Home |
Climate Change Project |
Table of Contents |
Courses | Search |
| [1] | SUPREME COURT OF THE UNITED STATES |
| [2] | No. 81-746 |
| [3] | 1983.SCT.2422 <http://www.versuslaw.com>,
462 U.S. 416, 103 S. Ct. 2481, 76 L. Ed. 2d 687, 51 U.S.L.W. 4767 |
| [4] | June 15, 1983 |
| [5] | CITY OF AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH, INC., ET AL. |
| [6] | CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT. |
| [7] | Alan G. Segedy argued the cause for petitioner in No. 81-746 and respondent
in No. 81-1172. With him on the briefs was Robert D. Pritt. Mr. Segedy and
Robert A. Destro filed a brief for Seguin et al., respondents under this
Court's Rule 19.6, in support of petitioner in No. 81-746 and respondent
in No. 81-1172. |
| [8] | Solicitor General Lee argued the cause for the United States as amicus
curiae. With him on the brief were Assistant Attorney General McGrath and
Deputy Solicitor General Geller. |
| [9] | Stephan Landsman argued the cause for respondents in No. 81-746 and petitioners
in No. 81-1172. With him on the briefs were Janet Benshoof, Suzanne M. Lynn,
Nan D. Hunter, Lois J. Lipton, and Gordon Beggs.+ |
| [10] | Powell, J., delivered the opinion of the Court, in which Burger, C. J.,
and Brennan, Marshall, Blackmun, and Stevens, JJ., joined. O'connor, J.,
filed a Dissenting opinion, in which White and Rehnquist, JJ., joined, post,
p. 452. |
| [11] | The opinion of the court was delivered by: Powell |
| [12] | An Akron, Ohio, ordinance, inter alia, (1) requires all abortions performed
after the first trimester of pregnancy to be performed in a hospital (§
1870.03); (2) prohibits a physician from performing an abortion on an unmarried
minor under the age of 15 unless he obtains the consent of one of her parents
or unless the minor obtains an order from a court having jurisdiction over
her that the abortion be performed (§ 1870.05(B)); (3) requires that
the attending physician inform his patient of the status of her pregnancy,
the development of her fetus, the date of possible viability, the physical
and emotional complications that may result from an abortion, and the availability
of agencies to provide her with assistance and information with respect
to birth control, adoption, and childbirth (§ 1870.06(B)), and also
inform her of the particular risks associated with her pregnancy and the
abortion technique to be employed (§ 1870.06(C)); (4) prohibits a physician
from performing an abortion until 24 hours after the pregnant woman signs
a consent form (§ 1870.07); and (5) requires physicians performing
abortions to ensure that fetal remains are disposed of in a "humane and
sanitary manner" (§ 1870.16). A violation of the ordinance is punishable
as a misdemeanor. Respondents and cross-petitioners filed an action in Federal
District Court against petitioners and cross-respondents, challenging the
ordinance. The District Court invalidated §§ 1870.05(B), 1870.06(B),
and 1870.16, but upheld §§ 1870.03, 1870.06(C), and 1870.07. The
Court of Appeals affirmed as to §§ 1870.03, 1870.05(B), 1870.06(B),
and 1870.16, but reversed as to §§ 1870.06(C) and 1870.07. |
| [13] | Held : |
| [14] | 1. Section 1870.03 is unconstitutional. Pp. 431-439. |
| [15] | (a) While a State's interest in health regulation becomes compelling at
approximately the end of the first trimester, the State's regulation may
be upheld only if it is reasonably designed to further that interest. If
during a substantial portion of the second trimester the State's regulation
departs from accepted medical practice, it may not be upheld simply because
it may be reasonable for the remaining portion of the trimester. Rather,
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
may be furthered. Pp. 433-434. |
| [16] | (b) It cannot be said that the lines drawn in § 1870.03 are reasonable.
