that the joint opinion attributes to it
today; it did not state that Lochner had been based on an economic view that
had fallen into disfavor, and that it therefore should be overruled. Chief
Justice Hughes, in his opinion for the Court, simply recognized what Justice
Holmes had previously recognized in his Lochner dissent, that "[t]he
Constitution does not speak of freedom of contract." West Coast Hotel Co.
v. Parrish, 300
U.S., at 391 ; Lochner v. New York, supra, at 75 (Holmes, [505 U.S. 833, 962] J.,
dissenting) ("[A] constitution is not intended to embody a particular
economic theory, whether of paternalism and the organic relation of the citizen
to the State or of laissez faire"). Although the Court did acknowledge in
the last paragraph of its opinion the state of affairs during the then-current
Depression, the theme of the opinion is that the Court had been mistaken as a
matter of constitutional law when it embraced "freedom of contract"
32 years previously.
The joint opinion also agrees that the Court acted properly in rejecting the
doctrine of "separate but equal" in Brown. In fact, the opinion lauds
Brown in comparing it to Roe. Ante, at 867. This is strange, in that, under the
opinion's "legitimacy" principle, the Court would seemingly have been
forced to adhere to its erroneous decision in Plessy because of its "intensely
divisive" character. To us, adherence to Roe today under the guise of
"legitimacy" would seem to resemble more closely adherence to Plessy
on the same ground. Fortunately, the Court did not choose that option in Brown,
and instead frankly repudiated Plessy. The joint opinion concludes that such
repudiation was justified only because of newly discovered evidence that
segregation had the effect of treating one race as inferior to another. But it
can hardly be argued that this was not urged upon those who decided Plessy, as
JUSTICE Harlan observed in his dissent that the law at issue "puts the
brand of servitude and degradation upon a large class of our fellow-citizens,
our equals before the law." Plessy v. Ferguson, 163
U.S., at 562 . It is clear that the same arguments made before the Court in
Brown were made in Plessy as well. The Court in Brown simply recognized, as
Justice Harlan had recognized beforehand, that the Fourteenth Amendment does
not permit racial segregation. The rule of Brown is not tied to popular opinion
about the evils of segregation; it is a judgment that the Equal Protection
Clause does not permit racial segregation, no matter whether the public might
come to believe that it is beneficial. On that ground it stands, and on that
ground [505 U.S. 833, 963] alone
the Court was justified in properly concluding that the Plessy Court had erred.
There is also a suggestion in the joint opinion that the propriety of
overruling a "divisive" decision depends in part on whether
"most people" would now agree that it should be overruled. Either the
demise of opposition or its progression to substantial popular agreement
apparently is required to allow the Court to reconsider a divisive decision.
How such agreement would be ascertained, short of a public opinion poll, the
joint opinion does not say. But surely even the suggestion is totally at war
with the idea of "legitimacy" in whose name it is invoked. The
Judicial Branch derives its legitimacy not from following public opinion, but
from deciding by its best lights whether legislative enactments of the popular
branches of Government comport with the Constitution. The doctrine of stare
decisis is an adjunct of this duty, and should be no more subject to the
vagaries of public opinion than is the basic judicial task.
There are other reasons why the joint opinion's discussion of legitimacy is
unconvincing, as well. In assuming that the Court is perceived as
"surrender[ing] to political pressure" when it overrules a
controversial decision, ante, at 867, the joint opinion forgets that there are
two sides to any controversy. The joint opinion asserts that, in order to
protect its legitimacy, the Court must refrain from overruling a controversial
decision lest it be viewed as favoring those who oppose the decision. But a
decision to adhere to prior precedent is subject to the same criticism, for, in
such a case, one can easily argue that the Court is responding to those who
have demonstrated in favor of the original decision. The decision in Roe has
engendered large demonstrations, including repeated marches on this Court and
on Congress, both in opposition to and in support of that opinion. A decision
either way on Roe can therefore be perceived as favoring one group or the
other. But this perceived dilemma arises only if one assumes, as the joint
opinion does, that the Court [505
U.S. 833, 964] should make its decisions with a view toward
speculative public perceptions. If one assumes instead, as the Court surely did
in both Brown and West Coast Hotel, that the Court's legitimacy is enhanced by
faithful interpretation of the Constitution irrespective of public opposition,
such self-engendered difficulties may be put to one side.
Roe is not this Court's only decision to generate conflict. Our decisions in
some recent capital cases, and in Bowers v. Hardwick, 478
U.S. 186 (186), have also engendered demonstrations in opposition. The
joint opinion's message to such protesters appears to be that they must cease
their activities in order to serve their cause, because their protests will
only cement in place a decision which, by normal standards of stare decisis,
should be reconsidered. Nearly a century ago, Justice David J. Brewer of this
Court, in an article discussing criticism of its decisions, observed that
"many criticisms may be, like their authors, devoid of good taste, but
better all sorts of criticism than no criticism at all." Justice Brewer on
"The Nation's Anchor," 57 Albany L.J. 166, 169 (1898). This was good
advice to the Court then, as it is today. Strong and often misguided criticism
of a decision should not render the decision immune from reconsideration, lest
a fetish for legitimacy penalize freedom of expression.
The end result of the joint opinion's paeans of praise for legitimacy is the
enunciation of a brand new standard for evaluating state regulation of a
woman's right to abortion - the "undue burden" standard. As indicated
above, Roe v. Wade adopted a "fundamental right" standard under which
state regulations could survive only if they met the requirement of
"strict scrutiny." While we disagree with that standard, it at least
had a recognized basis in constitutional law at the time Roe was decided. The
same cannot be said for the "undue burden" standard, which is created
largely out of whole cloth by the authors of the joint opinion. It is a standard
which even today does not command the support of a majority of this Court. And
it will not, we believe, result [505
U.S. 833, 965] in the sort of "simple limitation,"
easily applied, which the joint opinion anticipates. Ante, at 855. In sum, it
is a standard which is not built to last.
In evaluating abortion regulations under that standard, judges will have to
decide whether they place a "substantial obstacle" in the path of a
woman seeking an abortion. Ante at 877. In that this standard is based even
more on a judge's subjective determinations than was the trimester framework,
the standard will do nothing to prevent "judges from roaming at large in
the constitutional field," guided only by their personal views. Griswold v.
Connecticut, 381
U.S., at 502 (Harlan, J., concurring in judgment). Because the undue burden
standard is plucked from nowhere, the question of what is a "substantial
obstacle" to abortion will undoubtedly engender a variety of conflicting
views. For example, in the very matter before us now, the authors of the joint
opinion would uphold Pennsylvania's 24-hour waiting period, concluding that a
"particular burden" on some women is not a substantial obstacle.
Ante, at 887. But the authors would at the same time strike down Pennsylvania's
spousal notice provision, after finding that, in a "large fraction"
of cases, the provision will be a substantial obstacle. Ante, at 895. And,
while the authors conclude that the informed consent provisions do not
constitute an "undue burden," JUSTICE STEVENS would hold that they
do. Ante, at 920-922.
Furthermore, while striking down the spousal notice regulation, the joint
opinion would uphold a parental consent restriction that certainly places very
substantial obstacles in the path of a minor's abortion choice. The joint
opinion is forthright in admitting that it draws this distinction based on a
policy judgment that parents will have the best interests of their children at
heart, while the same is not necessarily true of husbands as to their wives.
Ante, at 895. This may or may not be a correct judgment, but it is
quintessentially a legislative one. The "undue burden" inquiry does
not in any way supply the distinction between parental consent and [505 U.S. 833, 966] spousal
consent which the joint opinion adopts. Despite the efforts of the joint
opinion, the undue burden standard presents nothing more workable than the
trimester framework which it discards today. Under the guise of the
Constitution, this Court will still impart its own preferences on the States in
the form of a complex abortion code.
The sum of the joint opinion's labors in the name of stare decisis and
"legitimacy" is this: Roe v. Wade stands as a sort of judicial
Potemkin Village, which may be pointed out to passers-by as a monument to the
importance of adhering to precedent. But behind the facade, an entirely new
method of analysis, without any roots in constitutional law, is imported to
decide the constitutionality of state laws regulating abortion. Neither stare
decisis nor "legitimacy" are truly served by such an effort.
We have stated above our belief that the Constitution does not subject state
abortion regulations to heightened scrutiny. Accordingly, we think that the
correct analysis is that set forth by the plurality opinion in Webster. A
woman's interest in having an abortion is a form of liberty protected by the
Due Process Clause, but States may regulate abortion procedures in ways
rationally related to a legitimate state interest. Williamson v. Lee Optical of
Oklahoma, Inc., 348
U.S. 483, 491 (1955); cf. Stanley v. Illinois, 405
U.S. 645, 651 -65 (1972). With this rule in mind, we examine each of the
challenged provisions.
Section 3205 of the Act imposes certain requirements related to the informed
consent of a woman seeking an abortion. 18 Pa.Cons.Stat. 3205 (1990). Section
3205(a)(1) requires that the referring or performing physician must inform a
woman contemplating an abortion of (i) the nature of the procedure and the
risks and alternatives that a reasonable patient would find material; (ii) the
fetus' probable gestational [505
U.S. 833, 967] age; and (iii) the medical risks involved in
carrying her pregnancy to term. Section 3205(a)(2) requires a physician or a
nonphysician counselor to inform the woman that (i) the state health department
publishes free materials describing the fetus at different stages and listing
abortion alternatives; (ii) medical assistance benefits may be available for
prenatal, childbirth, and neonatal care; and (iii) the child's father is liable
for child support. The Act also imposes a 24-hour waiting period between the
time that the woman receives the required information and the time that the
physician is allowed to perform the abortion. See Appendix to opinion of
O'CONNOR, KENNEDY, and SOUTER, JJ., ante, at 902-904.
This Court has held that it is certainly within the province of the States
to require a woman's voluntary and informed consent to an abortion. See
Thornburgh v. American College of Obstetricians and Gynecologists, 476
U.S., at 760 . Here, Pennsylvania seeks to further its legitimate interest
in obtaining informed consent by ensuring that each woman is aware not only of
the reasons for having an abortion, but also of the risks associated with an
abortion and the availability of assistance that might make the alternative of
normal childbirth more attractive than it might otherwise appear. Id., at
798-799 (WHITE, J., dissenting).
We conclude that this provision of the statute is rationally related to the
State's interest in assuring that a woman's consent to an abortion be a fully
informed decision.
Section 3205(a)(1) requires a physician to disclose certain information
about the abortion procedure and its risks and alternatives. This requirement
is certainly no large burden, as the Court of Appeals found that the record
shows that the clinics, without exception, insist on providing this information
to women before an abortion is performed. 947 F.2d, at 703. We are of the view
that this information "clearly is related to maternal health and to the
State's legitimate purpose in requiring informed consent." Akron v. [505 U.S. 833, 968] Akron
Center for Reproductive Health, Inc., 462
U.S., at 446 . An accurate description of the gestational age of the fetus
and of the risks involved in carrying a child to term helps to further both
those interests and the State's legitimate interest in unborn human life. See
id., at 445-446, n. 37 (required disclosure of gestational age of the fetus
"certainly is not objectionable"). Although petitioners contend that
it is unreasonable for the State to require that a physician, as opposed to a
nonphysician counselor, disclose this information, we agree with the Court of
Appeals that a State may rationally decide that physicians are better qualified
than counselors to impart this information and answer questions about the
medical aspects of the available alternatives. 947 F.2d, at 704.
Section 3205(a)(2) compels the disclosure, by a physician or a counselor, of
information concerning the availability of paternal child support and
state-funded alternatives if the woman decides to proceed with her pregnancy.
Here again, the Court of Appeals observed that the record indicates that most
clinics already require that a counselor consult in person with the woman about
alternatives to abortion before the abortion is performed. Id., at 704-705. And
petitioners do not claim that the information required to be disclosed by
statute is in any way false or inaccurate; indeed, the Court of Appeals found
it to be "relevant, accurate, and noninflammatory." Id., at 705. We
conclude that this required presentation of "balanced information" is
rationally related to the State's legitimate interest in ensuring that the
woman's consent is truly informed, Thornburgh v. American College of
Obstetricians and Gynecologists, 476
U.S., at 830 (O'CONNOR, J., dissenting), and in addition furthers the
State's interest in preserving unborn life. That the information might create
some uncertainty and persuade some women to forgo abortions does not lead to
the conclusion that the Constitution forbids the provision of such information.
Indeed, it only demonstrates that this information might [505 U.S. 833, 969] very
well make a difference, and that it is therefore relevant to a woman's informed
choice. Cf. id., at 801 (WHITE, J., dissenting) ("[T]he ostensible
objective of Roe v. Wade is not maximizing the number of abortions, but
maximizing choice"). We acknowledge that, in Thornburgh, this Court struck
down informed consent requirements similar to the ones at issue here. See id.,
at 760-764. It is clear, however, that while the detailed framework of Roe led
to the Court's invalidation of those informational requirements, they
"would have been sustained under any traditional standard of judicial
review, . . . or for any other surgical procedure except abortion."
Webster v. Reproductive Health Services, 492
U.S., at 517 (plurality opinion) (citing Thornburgh v. American College of
Obstetricians and Gynecologists, 476
U.S., at 802 (WHITE, J., dissenting); id., at 783 (Burger, C.J.,
dissenting)). In light of our rejection of Roe's "fundamental right"
approach to this subject, we do not regard Thornburgh as controlling.
For the same reason, we do not feel bound to follow this Court's previous
holding that a State's 24-hour mandatory waiting period is unconstitutional.
See Akron v. Akron Center for Reproductive Health, Inc., 462
U.S., at 449 -451. Petitioners are correct that such a provision will
result in delays for some women that might not otherwise exist, therefore
placing a burden on their liberty. But the provision in no way prohibits
abortions, and the informed consent and waiting period requirements do not
apply in the case of a medical emergency. See 18 Pa. Cons.Stat. 3205(a), (b)
(1990). We are of the view that, in providing time for reflection and
reconsideration, the waiting period helps ensure that a woman's decision to
abort is a well-considered one, and reasonably furthers the State's legitimate
interest in maternal health and in the unborn life of the fetus. It "is
surely a small cost to impose to ensure that the woman's decision is
wellconsidered in light of its certain and irreparable consequences [505 U.S. 833, 970] on
fetal life, and the possible effects on her own. 462
U.S., at 474 (O'CONNOR, J., dissenting).
In addition to providing her own informed consent, before an unemancipated
woman under the age of 18 may obtain an abortion, she must either furnish the
consent of one of her parents or must opt for the judicial procedure that
allows her to bypass the consent requirement. Under the judicial bypass option,
a minor can obtain an abortion if a state court finds that she is capable of
giving her informed consent, and has indeed given such consent, or determines
that an abortion is in her best interests. Records of these court proceedings
are kept confidential. The Act directs the state trial court to render a
decision within three days of the woman's application, and the entire
procedure, including appeal to Pennsylvania Superior Court, is to last no
longer than eight business days. The parental consent requirement does not
apply in the case of a medical emergency. 18 Pa.Cons.Stat. 3206 (1990). See
Appendix to opinion of O'CONNOR, KENNEDY, and SOUTER, JJ., ante, at 904-906.
This provision is entirely consistent with this Court's previous decisions
involving parental consent requirements. See Planned Parenthood Ass. of Kansas
City, Mo., Inc. v. Ashcroft, 462
U.S. 476 (1983) (upholding parental consent requirement with a similar
judicial bypass option); Akron v. Akron Center for Reproductive Health, Inc.,
supra, at 439-440 (approving of parental consent statutes that include a
judicial bypass option allowing a pregnant minor to "demonstrate that she
is sufficiently mature to make the abortion decision herself or that, despite
her immaturity, an abortion would be in her best interests"); Bellotti v.
Baird, 443
U.S. 622 (1979).
We think it beyond dispute that a State has a strong and legitimate interest
in the welfare of its young citizens, whose immaturity, inexperience, and lack
of judgment may sometimes [505
U.S. 833, 971] impair their ability to exercise their rights
wisely. Hodgson v. Minnesota, 497
U.S., at 444 (opinion of STEVENS, J.). A requirement of parental consent to
abortion, like myriad other restrictions placed upon minors in other contexts,
is reasonably designed to further this important and legitimate state interest.
In our view, it is entirely rational and fair for the State to conclude that,
in most instances, the family will strive to give a lonely or even terrified
minor advice that is both compassionate and mature. Ohio v. Akron Center for
Reproductive Health, 497
U.S., at 520 (opinion of KENNEDY, J.); see also Planned Parenthood of
Central Mo. v. Danforth, 428
U.S., at 91 (Stewart, J., concurring) ("There can be little doubt that
the State furthers a constitutionally permissible end by encouraging an
unmarried pregnant minor to seek the help and advice of her parents in making
the very important decision whether or not to bear a child"). We thus
conclude that Pennsylvania's parental consent requirement should be upheld.
Section 3209 of the Act contains the spousal notification provision. It
requires that, before a physician may perform an abortion on a married woman,
the woman must sign a statement indicating that she has notified her husband of
her planned abortion. A woman is not required to notify her husband if (1) her
husband is not the father, (2) her husband, after diligent effort, cannot be
located, (3) the pregnancy is the result of a spousal sexual assault that has
been reported to the authorities, or (4) the woman has reason to believe that
notifying her husband is likely to result in the infliction of bodily injury
upon her by him or by another individual. In addition, a woman is exempted from
the notification requirement in the case of a medical emergency. 18
Pa.Cons.Stat. 3209 (1990). See Appendix to opinion of O'Connor, Kennedy, and
Souter, JJ., ante, at 908-909.
We first emphasize that Pennsylvania has not imposed a spousal consent
requirement of the type the Court struck down in Planned Parenthood of Central
Mo. v. Danforth, 428
U.S., at 67 -72. Missouri's spousal consent provision was invalidated in
that case because of the Court's view that it unconstitutionally granted to the
husband "a veto power exercisable for any reason whatsoever or for no
reason at all." Id., at 71. But the provision here involves a much less
intrusive requirement of spousal notification, not consent. Such a law
requiring only notice to the husband does not give any third party the legal
right to make the [woman's] decision for her, or to prevent her from obtaining
an abortion should she choose to have one performed. Hodgson v. Minnesota,
supra, at 496 (KENNEDY, J., concurring in judgment in part and dissenting in
part); see H.L. v. Matheson, 450
U.S., at 411 , n. 17. Danforth thus does not control our analysis.