By preventing the performance of dilation-and-evacuation abortions in an
appropriate nonhospital setting, Akron has imposed a heavy and unnecessary
burden on women's access to a relatively inexpensive, otherwise accessible,
and safe abortion procedure. Section 1870.03 has the effect of inhibiting
the vast majority of abortions after the first trimester and therefore unreasonably
infringes upon a woman's constitutional right to obtain an abortion. Pp.
434-439. |
| [17] | 2. Section 1870.05(B) is unconstitutional as making a blanket determination
that all minors under the age of 15 are too immature to make an abortion
decision or that an abortion never may be in the minor's best interests
without parental approval. Under circumstances where the Ohio statute governing
juvenile proceedings does not mention minors' abortions nor suggest that
the Ohio Juvenile Court has authority to inquire into a minor's maturity
or emancipation, § 1870.05(B), as applied in juvenile proceedings,
is not reasonably susceptible of being construed to create an opportunity
for case-by-case evaluations of the maturity of pregnant minors. Pp. 439-442. |
| [18] | 3. Sections 1870.06(B) and 1870.06(C) are unconstitutional. Pp. 442-449. |
| [19] | (a) The validity of an informed consent requirement rests on the State's
interest in protecting the pregnant woman's health. But this does not mean
that a State has unreviewable authority to decide what information a woman
must be given before she chooses to have an abortion. A State may not adopt
regulations designed to influence the woman's informed choice between abortion
or childbirth. Pp. 442-444. |
| [20] | (b) Section 1870.06(B) attempts to extend the State's interest in ensuring
"informed consent" beyond permissible limits, and intrudes upon the discretion
of the pregnant woman's physician. While a State may require a physician
to make certain that his patient understands the physical and emotional
implications of having an abortion, § 1870.06(B) goes far beyond merely
describing the general subject matter relevant to informed consent. By insisting
upon recitation of a lengthy and inflexible list of information, the section
unreasonably has placed obstacles in the path of the physician. Pp. 444-445. |
| [21] | (c) With respect to § 1870.06(C)'s requirement that the "attending
physician" must inform the woman of the specified information, it is unreasonable
for a State to insist that only a physician is competent to provide the
information and counseling relevant to informed consent. Pp. 446-449. |
| [22] | 4. Section 1870.07 is unconstitutional. Akron has failed to demonstrate
that any legitimate state interest is furthered by an arbitrary and inflexible
waiting period. There is no evidence that the abortion procedure will be
performed more safely. Nor does it appear 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. Pp. 449-451. |
| [23] | 5. Section 1870.16 violates the Due Process Clause by failing to give
a physician fair notice that his contemplated conduct is forbidden. Pp.
451-452. |
| [24] | JUSTICE POWELL delivered the opinion of the Court. |
| [25] | In this litigation we must decide the constitutionality of several provisions
of an ordinance enacted by the city of Akron, Ohio, to regulate the performance
of abortions. Today we also review abortion regulations enacted by the State
of Missouri, see Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft,
post, p. 476, and by the State of Virginia, see Simopoulos v. Virginia,
post, p. 506. |
| [26] | These cases come to us a decade after we held in Roe v.