Petitioners contend that it should, however; they argue that the real effect of
such a notice requirement is to give the power to husbands to veto a woman's abortion
choice. The District Court indeed found that the notification provision created
a risk that some woman who would otherwise have an abortion will be prevented
from having one. 947 F.2d, at 712. For example, petitioners argue, many
notified husbands will prevent abortions through physical force, psychological
coercion, and other types of threats. But Pennsylvania has incorporated
exceptions in the notice provision in an attempt to deal with these problems.
For instance, a woman need not notify her husband if the pregnancy is the
result of a reported sexual assault, or if she has reason to believe that she
would suffer bodily injury as a result of the notification. 18 Pa.Cons.Stat.
3209(b) (1990). Furthermore, because this is a facial challenge to the Act, it
is insufficient for petitioners to show that the notification provision
"might operate unconstitutionally under some conceivable set of
circumstances." United States v. Salerno, 481
U.S. 739, 745 (1987). Thus, it is not enough for petitioners [505 U.S. 833, 973] to
show that, in some "worst case" circumstances, the notice provision
will operate as a grant of veto power to husbands. Ohio v. Akron Center for
Reproductive Health, 497
U.S., at 514 . Because they are making a facial challenge to the provision,
they must "show that no set of circumstances exists under which the
[provision] would be valid." Ibid. (internal quotation marks omitted).
This they have failed to do. 2 [505 U.S. 833, 973]
The question before us is therefore whether the spousal notification
requirement rationally furthers any legitimate state interests. We conclude
that it does. First, a husband's interests in procreation within marriage and
in the potential life of his unborn child are certainly substantial ones. See
Planned Parenthood of Central Mo. v. Danforth, 428
U.S., at 69 ("We are not unaware of the deep and proper concern and
interest that a devoted and protective husband has in his wife's pregnancy and
in the growth and development of the fetus she is carrying"); id., at 93
(WHITE, J., concurring in part and dissenting in part); Skinner v. Oklahoma ex
rel. Williamson, 316
U.S., at 541 . The State itself has legitimate interests both in protecting
these interests of the father and in protecting the potential life of the
fetus, and the spousal notification requirement is reasonably related to
advancing those state interests. By providing that a husband will usually know
of his spouse's intent to have an abortion, the provision makes it more likely
that the husband will participate in deciding the fate of his unborn child, a
possibility that might otherwise have been denied him. This participation might
in some cases result in a decision to proceed with the pregnancy. As Judge
Alito observed in his dissent below, [t]he Pennsylvania legislature could have
rationally believed that some married women are initially inclined to obtain an
abortion without their husbands' knowledge because of perceived problems - such
as economic constraints, future plans, or the husbands' previously expressed [505 U.S. 833, 975] opposition
- that may be obviated by discussion prior to the abortion. 947 F.2d, at 726
(opinion concurring in part and dissenting in part).
The State also has a legitimate interest in promoting "the integrity of
the marital relationship." 18 Pa.Cons.Stat. 3209(a) (1990). This Court has
previously recognized "the importance of the marital relationship in our
society." Planned Parenthood of Central Mo. v. Danforth, supra, at 69. In
our view, the spousal notice requirement is a rational attempt by the State to
improve truthful communication between spouses and encourage collaborative
decisionmaking, and thereby fosters marital integrity. See Labine v. Vincent, 401
U.S. 532, 538 (1971) ("[T]he power to make rules to establish,
protect, and strengthen family life" is committed to the state
legislatures). Petitioners argue that the notification requirement does not
further any such interest; they assert that the majority of wives already
notify their husbands of their abortion decisions, and the remainder have
excellent reasons for keeping their decisions a secret. In the first case, they
argue, the law is unnecessary, and in the second case it will only serve to
foster marital discord and threats of harm. Thus, petitioners see the law as a
totally irrational means of furthering whatever legitimate interest the State
might have. But, in our view, it is unrealistic to assume that every
husband-wife relationship is either (1) so perfect that this type of truthful
and important communication will take place as a matter of course, or (2) so
imperfect that, upon notice, the husband will react selfishly, violently, or contrary
to the best interests of his wife. See Planned Parenthood of Central Mo. v.
Danforth, supra, at 103-104 (STEVENS, J., concurring in part and dissenting in
part) (making a similar point in the context of a parental consent statute).
The spousal notice provision will admittedly be unnecessary in some
circumstances, and possibly harmful in others, but the existence of particular
cases in which a feature of a statute performs no function (or is even
counterproductive) [505 U.S. 833,
976] ordinarily does not render the statute unconstitutional or
even constitutionally suspect. Thornburgh v. American College of Obstetricians
and Gynecologists, 476
U.S., at 800 (WHITE, J., dissenting). The Pennsylvania Legislature was in a
position to weigh the likely benefits of the provision against its likely
adverse effects, and presumably concluded, on balance, that the provision would
be beneficial. Whether this was a wise decision or not, we cannot say that it
was irrational. We therefore conclude that the spousal notice provision
comports with the Constitution. See Harris v. McRae, 448
U.S., at 325 -326 ("It is not the mission of this Court or any other
to decide whether the balance of competing interests . . . is wise social
policy").
The Act also imposes various reporting requirements. Section 3214(a)
requires that abortion facilities file a report on each abortion performed. The
reports do not include the identity of the women on whom abortions are
performed, but they do contain a variety of information about the abortions.
For example, each report must include the identities of the performing and
referring physicians, the gestational age of the fetus at the time of abortion,
and the basis for any medical judgment that a medical emergency existed. See 18
Pa. Cons.Stat. 3214(a)(1), (5), (10) (1990). See Appendix to opinion of
O'Connor, Kennedy, and Souter, JJ., ante, at 909-911. The District Court found
that these reports are kept completely confidential. 947 F.2d, at 716. We
further conclude that these reporting requirements rationally further the
State's legitimate interests in advancing the state of medical knowledge
concerning maternal health and prenatal life, in gathering statistical
information with respect to patients, and in ensuring compliance with other
provisions of the Act.
Section 3207 of the Act requires each abortion facility to file a report
with its name and address, as well as the names [505 U.S. 833, 977] and addresses of any parent,
subsidiary, or affiliated organizations. 18 Pa.Cons.Stat. 3207(b) (1990).
Section 3214(f) further requires each facility to file quarterly reports
stating the total number of abortions performed, broken down by trimester. Both
of these reports are available to the public only if the facility received
state funds within the preceding 12 months. See Appendix to opinion of
O'Connor, Kennedy, and Souter, JJ., ante, at 906,911. Petitioners do not
challenge the requirement that facilities provide this information. They
contend, however, that the forced public disclosure of the information given by
facilities receiving public funds serves no legitimate state interest. We
disagree. Records relating to the expenditure of public funds are generally
available to the public under Pennsylvania law. See Pa.Stat.Ann., Tit. 65,
66.1, 66.2 (Purdon 1959 and Supp. 1991-1992). As the Court of Appeals observed,
"[w]hen a state provides money to a private commercial enterprise, there
is a legitimate public interest in informing taxpayers who the funds are
benefiting and what services the funds are supporting." 947 F.2d, at 718.
These reporting requirements rationally further this legitimate state interest.
Finally, petitioners challenge the medical emergency exception provided for
by the Act. The existence of a medical emergency exempts compliance with the
Act's informed consent, parental consent, and spousal notice requirements. See
18 Pa. Cons.Stat. 3205(a), 3206(a), 3209(c) (1990). The Act defines a
"medical emergency" as
"[t]hat condition which, on
the basis of the physician's good faith clinical judgment, so complicates the
medical condition of a pregnant woman as to necessitate the immediate abortion
of her pregnancy to avert her death or for which a delay will create serious
risk of substantial [505 U.S. 833,
978] and irreversible impairment of major bodily function."
3203.
Petitioners argued before the District Court that the
statutory definition was inadequate because it did not cover three serious
conditions that pregnant women can suffer - preeclampsia, inevitable abortion,
and prematurely ruptured membrane. The District Court agreed with petitioners
that the medical emergency exception was inadequate, but the Court of Appeals
reversed this holding. In construing the medical emergency provision, the Court
of Appeals first observed that all three conditions do indeed present the risk
of serious injury or death when an abortion is not performed, and noted that
the medical profession's uniformly prescribed treatment for each of the three
conditions is an immediate abortion. See 947 F.2d, at 700-701. Finding that
"[t]he Pennsylvania legislature did not choose the wording of its medical
emergency exception in a vacuum," the court read the exception as intended
to assure that compliance with its abortion regulations would not in any way
pose a significant threat to the life or health of a woman. Id., at 701. It
thus concluded that the exception encompassed each of the three dangerous
conditions pointed to by petitioners.
We observe that Pennsylvania's present definition of medical emergency is
almost an exact copy of that State's definition at the time of this Court's
ruling in Thornburgh, one which the Court made reference to with apparent
approval. 476
U.S., at 771 ("It is clear that the Pennsylvania Legislature knows how
to provide a medical emergency exception when it chooses to do so"). 3 We find that the
interpretation [505 U.S. 833, 979]
of the Court of Appeals in this case is eminently reasonable, and
that the provision thus should be upheld. When a woman is faced with any
condition that poses a "significant threat to [her] life or health,"
she is exempted from the Act's consent and notice requirements, and may proceed
immediately with her abortion.
For the reasons stated, we therefore would hold that each of the challenged
provisions of the Pennsylvania statute is consistent with the Constitution. It
bears emphasis that our conclusion in this regard does not carry with it any
necessary approval of these regulations. Our task is, as always, to decide only
whether the challenged provisions of a law comport with the United States
Constitution. If, as we believe, these do, their wisdom as a matter of public
policy is for the people of Pennsylvania to decide.
[ Footnote 1 ] Two
years after Roe, the West German constitutional court, by contrast, struck down
a law liberalizing access to abortion on the grounds that life developing
within the womb is constitutionally protected. Judgment of February 25, 1975,
39 BVerfGE I (translated in Jonas & Gorby, West German Abortion Decision: A
Contrast to Roe v. Wade, 9 John Marshall J.Prac. & Proc. 605 (1976)). In
1988, the Canadian Supreme Court followed reasoning similar to that of Roe in
striking down a law that restricted abortion. Morgentaler v. Queen, I S.C.R.
30, 44 D.L.R. 4th 385 (1988).
[ Footnote 2 ] The
joint opinion of JUSTICES O'CONNOR, KENNEDY, and SOUTER appears to ignore this
point in concluding that the spousal notice provision imposes an undue burden
on the abortion decision. Ante, at 887-898. In most instances, the notification
requirement operates without difficulty. As the District Court found, the vast
majority of wives seeking abortions notify and consult with their husbands, and
thus suffer no burden as a result of the provisions. For example, notification
is not required if the husband is not the father, if the pregnancy is the
result of a reported spousal sexual assault, or if the woman fears bodily
injury as a result of notifying her husband. Thus, in these instances as well,
the notification provision imposes no obstacle to the abortion decision.
The joint opinion puts to one side these situations where the regulation
imposes no obstacle at all, and instead focuses on the group of married women
who would not otherwise notify their husbands and who do not qualify for one of
the exceptions. Having narrowed the focus, the joint opinion concludes that, in
a "large fraction" of those cases, the notification provision
operates as a substantial obstacle, ante, at 895, and that the provision is
therefore invalid. There are certainly instances where a woman would prefer not
to notify her husband, and yet does not qualify for an exception. For example,
there are the situations of the battered women who fear psychological abuse or
injury to their children as a result of notification; because in these
situations the women do not fear bodily injury, they do not qualify for an
exception. And there are situations where a woman has become pregnant as a
result of an unreported spousal sexual assault; when such an assault is
unreported, no exception is available. But, as the District Court found, there
are also instances where the woman prefers not to notify her husband for a
variety of other reasons. See 744 F.Supp., at 1360. For example, a woman might
desire to obtain an abortion without her husband's knowledge because of
perceived economic constraints or her husband's previously expressed opposition
to abortion. The joint [505 U.S.
833, 974] opinion concentrates on the situations involving
battered women and unreported spousal assault, and assumes, without any support
in the record, that these instances constitute a "large fraction" of
those cases in which women prefer not to notify their husbands (and do not
qualify for an exception). Ante, at 895. This assumption is not based on any
hard evidence, however. And were it helpful to an attempt to reach a desired
result, one could just as easily assume that the battered women situations form
100 percent of the cases where women desire not to notify, or that they constitute
only 20 percent of those cases. But reliance on such speculation is the
necessary result of adopting the undue burden standard.
[ Footnote 3 ] The
definition in use at that time provided as follows:
"`Medical emergency.' That
condition which, on the basis of the physician's best clinical judgment, so
complicates a pregnancy as to necessitate the immediate abortion of same to
avert the death of the mother or for which a 2-hour delay will create grave
peril of immediate and irreversible loss of major bodily function. Pa.
Stat.Ann., Tit. 18, 3203 (Purdon 1983).
JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JUSTICE WHITE,
and JUSTICE THOMAS join, concurring in the judgment in part and dissenting in
part.
My views on this matter are unchanged from those I set forth in my separate
opinions in Webster v. Reproductive Health Services, 492
U.S. 490, 532 (1989) (opinion concurring in part and concurring in
judgment), and Ohio v. Akron Center for Reproductive Health, 497
U.S. 502, 520 (1990) (Akron II) (concurring opinion). The States may, if
they wish, permit abortion on demand, but the Constitution does not require
them to do so. The permissibility of abortion, and the limitations upon it, are
to be resolved like most important questions in our democracy: by citizens
trying to persuade one another and then voting. As the Court acknowledges,
"where reasonable people disagree, the government can adopt one position
or the other." Ante, at 851. The Court is correct in adding the
qualification that this "assumes a state of affairs in which the choice
does not intrude upon a protected liberty," ibid., - but the crucial part
of that qualification [505 U.S.
833, 980] is the penultimate word. A State's choice between two
positions on which reasonable people can disagree is constitutional even when
(as is often the case) it intrudes upon a "liberty" in the absolute
sense. Laws against bigamy, for example - with which entire societies of
reasonable people disagree - intrude upon men and women's liberty to marry and
live with one another. But bigamy happens not to be a liberty specially
"protected" by the Constitution.
That is, quite simply, the issue in this case: not whether the power of a
woman to abort her unborn child is a "liberty" in the absolute sense;
or even whether it is a liberty of great importance to many women. Of course it
is both. The issue is whether it is a liberty protected by the Constitution of
the United States. I am sure it is not. I reach that conclusion not because of
anything so exalted as my views concerning the "concept of existence, of
meaning, of the universe, and of the mystery of human life." Ibid. Rather,
I reach it for the same reason I reach the conclusion that bigamy is not
constitutionally protected - because of two simple facts: (1) the Constitution
says absolutely nothing about it, and (2) the longstanding traditions of
American society have permitted it to be legally proscribed. 1 Akron II, supra, at 520
(SCALIA, J., concurring). [505
U.S. 833, 981]
The Court destroys the proposition, evidently meant to represent my
position, that "liberty" includes only those practices, defined at
the most specific level, that were protected against government interference by
other rules of law when the Fourteenth Amendment was ratified, ante, at 847
(citing Michael H. v. Gerald D., 491
U.S. 110, 127 , n. 6 (1989) (opinion of SCALIA, J.). That is not, however,
what Michael H. says; it merely observes that, in defining "liberty,"
we may not disregard a specific, "relevant tradition protecting, or
denying protection to, the asserted right," Ibid. But the Court does not
wish to be fettered by any such limitations on its preferences. The Court's
statement that it is "tempting" to acknowledge the authoritativeness
of tradition in order to "cur[b] the discretion of federal judges,"
ante, at 847, is, of course, rhetoric rather than reality; no government
official is "tempted" to place restraints upon his own freedom of
action, which is why Lord Acton did not say "Power tends to purify."
The Court's temptation is in the quite opposite and more natural direction -
towards systematically eliminating checks upon its own power; and it succumbs.
Beyond that brief summary of the essence of my position, I will not swell
the United States Reports with repetition of what I have said before; and
applying the rational basis test, I would uphold the Pennsylvania statute in
its entirety. I must, however, respond to a few of the more outrageous
arguments in today's opinion, which it is beyond human nature to leave
unanswered. I shall discuss each of them under a quotation from the Court's
opinion to which they pertain.
"The inescapable fact is that
adjudication of substantive due process claims may call upon the Court, [505 U.S. 833, 982] in
interpreting the Constitution, to exercise that same capacity which, by
tradition, courts always have exercised: reasoned judgment". Ante, at 849.
Assuming that the question before us is to be resolved at
such a level of philosophical abstraction, in such isolation from the
traditions of American society, as by simply applying "reasoned
judgment," I do not see how that could possibly have produced the answer
the Court arrived at in Roe v. Wade, 410
U.S. 113 (1973). Today's opinion describes the methodology of Roe, quite
accurately, as weighing against the woman's interest the State's
"`important and legitimate interest in protecting the potentiality of
human life.'" Ante, at 871 (quoting Roe, supra, at 162). But "reasoned
judgment" does not begin by begging the question, as Roe and subsequent
cases unquestionably did by assuming that what the State is protecting is the
mere "potentiality of human life." See, e.g., Roe, supra, at 162;
Planned Parenthood of Central Mo. v. Danforth, 428
U.S. 52, 61 (1976); Colautti v. Franklin, 439
U.S. 379, 386 (1979); Akron v. Akron Center for Reproductive Health, Inc., 462
U.S. 416, 428 (1983) (Akron I); Planned Parenthood Assn. of Kansas City,
Mo., Inc. v. Ashcroft, 462
U.S. 476, 482 (1983). The whole argument of abortion opponents is that what
the Court calls the fetus and what others call the unborn child is a human
life. Thus, whatever answer Roe came up with after conducting its
"balancing" is bound to be wrong, unless it is correct that the human
fetus is in some critical sense merely potentially human. There is, of course,
no way to determine that as a legal matter; it is, in fact, a value judgment.
Some societies have considered newborn children not yet human, or the
incompetent elderly no longer so.
The authors of the joint opinion, of course, do not squarely contend that
Roe v. Wade was a correct application of "reasoned judgment"; merely
that it must be followed, because of stare decisis. Ante, at 853, 861, 871. But
in their exhaustive discussion of all the factors that go into the determination
[505 U.S. 833, 983] of
when stare decisis should be observed and when disregarded, they never mention
"how wrong was the decision on its face?" Surely, if "[t]he
Court's power lies . . . in its legitimacy, a product of substance and
perception," ante, at 865, the "substance" part of the equation
demands that plain error be acknowledged and eliminated. Roe was plainly wrong
- even on the Court's methodology of "reasoned judgment," and even
more so (of course) if the proper criteria of text and tradition are applied.