Wade, 410 U.S. 113 (1973), that the right of privacy, grounded
in the concept of personal liberty guaranteed by the Constitution, encompasses
a woman's right to decide whether to terminate her pregnancy. Legislative
responses to the Court's decision have required us on several occasions,
and again today, to define the limits of a State's authority to regulate
the performance of abortions. And arguments continue to be made, in these
cases as well, that we erred in interpreting the Constitution. Nonetheless,
the doctrine of stare decisis, while perhaps never entirely persuasive on
a constitutional question, is a doctrine that demands respect in a society
governed by the rule of law. *fn1
We respect it today, and reaffirm Roe v. Wade. |
| [27] | I |
| [28] | In February 1978 the City Council of Akron enacted Ordinance No. 160-1978,
entitled "Regulation of Abortions." *fn2
The ordinance sets forth 17 provisions that regulate the performance of
abortions, see Akron Codified Ordinances, ch. 1870, 5 of which are at issue
in this case: |
| [29] | (i) Section 1870.03 requires that all abortions performed after the first
trimester of pregnancy be performed in a hospital. *fn3 |
| [30] | (ii) Section 1870.05 sets forth requirements for notification of and consent
by parents before abortions may be performed on unmarried minors. *fn4 |
| [31] | (iii) Section 1870.06 requires that the attending physician make certain
specified statements to the patient "to insure that the consent for an abortion
is truly informed consent." *fn5 |
| [32] | (iv) Section 1870.07 requires a 24-hour waiting period between the time
the woman signs a consent form and the time the abortion is performed. *fn6 |
| [33] | (v) Section 1870.16 requires that fetal remains be "disposed of in a humane
and sanitary manner." *fn7 |
| [34] | A violation of any section of the ordinance is punishable as a criminal
misdemeanor. § 1870.18. If any provision is invalidated, it is to be
severed from the remainder of the ordinance. *fn8
The ordinance became effective on May 1, 1978. |
| [35] | On April 19, 1978, a lawsuit challenging virtually all of the ordinance's
provisions was filed in the District Court for the Northern District of
Ohio. The plaintiffs, respondents and cross-petitioners in this Court, were
three corporations that operate abortion clinics in Akron and a physician
who has performed abortions at one of the clinics. The defendants, petitioners
and cross-respondents here, were the city of Akron and three city officials
(Akron). Two individuals (intervenors) were permitted to intervene as co-defendants
"in their individual capacity as parents of unmarried minor daughters of
childbearing age." 479 F.Supp. 1172, 1181 (1979). On April 27, 1978, the
District Court preliminarily enjoined enforcement of the ordinance. |
| [36] | In August 1979, after hearing evidence, the District Court ruled on the
merits. It found that plaintiffs lacked standing to challenge seven provisions
of the ordinance, none of which is before this Court. The District Court
invalidated four provisions, including § 1870.05 (parental notice and
consent), § 1870.06(B) (requiring disclosure of facts concerning the
woman's pregnancy, fetal development, the complications of abortion, and
agencies available to assist the woman), and § 1870.16 (disposal of
fetal remains). The court upheld the constitutionality of the remainder
of the ordinance, including § 1870.03 (hospitalization for abortions
after the first trimester), § 1870.06(C) (requiring disclosure of the
particular risks of the woman's pregnancy and the abortion technique to
be employed), and § 1870.07 (24-hour waiting period). |
| [37] | All parties appealed some portion of the District Court's judgment. The
Court of Appeals for the Sixth Circuit affirmed in part and reversed in
part. 651 F.2d 1198 (1981). It affirmed the District Court's decision that
§ 1870.03's hospitalization requirement is constitutional. It also
affirmed the ruling that §§ 1870.05, 1870.06(B), and 1870.16 are
unconstitutional. The Court of Appeals reversed the District Court's decision
on §§ 1870.06(C) and 1870.07, finding these provisions to be unconstitutional. |
| [38] | Three separate petitions for certiorari were filed. In light of the importance
of the issues presented, and in particular the conflicting decisions as
to whether a State may require that all second-trimester abortions be performed
in a hospital, *fn9 we granted
both Akron's and the plaintiffs' petitions. 456 U.S. 988 (1982). We denied
the intervenors' petition, Seguin v. Akron Center for Reproductive Health,
Inc., 456 U.S. 989 (1982), but they have participated in this Court as respondents
under our Rule 19.6. We now reverse the judgment of the Court of Appeals
upholding Akron's hospitalization requirement, but affirm the remainder
of the decision invalidating the provisions on parental consent, informed
consent, waiting period, and disposal of fetal remains. |
| [39] | II |
| [40] | In Roe v. Wade, the Court held
that the "right of privacy, . . . founded in the Fourteenth Amendment's
concept of personal liberty and restrictions upon state action, . . . is
broad enough to encompass a woman's decision whether or not to terminate
her pregnancy." 410 U.S., at 153. Although the Constitution does not specifically
identify this right, the history of this Court's constitutional adjudication
leaves no doubt that "the 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." Poe v. Ullman,