The emptiness of the "reasoned judgment" that produced Roe is
displayed in plain view by the fact that, after more than 19 years of effort by
some of the brightest (and most determined) legal minds in the country, after
more than 10 cases upholding abortion rights in this Court, and after dozens
upon dozens of amicus briefs submitted in this and other cases, the best the
Court can do to explain how it is that the word "liberty" must be
thought to include the right to destroy human fetuses is to rattle off a
collection of adjectives that simply decorate a value judgment and conceal a
political choice. The right to abort, we are told, inheres in
"liberty" because it is among "a person's most basic
decisions," ante, at 849; it involves a "most intimate and personal
choic[e]," ante, at 851; it is "central to personal dignity and
autonomy," ibid.; it "originate[s] within the zone of conscience and
belief," ante, at 852 it is "too intimate and personal" for
state interference, ibid.;, it reflects "intimate views" of a
"deep, personal character," ante, at 853; it involves "intimate
relationships" and notions of "personal autonomy and bodily
integrity," ante, at 857; and it concerns a particularly "`important
decisio[n],'" ante, at 859 (citation omitted). 2 But it is [505 U.S. 833, 984] obvious
to anyone applying "reasoned judgment" that the same adjectives can
be applied to many forms of conduct that this Court (including one of the
Justices in today's majority, see Bowers v. Hardwick, 478
U.S. 186 (1986)) has held are not entitled to constitutional protection -
because, like abortion, they are forms of conduct that have long been
criminalized in American society. Those adjectives might be applied, for
example, to homosexual sodomy, polygamy, adult incest, and suicide, all of
which are equally "intimate" and "deep[ly] personal"
decisions involving "personal autonomy and bodily integrity," and all
of which can constitutionally be proscribed because it is our unquestionable
constitutional tradition that they are proscribable. It is not reasoned
judgment that supports the Court's decision; only personal predilection.
Justice Curtis' warning is as timely today as it was 135 years ago:
"[W]hen a strict
interpretation of the Constitution, according to the fixed rules which govern
the interpretation of laws, is abandoned, and the theoretical opinions of individuals
are allowed to control its meaning, we have no longer a Constitution; we are
under the government of individual men, who for the time being have power to
declare what the Constitution is, according to their own views of what it ought
to mean." Dred Scott v. Sandford, 19 How. 393, 621 (1857) (dissenting
opinion).
Liberty finds no refuge in a
jurisprudence of doubt. Ante, at 844.
One might have feared to encounter this august and sonorous
phrase in an opinion defending the real Roe v. Wade, rather than the revised
version fabricated today by the authors [505 U.S. 833, 985] of the joint opinion. The
shortcomings of Roe did not include lack of clarity: virtually all regulation
of abortion before the third trimester was invalid. But to come across this
phrase in the joint opinion - which calls upon federal district judges to apply
an "undue burden" standard as doubtful in application as it is
unprincipled in origin - is really more than one should have to bear.
The joint opinion frankly concedes that the amorphous concept of "undue
burden" has been inconsistently applied by the Members of this Court in
the few brief years since that "test" was first explicitly propounded
by JUSTICE O'CONNOR in her dissent in Akron I, See 462
U.S. 416 (1983). See ante at 876. 3 Because the three
Justices now wish to "set forth a standard of general application,"
the joint opinion announces that "it is important to clarify what is meant
by an undue burden." Ibid. I certainly agree with that, but I do not agree
that the joint opinion succeeds in the announced endeavor. To the contrary, its
efforts at clarification [505 U.S.
833, 986] make clear only that the standard is inherently
manipulable, and will prove hopelessly unworkable in practice.
The joint opinion explains that a state regulation imposes an "undue
burden" if it "has the purpose or effect of placing a substantial
obstacle in the path of a woman seeking an abortion of a nonviable fetus."
Ante, at 877; see also ante, at 877-879. An obstacle is
"substantial," we are told, if it is "calculated[,] [not] to
inform the woman's free choice, [but to] hinder it." Ante, at 877. 4 This latter statement
cannot [505 U.S. 833, 987] possibly
mean what it says. Any regulation of abortion that is intended to advance what
the joint opinion concedes is the State's "substantial" interest in
protecting unborn life will be "calculated [to] hinder" a decision to
have an abortion. It thus seems more accurate to say that the joint opinion
would uphold abortion regulations only if they do not unduly hinder the woman's
decision. That, of course, brings us right back to square one: defining an
"undue burden" as an "undue hindrance" (or a
"substantial obstacle") hardly "clarifies" the test.
Consciously or not, the joint opinion's verbal shell game will conceal raw
judicial policy choices concerning what is "appropriate" abortion
legislation.
The ultimately standardless nature of the "undue burden" inquiry
is a reflection of the underlying fact that the concept has no principled or
coherent legal basis. As THE CHIEF JUSTICE points out, Roe's strict scrutiny
standard "at least had a recognized basis in constitutional law at the
time Roe was decided," ante, at 964, while [t]he same cannot be said for
the "undue burden" standard, which is created largely out of whole
cloth by the authors of the joint opinion. ibid. The joint opinion is flatly
wrong in asserting that "our jurisprudence relating to all liberties save
perhaps abortion has recognized" the permissibility of laws that do not
impose an "undue burden." Ante, at 873. It argues that the abortion
right is similar to other rights in that a law not designed to strike at the
right itself, [but which] has the incidental effect of making it more difficult
or more expensive to [exercise the right,] is not invalid. Ante, at 874. I
agree, indeed I have [505 U.S.
833, 988] forcefully urged, that a law of general applicability
which places only an incidental burden on a fundamental right does not infringe
that right, see R.A.V. v. St. Paul, 505
U.S. 377 , (1992); Employment Div., Dept. of Human Resources of Ore. v.
Smith, 494
U.S. 872, 878 -882 (1990), but that principle does not establish the quite
different (and quite dangerous) proposition that a law which directly regulates
a fundamental right will not be found to violate the Constitution unless it
imposes an "undue burden." It is that, of course, which is at issue
here: Pennsylvania has consciously and directly regulated conduct that our
cases have held is constitutionally protected. The appropriate analogy,
therefore, is that of a state law requiring purchasers of religious books to
endure a 24-hour waiting period, or to pay a nominal additional tax of 1 › .
The joint opinion cannot possibly be correct in suggesting that we would uphold
such legislation on the ground that it does not impose a "substantial obstacle"
to the exercise of First Amendment rights. The "undue burden"
standard is not at all the generally applicable principle the joint opinion
pretends it to be; rather, it is a unique concept created specially for this
case, to preserve some judicial foothold in this ill-gotten territory. In
claiming otherwise, the three Justices show their willingness to place all
constitutional rights at risk in an effort to preserve what they deem the
"central holding in Roe." Ante, at 873.
The rootless nature of the "undue burden" standard, a phrase
plucked out of context from our earlier abortion decisions, see n. 3, supra, is
further reflected in the fact that the joint opinion finds it necessary
expressly to repudiate the more narrow formulations used in JUSTICE O'CONNOR's
earlier opinions. Ante, at 876-877. Those opinions stated that a statute
imposes an "undue burden" if it imposes "absolute obstacles or
severe limitations on the abortion decision," Akron I, 462
U.S., at 464 (dissenting opinion) (emphasis added); see also Thornburgh v.
American College of Obstetricians and Gynecologists, 476
U.S. 747, 828 (1986) (dissenting [505
U.S. 833, 989] opinion). Those strong adjectives are
conspicuously missing from the joint opinion, whose authors have, for some
unexplained reason, now determined that a burden is "undue" if it
merely imposes a "substantial" obstacle to abortion decisions. See,
e.g., ante, at 895, 901. JUSTICE O'CONNOR has also abandoned (again without
explanation) the view she expressed in Planned Parenthood Assn. of Kansas City,
Mo., Inc. v. Ashcroft, 462
U.S. 476 (1983) (dissenting opinion), that a medical regulation which
imposes an "undue burden" could nevertheless be upheld if it
"reasonably relate[s] to the preservation and protection of maternal
health," id., at 505 (citation and internal quotation marks omitted). In
today's version, even health measures will be upheld only "if they do not
constitute an undue burden," ante, at 878 (emphasis added). Gone too is
JUSTICE O'CONNOR's statement that "the State possesses compelling
interests in the protection of potential human life . . . throughout pregnancy,"
Akron I, supra, at 461 (dissenting opinion) (emphasis added); see also
Ashcroft, supra, at 505 (O'CONNOR, J., concurring in judgment in part and
dissenting in part); Thornburgh, supra, at 828 (O'CONNOR, J., dissenting);
instead, the State's interest in unborn human life is stealthily downgraded to
a merely "substantial" or "profound" interest, ante, at
876, 878. (That had to be done, of course, since designating the interest as
"compelling" throughout pregnancy would have been, shall we say, a
"substantial obstacle" to the joint opinion's determined effort to
reaffirm what it views as the "central holding" of Roe. See Akron I, 462
U.S., at 420 , n. 1). And "viability" is no longer the
"arbitrary" dividing line previously decried by JUSTICE O'CONNOR in
Akron I, id., at 461; the Court now announces that "the attainment of
viability may continue to serve as the critical fact," ante, at 860. 5 It is difficult to [505 U.S. 833, 990] maintain
the illusion that we are interpreting a Constitution, rather than inventing
one, when we amend its provisions so breezily.