367 U.S. 497, 543 (1961) (Harlan, J., Dissenting from dismissal of appeal).
Central among these protected liberties is an individual's "freedom of personal
choice in matters of marriage and family life." Roe, 410 U.S., at 169 (Stewart,
J., Concurring). See, e. g., Eisenstadt v. Baird, 405 U.S. 438 (1972); Loving
v. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 479 (1965);
Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262
U.S. 390 (1923). The decision in Roe was based firmly on this long-recognized
and essential element of personal liberty. |
| [41] | The Court also has recognized, because abortion is a medical procedure,
that the full vindication of the woman's fundamental right necessarily requires
that her physician be given "the room he needs to make his best medical
judgment." Doe v. Bolton, 410 U.S. 179, 192 (1973). See Whalen v. Roe, 429
U.S. 589, 604-605, n. 33 (1977). The physician's exercise of this medical
judgment encompasses both assisting the woman in the decisionmaking process
and implementing her decision should she choose abortion. See Colautti v.
Franklin, 439 U.S. 379, 387 (1979). |
| [42] | At the same time, the Court in Roe acknowledged that the woman's fundamental
right "is not unqualified and must be considered against important state
interests in abortion." Roe, 410 U.S., at 154. But restrictive state regulation
of the right to choose abortion, as with other fundamental rights subject
to searching judicial examination, must be supported by a compelling state
interest. Id., at 155. We have recognized two such interests that may justify
state regulation of abortions. *fn10 |
| [43] | First, a State has an "important and legitimate interest in protecting
the potentiality of human life." Id., at 162. Although this interest exists
"throughout the course of the woman's pregnancy," Beal v. Doe, 432 U.S.
438, 446 (1977), it becomes compelling only at viability, the point at which
the fetus "has the capability of meaningful life outside the mother's womb,"
Roe, supra, at 163. See Planned Parenthood of Central Missouri v. Danforth,
428 U.S. 52, 63-65 (1976). At viability this interest in protecting the
potential life of the unborn child is so important that the State may proscribe
abortions altogether, "except when it is necessary to preserve the life
or health of the mother." Roe, 410 U.S., at 164. |
| [44] | Second, because a State has a legitimate concern with the health of women
who undergo abortions, "a State may properly assert important interests
in safeguarding health in maintaining medical standards." Id., at 154. We
held in Roe, however, that this health interest does not become compelling
until "approximately the end of the first trimester" of pregnancy. *fn11
Id., at 163. Until that time, a pregnant woman must be permitted, in consultation
with her physician, to decide to have an abortion and to effectuate that
decision "free of interference by the State." *fn12
Ibid. |
| [45] | This does not mean that a State never may enact a regulation touching
on the woman's abortion right during the first weeks of pregnancy. Certain
regulations that have no significant impact on the woman's exercise of her
right may be permissible where justified by important state health objectives.