Because the portion of the joint opinion adopting and describing the undue
burden test provides no more useful guidance than the empty phrases discussed
above, one must turn to 23 pages applying that standard to the present facts,
for further guidance. In evaluating Pennsylvania's abortion law, the joint
opinion relies extensively on the factual findings of the District Court, and
repeatedly qualifies its conclusions by noting that they are contingent upon
the record developed in this case. Thus, the joint opinion would uphold the
24-hour waiting period contained in the Pennsylvania statute's informed consent
provision, 18 Pa.Cons.Stat. 3205 (1990), because "the record evidence
shows that, in the vast majority of cases, a 24-hour delay does not create any
appreciable health risk," ante, at 885. The three Justices therefore
conclude that, "on the record before us, . . . we are not convinced that
the 24-hour waiting period constitutes an undue burden." Ante, at 887. The
requirement that a doctor provide the information pertinent to informed consent
would also be upheld because there is no evidence on this record that [this
requirement] would amount, in practical terms, to a substantial obstacle to a
woman seeking an abortion. Ante, at 884. Similarly, the joint opinion would
uphold the reporting requirements of the Act, 3207, 3214, because "there
is no . . . showing on the record before us" that these requirements
constitute a "substantial obstacle" [505 U.S. 833, 991] to abortion decisions. Ante,
at 901. But, at the same time, the opinion pointedly observes that these
reporting requirements may increase the costs of abortions, and that "at
some point, [that fact] could become a substantial obstacle." Ibid. Most
significantly, the joint opinion's conclusion that the spousal notice requirement
of the Act, see 3209, imposes an "undue burden" is based in large
measure on the District Court's "detailed findings of fact," which
the joint opinion sets out at great length, ante, at 888-891.
I do not, of course, have any objection to the notion that, in applying
legal principles, one should rely only upon the facts that are contained in the
record or that are properly subject to judicial notice. 6 But what is remarkable
about the joint opinion's fact-intensive analysis is that it does not result in
any measurable clarification of the "undue burden" standard. Rather,
the approach of the joint opinion is, for the most part, simply to highlight
certain facts in the record that apparently strike the three Justices as
particularly significant in establishing (or refuting) the existence of an
undue burden; after describing these facts, the opinion then simply announces
that the provision either does or does not impose a "substantial obstacle"
or an "undue burden." See, e.g., ante, at 880, 884-885, 887, 893-894,
895, 901. We do not know whether the same conclusions could have been reached
on a different record, or in what respects the record would have had to differ
before an opposite conclusion would have been [505 U.S. 833, 992] appropriate. The inherently
standardless nature of this inquiry invites the district judge to give effect
to his personal preferences about abortion. By finding and relying upon the
right facts, he can invalidate, it would seem, almost any abortion restriction
that strikes him as "undue" - subject, of course, to the possibility
of being reversed by a Court of Appeals or Supreme Court that is as
unconstrained in reviewing his decision as he was in making it.
To the extent I can discern any meaningful content in the "undue
burden" standard as applied in the joint opinion, it appears to be that a
State may not regulate abortion in such a way as to reduce significantly its
incidence. The joint opinion repeatedly emphasizes that an important factor in
the "undue burden" analysis is whether the regulation
"prevent[s] a significant number of women from obtaining an
abortion," ante, at 893; whether a "significant number of women . . .
are likely to be deterred from procuring an abortion," ibid.; and whether
the regulation often "deters" women from seeking abortions, ante, at
894. We are not told, however, what forms of "deterrence" are
impermissible or what degree of success in deterrence is too much to be tolerated.
If, for example, a State required a woman to read a pamphlet describing, with
illustrations, the facts of fetal development before she could obtain an
abortion, the effect of such legislation might be to "deter" a
"significant number of women" from procuring abortions, thereby
seemingly allowing a district judge to invalidate it as an undue burden. Thus,
despite flowery rhetoric about the State's "substantial" and
"profound" interest in "potential human life," and
criticism of Roe for undervaluing that interest, the joint opinion permits the
State to pursue that interest only so long as it is not too successful. As
JUSTICE BLACKMUN recognizes (with evident hope), ante, at 926, the "undue
burden" standard may ultimately require the invalidation of each provision
upheld today if it can be shown, on a better record, that the State is too
effectively "express[ing] a preference [505 U.S. 833, 993] for childbirth over
abortion," ante, at 883. Reason finds no refuge in this jurisprudence of
confusion.
"While we appreciate the weight
of the arguments . . . that Roe should be overruled, the reservations any of us
may have in reaffirming the central holding of Roe are outweighed by the
explication of individual liberty we have given combined with the force of
stare decisis. Ante, at 853.
The Court's reliance upon stare decisis can best be
described as contrived. It insists upon the necessity of adhering not to all of
Roe, but only to what it calls the "central holding." It seems to me
that stare decisis ought to be applied even to the doctrine of stare decisis,
and I confess never to have heard of this new,
keep-what-you-want-and-throw-away-the-rest version. I wonder whether, as
applied to Marbury v. Madison, 1 Cranch 137 (1803), for example, the new
version of stare decisis would be satisfied if we allowed courts to review the
constitutionality of only those statutes that (like the one in Marbury) pertain
to the jurisdiction of the courts.
I am certainly not in a good position to dispute that the Court has saved
the "central holding" of Roe, since, to do that effectively, I would
have to know what the Court has saved, which in turn would require me to
understand (as I do not) what the "undue burden" test means. I must
confess, however, that I have always thought, and I think a lot of other people
have always thought, that the arbitrary trimester framework, which the Court
today discards, was quite as central to Roe as the arbitrary viability test,
which the Court today retains. It seems particularly ungrateful to carve the
trimester framework out of the core of Roe, since its very rigidity (in sharp
contrast to the utter indeterminability of the "undue burden" test)
is probably the only reason the Court is able to say, in urging stare decisis,
that Roe "has in no sense proven `unworkable,'" ante, at 855. I
suppose the [505 U.S. 833, 994]
Court is entitled to call a "central holding" whatever
it wants to call a "central holding" - which is, come to think of it,
perhaps one of the difficulties with this modified version of stare decisis. I
thought I might note, however, that the following portions of Roe have not been
saved:
* Under Roe, requiring that a woman seeking an abortion be provided truthful
information about abortion before giving informed written consent is
unconstitutional if the information is designed to influence her choice.
Thornburgh, 476
U.S., at 759 -765; Akron I, 462
U.S., at 442 -445. Under the joint opinion's "undue burden"
regime (as applied today, at least) such a requirement is constitutional. Ante,
at 881-885.
* Under Roe, requiring that information be provided by a doctor, rather than
by nonphysician counselors, is unconstitutional. Akron I, supra, at 446-449.
Under the "undue burden" regime (as applied today, at least) it is
not. Ante, at 884-885.
* Under Roe, requiring a 24-hour waiting period between the time the woman
gives her informed consent and the time of the abortion is unconstitutional.
Akron I, supra, at 449-451. Under the "undue burden" regime (as
applied today, at least) it is not. Ante, at 885-887.
* Under Roe, requiring detailed reports that include demographic data about
each woman who seeks an abortion and various information about each abortion is
unconstitutional. Thornburgh, supra, 476
U.S., at 765 -768. Under the "undue burden" regime (as applied
today, at least) it generally is not. Ante at 900-901.
"Where, in the performance of
its judicial duties, the Court decides a case in such a way as to resolve the sort
of intensely divisive controversy reflected in Roe . . ., its decision has a
dimension that the resolution of the normal case does not carry. It is the
dimension present whenever the Court's interpretation of the Constitution calls
the contending sides of a [505
U.S. 833, 995] national controversy to end their national
division by accepting a common mandate rooted in the Constitution. Ante, at
866-867.
The Court's description of the place of Roe in the social
history of the United States is unrecognizable. Not only did Roe not, as the
Court suggests, resolve the deeply divisive issue of abortion; it did more than
anything else to nourish it, by elevating it to the national level, where it is
infinitely more difficult to resolve. National politics were not plagued by
abortion protests, national abortion lobbying, or abortion marches on Congress
before Roe v. Wade was decided. Profound disagreement existed among our
citizens over the issue - as it does over other issues, such as the death
penalty - but that disagreement was being worked out at the state level. As
with many other issues, the division of sentiment within each State was not as
closely balanced as it was among the population of the Nation as a whole,
meaning not only that more people would be satisfied with the results of
state-by-state resolution, but also that those results would be more stable.
Pre-Roe, moreover, political compromise was possible.
Roe's mandate for abortion on demand destroyed the compromises of the past,
rendered compromise impossible for the future, and required the entire issue to
be resolved uniformly, at the national level. At the same time, Roe created a
vast new class of abortion consumers and abortion proponents by eliminating the
moral opprobrium that had attached to the act. ("If the Constitution
guarantees abortion, how can it be bad?" - not an accurate line of
thought, but a natural one.) Many favor all of those developments, and it is
not for me to say that they are wrong. But to portray Roe as the statesmanlike
"settlement" of a divisive issue, a jurisprudential Peace of
Westphalia that is worth preserving, is nothing less than Orwellian. Roe fanned
into life an issue that has inflamed our national politics in general, and has
obscured with its smoke the selection of Justices to this Court, [505 U.S. 833, 996] in
particular, ever since. And by keeping us in the abortion-umpiring business, it
is the perpetuation of that disruption, rather than of any Pax Roeana that the
Court's new majority decrees.
"[T]o overrule under fire . .
. would subvert the Court's legitimacy. . . .
". . . To all those who will
be . . . tested by following, the Court implicitly undertakes to remain
steadfast. . . . The promise of constancy, once given, binds its maker for as long
as the power to stand by the decision survives and . . . the commitment [is
not] obsolete. . . .