In Danforth, supra, we unanimously upheld two Missouri statutory provisions,
applicable to the first trimester, requiring the woman to provide her informed
written consent to the abortion and the physician to keep certain records,
even though comparable requirements were not imposed on most other medical
procedures. See 428 U.S., at 65-67, 79-81. The decisive factor was that
the State met its burden of demonstrating that these regulations furthered
important health-related state concerns. *fn13
But even these minor regulations on the abortion procedure during the first
trimester may not interfere with physician-patient consultation or with
the woman's choice between abortion and childbirth. See id., at 81. |
| [46] | From approximately the end of the first trimester of pregnancy, the State
"may regulate the abortion procedure to the extent that the regulation reasonably
relates to the preservation and protection of maternal health." *fn14
Roe, 410 U.S., at 163. The State's discretion to regulate on this basis
does not, however, permit it to adopt abortion regulations that depart from
accepted medical practice. We have rejected a State's attempt to ban a particular
second-trimester abortion procedure, where the ban would have increased
the costs and limited the availability of abortions without promoting important
health benefits. See Danforth, 428 U.S., at 77-78. If a State requires licensing
or undertakes to regulate the performance of abortions during this period,
the health standards adopted must be "legitimately related to the objective
the State seeks to accomplish." Doe, 410 U.S., at 195. |
| [47] | III |
| [48] | Section 1870.03 of the Akron ordinance requires that any abortion performed
"upon a pregnant woman subsequent to the end of the first trimester of her
pregnancy" *fn15 must be "performed
in a hospital." A "hospital" is "a general hospital or special hospital
devoted to gynecology or obstetrics which is accredited by the Joint Commission
on Accreditation of Hospitals or by the American Osteopathic Association."
§ 1870.01(B). Accreditation by these organizations requires compliance
with comprehensive standards governing a wide variety of health and surgical
services. *fn16 The ordinance
thus prevents the performance of abortions in outpatient facilities that
are not part of an acute-care, full-service hospital. *fn17 |
| [49] | In the District Court plaintiffs sought to demonstrate that this hospitalization
requirement has a serious detrimental impact on a woman's ability to obtain
a second-trimester abortion in Akron and that it is not reasonably related
to the State's interest in the health of the pregnant woman. The District
Court did not reject this argument, but rather found the evidence "not .
. . so convincing that it is willing to discard the Supreme Court's formulation
in Roe" of a line between impermissible first-trimester regulation and permissible
second-trimester regulation. 479 F.Supp., at 1215. The Court of Appeals
affirmed on a similar basis. It accepted plaintiffs' argument that Akron's
hospitalization requirement did not have a reasonable health justification
during at least part of the second trimester, but declined to "retreat from
the 'bright line' in Roe v. Wade."
651 F.2d, at 1210. *fn18 We believe
that the courts below misinterpreted this Court's prior decisions, and we
now hold that § 1870.03 is unconstitutional. |
| [50] | A |
| [51] | In Roe v. Wade the Court held
that after the end of the first trimester of pregnancy the State's interest
becomes compelling, and it may "regulate the abortion procedure to the extent
that the regulation reasonably relates to the preservation and protection
of maternal health." 410 U.S., at 163. We noted, for example, that States
could establish requirements relating "to the facility in which the procedure
is to be performed, that is, whether it must be in a hospital or may be
a clinic or some other place of less-than-hospital status." Ibid. In the
companion case of Doe v. Bolton the Court invalidated a Georgia requirement
that all abortions be performed in a hospital licensed by the State Board
of Health and accredited by the Joint Commission on Accreditation of Hospitals.
See 410 U.S., at 201. We recognized the State's legitimate health interests
in establishing, for second-trimester abortions, "standards for licensing
all facilities where abortions may be performed." Id., at 195. We found,
however, that "the State must show more than [was shown in Doe ] in order
to prove that only the full resources of a licensed hospital, rather than
those of some other appropriately licensed institution, satisfy these health
interests." Ibid. *fn19 |
| [52] | We reaffirm today, see (supra) , at 429, n. 11, that a State's interest
in health regulation becomes compelling at approximately the end of the
first trimester. The existence of a compelling state interest in health,
however, is only the beginning of the inquiry. The State's regulation may
be upheld only if it is reasonably designed to further that state interest.
See Doe, 410 U.S., at 195. And the Court in Roe did not hold that it always
is reasonable for a State to adopt an abortion regulation that applies to
the entire second trimester. A State necessarily must have latitude in adopting
regulations of general applicability in this sensitive area. But if it appears
that during a substantial portion of the second trimester the State's regulation
" from accepted medical practice," (supra) , at 431, the regulation may
not be upheld simply because it may be reasonable for the remaining portion
of the trimester. Rather, 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. |
| [53] | B |
| [54] | There can be no doubt that § 1870.03's second-trimester hospitalization
requirement places a significant obstacle in the path of women seeking an
abortion. A primary burden created by the requirement is additional cost
to the woman. The Court of Appeals noted that there was testimony that a
second-trimester abortion costs more than twice as much in a hospital as
in a clinic. See 651 F.2d, at 1209 (in-hospital abortion costs $850-$900,
whereas a dilatation-and-evacuation (D&E) abortion performed in a clinic
costs $350-$400). *fn20 Moreover,
the court indicated that second-trimester abortions were rarely performed
in Akron hospitals. Ibid. (only nine second-trimester abortions performed
in Akron hospitals in the year before trial). *fn21
Thus, a second-trimester hospitalization requirement may force women to
travel to find available facilities, resulting in both financial expense
and additional health risk. It therefore is apparent that a second-trimester
hospitalization requirement may significantly limit a woman's ability to
obtain an abortion. |
| [55] | Akron does not contend that § 1870.03 imposes only an insignificant
burden on women's access to abortion, but rather defends it as a reasonable
health regulation. This position had strong support at the time of Roe
v. Wade, as hospitalization for second-trimester
abortions was recommended by the American Public Health Association (APHA),
see Roe, 410 U.S., at 143-146, and the American College of Obstetricians
and Gynecologists (ACOG), see Standards for Obstetric-Gynecologic Services
65 (4th ed. 1974). Since then, however, the safety of second-trimester abortions
has increased dramatically. *fn22
The principal reason is that the D&E procedure is now widely and successfully
used for second-trimester abortions. *fn23
The Court of Appeals found that there was "an abundance of evidence that
D&E is the safest method of performing post-first trimester abortions today."
651 F.2d, at 1209. The availability of the D&E procedure during the interval
between approximately 12 and 16 weeks of pregnancy, a period during which
other second-trimester abortion techniques generally cannot be used, *fn24
has meant that women desiring an early second-trimester abortion no longer
are forced to incur the health risks of waiting until at least the 16th
week of pregnancy. |
| [56] | For our purposes, an even more significant factor is that experience indicates
that D&E may be performed safely on an outpatient basis in appropriate nonhospital
facilities. The evidence is strong enough to have convinced the APHA to
abandon its prior recommendation of hospitalization for all second-trimester
abortions: |
| [57] | "Current data show that abortions occurring in the second trimester can
be safely performed by the Dilatation and Evacuation (D and E) procedure.
. . . Requirements that all abortions after 12 weeks of gestation be performed
in hospitals increase the expense and inconvenience to the woman without
contributing to the safety of the procedure." APHA Recommended Program Guide
for Abortion Services (Revised 1979), 70 Am. J. Public Health 652, 654 (1980)
(hereinafter APHA Recommended Guide). |
| [58] | Similarly, the ACOG no longer suggests that all second-trimester abortions
be performed in a hospital. It recommends that abortions performed in a
physician's office or outpatient clinic be limited to 14 weeks of pregnancy,
but it indicates that abortions may be performed safely in "a hospital-based
or in a free-standing ambulatory surgical facility, or in an outpatient
clinic meeting the criteria required for a free-standing surgical facility,"
until 18 weeks of pregnancy. ACOG, Standards for Obstetric-Gynecologic Services
54 (5th ed. 1982). |
| [59] | These developments, and the professional commentary supporting them, constitute
impressive evidence that -- at least during the early weeks of the second
trimester -- D&E abortions may be performed as safely in an outpatient clinic
as in a full-service hospital. *fn25
We conclude, therefore, that "present medical knowledge," Roe, supra, at
163, convincingly undercuts Akron's justification for requiring that all
second-trimester abortions be performed in a hospital. *fn26 |
| [60] | Akron nonetheless urges that " fact that some mid-trimester abortions
may be done in a minimally equipped clinic does not invalidate the regulation."