"[The American people's]
belief in themselves as . . . a people [who aspire to live according to the
rule of law] is not readily separable from their understanding of the Court
invested with the authority to decide their constitutional cases and speak
before all others for their constitutional ideals. If the Court's legitimacy
should be undermined, then so would the country be in its very ability to see itself
through its constitutional ideals." Ante, at 867-868.
The Imperial Judiciary lives. It is instructive to compare
this Nietzschean vision of us unelected, life-tenured judges - leading a Volk
who will be "tested by following," and whose very "belief in
themselves" is mystically bound up in their "understanding" of a
Court that "speak[s] before all others for their constitutional
ideals" - with the somewhat more modest role envisioned for these lawyers
by the Founders.
"The judiciary . . . has . . .
no direction either of the strength or of the wealth of the society, and can
take no active resolution whatever. It may truly be said to have neither Force
nor Will, but merely judgment. . . ." The Federalist No. 78, pp. 393-394
(G. Wills ed. 1982).
Or, again, to compare this ecstasy of a Supreme Court in
which there is, especially on controversial matters, no [505 U.S. 833, 997] shadow of change or
hint of alteration ("There is a limit to the amount of error that can
plausibly be imputed to prior Courts," ante, at 866), with the more
democratic views of a more humble man:
"[T]he candid citizen must
confess that, if the policy of the Government upon vital questions affecting
the whole people is to be irrevocably fixed by decisions of the Supreme Court,
. . . the people will have ceased to be their own rulers, having to that extent
practically resigned their Government into the hands of that eminent
tribunal." A. Lincoln, First Inaugural Address (Mar. 4, 1861), reprinted
in Inaugural Addresses of the Presidents of the United States, S. Doc. No.
101-10, p. 139 (1989).
It is particularly difficult, in the circumstances of the
present decision, to sit still for the Court's lengthy lecture upon the virtues
of "constancy," ante, at 868, of "remain[ing] steadfast,"
ibid.;,, and adhering to "principle," ante, passim. Among the five
Justices who purportedly adhere to Roe, at most three agree upon the principle
that constitutes adherence (the joint opinion's "undue burden"
standard) - and that principle is inconsistent with Roe. See 410
U.S., at 154 -156. 7 To
make matters worse, two of the three, in order thus to remain steadfast, had to
abandon previously stated positions. See n. 4, supra; see supra at 11-12. It is
beyond me how the Court expects these accommodations to be accepted as grounded
truly in principle, not as compromises with social and political pressures
having, as such, no bearing on the principled choices that the Court is obliged
to make. Ante, at 865-866. The only principle the Court "adheres" [505 U.S. 833, 998] to, it
seems to me, is the principle that the Court must be seen as standing by Roe.
That is not a principle of law (which is what I thought the Court was talking
about), but a principle of Realpolitik - and a wrong one, at that.
I cannot agree with, indeed I am appalled by, the Court's suggestion that
the decision whether to stand by an erroneous constitutional decision must be
strongly influenced - against overruling, no less - by the substantial and
continuing public opposition the decision has generated. The Court's judgment
that any other course would "subvert the Court's legitimacy" must be
another consequence of reading the error-filled history book that described the
deeply divided country brought together by Roe. In my history book, the Court
was covered with dishonor and deprived of legitimacy by Dred Scott v. Sandford,
19 How. 393 (1857), an erroneous (and widely opposed) opinion that it did not
abandon, rather than by West Coast Hotel Co. v. Parrish, 300
U.S. 379 (1937), which produced the famous "switch in time" from
the Court's erroneous (and widely opposed) constitutional opposition to the
social measures of the New Deal. Both Dred Scott and one line of the cases
resisting the New Deal rested upon the concept of "substantive due
process" that the Court praises and employs today. Indeed, Dred Scott was
very possibly the first application of substantive due process in the Supreme
Court, the original precedent for Lochner v. New York and Roe v. Wade. D. Currie,
The Constitution in the Supreme Court 271 (1985) (footnotes omitted).
But whether it would "subvert the Court's legitimacy" or not, the
notion that we would decide a case differently from the way we otherwise would
have in order to show that we can stand firm against public disapproval is
frightening. It is a bad enough idea, even in the head of someone like me, who
believes that the text of the Constitution, and our traditions, say what they
say and there is no fiddling with them. But when it is in the mind of a Court
that believes the Constitution [505
U.S. 833, 999] has an evolving meaning, see ante, at 848; that
the Ninth Amendment's reference to "othe[r]" rights is not a
disclaimer, but a charter for action, ibid.; and that the function of this Court
is to "speak before all others for [the people's] constitutional
ideals" unrestrained by meaningful text or tradition - then the notion
that the Court must adhere to a decision for as long as the decision faces
"great opposition" and the Court is "under fire" acquires a
character of almost czarist arrogance. We are offended by these marchers who
descend upon us, every year on the anniversary of Roe, to protest our saying
that the Constitution requires what our society has never thought the Constitution
requires. These people who refuse to be "tested by following" must be
taught a lesson. We have no Cossacks, but at least we can stubbornly refuse to
abandon an erroneous opinion that we might otherwise change - to show how
little they intimidate us.
Of course, as THE CHIEF JUSTICE points out, we have been subjected to what
the Court calls "`political pressure'" by both sides of this issue.
Ante, at 963. Maybe today's decision not to overrule Roe will be seen as
buckling to pressure from that direction. Instead of engaging in the hopeless
task of predicting public perception - a job not for lawyers but for political
campaign managers - the Justices should do what is legally right by asking two
questions: (1) Was Roe correctly decided? (2) Has Roe succeeded in producing a
settled body of law? If the answer to both questions is no, Roe should
undoubtedly be overruled.
In truth, I am as distressed as the Court is - and expressed my distress
several years ago, see Webster, 492
U.S., at 535 - about the "political pressure" directed to the
Court: the marches, the mail, the protests aimed at inducing us to change our
opinions. How upsetting it is, that so many of our citizens (good people, not
lawless ones, on both sides of this abortion issue, and on various sides of
other issues as well) think that we Justices should properly take into account [505 U.S. 833, 1000] their
views, as though we were engaged not in ascertaining an objective law, but in
determining some kind of social consensus. The Court would profit, I think,
from giving less attention to the fact of this distressing phenomenon, and more
attention to the cause of it. That cause permeates today's opinion: a new mode
of constitutional adjudication that relies not upon text and traditional
practice to determine the law, but upon what the Court calls "reasoned
judgment," ante, at 849, which turns out to be nothing but philosophical predilection
and moral intuition. All manner of "liberties," the Court tells us,
inhere in the Constitution, and are enforceable by this Court - not just those
mentioned in the text or established in the traditions of our society. Ante, at
847-849. Why even the Ninth Amendment - which says only that "[t]he
enumeration in the Constitution, of certain rights, shall not be construed to
deny or disparage others retained by the people" - is, despite our
contrary understanding for almost 200 years, a literally boundless source of
additional, unnamed, unhinted-at "rights," definable and enforceable
by us, through "reasoned judgment." Ante, at 848-849.
What makes all this relevant to the bothersome application of
"political pressure" against the Court are the twin facts that the
American people love democracy and the American people are not fools. As long
as this Court thought (and the people thought) that we Justices were doing
essentially lawyers' work up here - reading text and discerning our society's
traditional understanding of that text - the public pretty much left us alone.
Texts and traditions are facts to study, not convictions to demonstrate about.
But if in reality, our process of constitutional adjudication consists
primarily of making value judgments; if we can ignore a long and clear
tradition clarifying an ambiguous text, as we did, for example, five days ago
in declaring unconstitutional invocations and benedictions at public high
school graduation ceremonies, Lee v. Weisman, 505
U.S. 577 (1992); if, as I say, our pronouncement of constitutional law
rests primarily on value [505 U.S.
833, 1001] judgments, then a free and intelligent people's
attitude towards us can be expected to be (ought to be) quite different. The
people know that their value judgments are quite as good as those taught in any
law school - maybe better. If, indeed, the "liberties" protected by
the Constitution are, as the Court says, undefined and unbounded, then the
people should demonstrate, to protest that we do not implement their values
instead of ours. Not only that, but the confirmation hearings for new Justices
should deteriorate into question-and-answer sessions in which Senators go through
a list of their constituents' most favored and most disfavored alleged
constitutional rights, and seek the nominee's commitment to support or oppose
them. Value judgments, after all, should be voted on, not dictated; and if our
Constitution has somehow accidentally committed them to the Supreme Court, at
least we can have a sort of plebiscite each time a new nominee to that body is
put forward. JUSTICE BLACKMUN not only regards this prospect with equanimity,
he solicits it. Ante, at 943.
* * *
There is a poignant aspect to today's opinion. Its length,
and what might be called its epic tone, suggest that its authors believe they
are bringing to an end a troublesome era in the history of our Nation, and of
our Court. "It is the dimension" of authority, they say, to cal[l]
the contending sides of national controversy to end their national division by
accepting a common mandate rooted in the Constitution. Ante, at 867.
There comes vividly to mind a portrait by Emanuel Leutze that hangs in the
Harvard Law School: Roger Brooke Taney, painted in 1859, the 82nd year of his
life, the 24th of his Chief Justiceship, the second after his opinion in Dred
Scott. He is in black, sitting in a shadowed red armchair, left hand resting
upon a pad of paper in his lap, right hand hanging limply, almost lifelessly,
beside the inner arm of the chair. He sits facing the viewer and staring
straight out. There [505 U.S. 833,
1002] seems to be on his face, and in his deep-set eyes, an
expression of profound sadness and disillusionment. Perhaps he always looked
that way, even when dwelling upon the happiest of thoughts. But those of us who
know how the lustre of his great Chief Justiceship came to be eclipsed by Dred
Scott cannot help believing that he had that case - its already apparent
consequences for the Court and its soon-to-be-played-out consequences for the
Nation - burning on his mind. I expect that, two years earlier, he, too, had
thought himself call[ing] the contending sides of national controversy to end
their national division by accepting a common mandate rooted in the
Constitution.
It is no more realistic for us in this case than it was for him in that to
think that an issue of the sort they both involved - an issue involving life
and death, freedom and subjugation - can be "speedily and finally
settled" by the Supreme Court, as President James Buchanan, in his
inaugural address, said the issue of slavery in the territories would be. See
Inaugural Addresses of the Presidents of the United States, S.Doc. No. 101-10,
p. 126 (1989). Quite to the contrary, by foreclosing all democratic outlet for
the deep passions this issue arouses, by banishing the issue from the political
forum that gives all participants, even the losers, the satisfaction of a fair
hearing and an honest fight, by continuing the imposition of a rigid national
rule instead of allowing for regional differences, the Court merely prolongs
and intensifies the anguish.
We should get out of this area, where we have no right to be, and where we
do neither ourselves nor the country any good by remaining.
[ Footnote 1 ] The
Court's suggestion, ante, at 847-848, that adherence to tradition would require
us to uphold laws against interracial marriage is entirely wrong. Any tradition
in that case was contradicted by a text - an Equal Protection Clause that
explicitly establishes racial equality as a constitutional value. See Loving v.
Virginia, 388
U.S. 1, 9 (1967) ("In the case at bar, . . . we deal with statutes
containing racial classifications, and the fact of equal application does not
immunize the statute from the very heavy burden of justification which the
Fourteenth Amendment has traditionally required of state statutes drawn
according to race"); see also id., at 13 (Stewart, J., concurring in
judgment). The enterprise launched in Roe v. Wade, 410
U.S. 113 (1973), by contrast, sought to establish - in the teeth of a
clear, contrary tradition - a value found nowhere in the constitutional text.
There is, of course, no comparable tradition barring recognition of a
"liberty interest" in carrying one's child to term free from state
efforts to kill it. For that reason, it does not follow that the Constitution
does not [505 U.S. 833, 981]
protect childbirth simply because it does not protect abortion.
The Court's contention, ante, at 859, that the only way to protect childbirth
is to protect abortion shows the utter bankruptcy of constitutional analysis
deprived of tradition as a validating factor. It drives one to say that the
only way to protect the right to eat is to acknowledge the constitutional right
to starve oneself to death.
[ Footnote 2 ]
JUSTICE BLACKMUN's parade of adjectives is similarly empty: abortion is among
"`the most intimate and personal choices,'" ante, at 923; it is a
matter "central to personal dignity and autonomy," ibid.; and it
involves "personal decisions that profoundly affect bodily integrity,
identity, and destiny," ante, at 927. JUSTICE STEVENS is not much less
conclusory: the decision to choose abortion is a matter of "the highest
privacy and the [505 U.S. 833,
984] most personal nature," ante, at 915; it involves a
"`difficult choice having serious and personal consequences of major
importance to [a woman's] future,'" ibid.; the authority to make this
"traumatic and yet empowering decisio[n]" is "an element of
basic human dignity," ibid.; and it is "nothing less than a matter of
conscience," ibid.
[ Footnote 3 ] The
joint opinion is clearly wrong in asserting, ante, at 874, that "the
Court's early abortion cases adhered to" he "undue burden"
standard. The passing use of that phrase in JUSTICE BLACKMUN's opinion for the
Court in Bellotti v. Baird, 428
U.S. 132, 147 (1976) (Bellotti I), was not by way of setting forth the
standard of unconstitutionality, as JUSTICE O'CONNOR's later opinions did, but
by way of expressing the conclusion of unconstitutionality. Justice Powell for
a time appeared to employ a variant of "undue burden" analysis in
several nonmajority opinions, see, e.g., Bellotti v. Baird, 443
U.S. 622, 647 (1979) (Bellotti II); Carey v. Population Services
International, 431
U.S. 678, 705 (1977) (opinion concurring in part and concurring in
judgment), but he too ultimately rejected that standard in his opinion for the
Court in Akron v. Akron Center for Reproductive Health, Inc., 462
U.S. 416, 420 , n. 1 (1983) (Akron I). The joint opinion's reliance on
Maher v. Roe, 432
U.S. 464, 473 (1977), and Harris v. McRae, 448
U.S. 297, 314 (1980), is entirely misplaced, since those cases did not
involve regulation of abortion, but mere refusal to fund it. In any event,
JUSTICE O'CONNOR's earlier formulations have apparently now proved
unsatisfactory to the three Justices, who - in the name of stare decisis, no
less - today find it necessary to devise an entirely new version of "undue
burden" analysis. See ante, at 877-879.
[ Footnote 4 ] The
joint opinion further asserts that a law imposing an undue burden on abortion
decisions is not a "permissible" means of serving
"legitimate" state interests. Ante, at 877. This description of the
undue burden standard in terms more commonly associated with the rational basis
test will come as a surprise even to those who have followed closely our
wanderings in this forsaken wilderness. See, e.g., Akron I, supra, at 463
(O'CONNOR, J., dissenting) ("The `undue burden' . . . represents the
required threshold inquiry that must be conducted before this Court can require
a State to justify its legislative actions under the exacting `compelling state
interest' standard"); see also Hodgson v. Minnesota, 497
U.S. 417, 458 -460 (1990) (O'CONNOR, J., concurring in part and concurring
in judgment in part); Thornburgh v. American College of Obstetricians and
Gynecologists, 476
U.S. 747, 828 (1986) (O'CONNOR, J., dissenting). This confusing equation of
the two standards is apparently designed to explain how one of the Justices who
joined the plurality opinion in Webster v. Reproductive Health Services, 492
U.S. 490 (1989), which adopted the rational-basis test, could join an
opinion expressly adopting the undue burden test. See id., at 520 (rejecting
the view that abortion is a "fundamental right," instead inquiring
whether a law regulating the woman's "liberty interest" in abortion
is "reasonably designed" to further "legitimate" state
ends). The same motive also apparently underlies the joint opinion's erroneous
citation of the plurality opinion in Ohio v. Akron Center for Reproductive
Health, 497
U.S. 502, 506 (1990) (Akron II) (opinion of KENNEDY, J.), as applying the
undue burden test. See ante, at 876 (using this citation to support the
proposition that "two of us" - i.e., two of the authors of the joint
opinion - have previously applied this test). In fact, Akron II does not
mention the undue burden standard until the conclusion of the opinion, when it
states that the statute at issue "does not impose an undue, or otherwise
unconstitutional, burden." 497
U.S., at 519 (emphasis added). I fail to see how anyone can think that
saying a statute does not impose an unconstitutional burden under any standard,
including [505 U.S. 833, 987]
the undue burden test, amounts to adopting the undue burden test
as the exclusive standard. The Court's citation of Hodgson as reflecting
JUSTICE KENNEDY's and JUSTICE O'CONNOR's "shared premises," ante at
878, is similarly inexplicable, since the word "undue" was never even
used in the former's opinion in that case. I joined JUSTICE KENNEDY's opinions
in both Hodgson and Akron II; I should be grateful, I suppose, that the joint
opinion does not claim that I, too, have adopted the undue burden test.
[ Footnote 5 ] Of
course, JUSTICE O'CONNOR was correct in her former view. The arbitrariness of
the viability line is confirmed by the Court's inability to offer any
justification for it beyond the conclusory assertion that it is only at that
point that the unborn child's life "can in reason and all fairness" [505 U.S. 833, 990] be
thought to override the interests of the mother. Ante, at 870. Precisely why is
it that, at the magical second when machines currently in use (though not
necessarily available to the particular woman) are able to keep an unborn child
alive apart from its mother, the creature is suddenly able (under our
Constitution) to be protected by law, whereas, before that magical second, it was
not? That makes no more sense than according infants legal protection only
after the point when they can feed themselves.
[ Footnote 6 ] The
joint opinion is not entirely faithful to this principle, however. In approving
the District Court's factual findings with respect to the spousal notice
provision, it relies extensively on nonrecord materials, and, in reliance upon
them, adds a number of factual conclusions of its own. Ante, at 891-893. Because
this additional factfinding pertains to matters that surely are "subject
to reasonable dispute," Fed.Rule Evid. 201(b), the joint opinion must be
operating on the premise that these are "legislative," rather than
"adjudicative," facts, see Rule 201(a). But if a court can find an
undue burden simply by selectively string-citing the right social science
articles, I do not see the point of emphasizing or requiring "detailed
factual findings" in the District Court.
[ Footnote 7 ]
JUSTICE BLACKMUN's effort to preserve as much of Roe as possible leads him to
read the joint opinion as more "constan[t]" and "steadfast"
than can be believed. He contends that the joint opinion's "undue
burden" standard requires the application of strict scrutiny to "all
non-de minimis" abortion regulations, ante, at 926, but that could only be
true if a "substantial obstacle," ante, at 877 (joint opinion), were
the same thing as a non-de minimis obstacle - which it plainly is not.