*fn27 Brief for Respondents in
No. 81-1172, p. 19. It is true that a state abortion regulation is not unconstitutional
simply because it does not correspond perfectly in all cases to the asserted
state interest. But the lines drawn in a state regulation must be reasonable,
and this cannot be said of § 1870.03. By preventing the performance
of D&E abortions in an appropriate nonhospital setting, Akron has imposed
a heavy, and unnecessary, burden on women's access to a relatively inexpensive,
otherwise accessible, and safe abortion procedure. *fn28
Section 1870.03 has "the effect of inhibiting . . . the vast majority of
abortions after the first 12 weeks," Danforth, 428 U.S., at 79, and therefore
unreasonably infringes upon a woman's constitutional right to obtain an
abortion. |
| [61] | IV |
| [62] | We turn next to § 1870.05(B), the provision prohibiting a physician
from performing an abortion on a minor pregnant woman under the age of 15
unless he obtains "the informed written consent of one of her parents or
her legal guardian" or unless the minor obtains "an order from a court having
jurisdiction over her that the abortion be performed or induced." The District
Court invalidated this provision because " does not establish a procedure
by which a minor can avoid a parental veto of her abortion decision by demonstrating
that her decision is, in fact, informed. Rather, it requires, in all cases,
both the minor's informed consent and either parental consent or a court
order." 479 F.Supp., at 1201. The Court of Appeals affirmed on the same
basis. *fn29 |
| [63] | The relevant legal standards are not in dispute. The Court has held that
"the State may not impose a blanket provision . . . requiring the consent
of a parent or person in loco parentis as a condition for abortion of an
unmarried minor." Danforth, supra, at 74. In Bellotti v. Baird, 443 U.S.
622 (1979) (Bellotti II), a majority of the Court indicated that a State's
interest in protecting immature minors will sustain a requirement of a consent
substitute, either parental or judicial. See id., at 640-642 (plurality
opinion for four Justices); id., at 656-657 (WHITE, J., Dissenting) (expressing
approval of absolute parental or judicial consent requirement). See also
Danforth, supra, at 102-105 (STEVENS, J., Concurring in part and Dissenting
in part). The Bellotti II plurality cautioned, however, that the State must
provide an alternative procedure whereby a pregnant minor may 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.
443 U.S., at 643-644. Under these decisions, it is clear that Akron may
not make a blanket determination that all minors under the age of 15 are
too immature to make this decision or that an abortion never may be in the
minor's best interests without parental approval. |
| [64] | Akron's ordinance does not create expressly the alternative procedure
required by Bellotti II. But Akron contends that the Ohio Juvenile Court
will qualify as a "court having jurisdiction" within the meaning of §
1870.05(B), and that "it is not to be assumed that during the course of
the juvenile proceedings the Court will not construe the ordinance in a
manner consistent with the constitutional requirement of a determination
of the minor's ability to make an informed consent." Brief for Petitioner
in No. 81-746, p. 28. Akron concludes that the courts below should not have
invalidated § 1870.05(B) on its face. The city relies on Bellotti v.
Baird, 428 U.S. 132 (1976) (Bellotti I), in which the Court did not decide
whether a State's parental consent provisions were unconstitutional as applied
to mature minors, holding instead that "abstention is appropriate where
an unconstrued state statute is susceptible of a construction by the state
judiciary 'which might avoid in whole or in part the necessity for federal
constitutional adjudication, or at least materially change the nature of
the problem.'" Id., at 146-147 (quoting Harrison v. NAACP, 360 U.S. 167,
177 (1959)). See also H. L. v. Matheson, 450 U.S. 398 (1981) (refusing to
decide whether parental notice statute would be constitutional as applied
to mature minors). *fn30 |
| [65] | We do not think that the abstention principle should have been applied
here. It is reasonable to assume, as we did in Bellotti I, supra, and Matheson,
supra, that a state court presented with a state statute specifically governing
abortion consent procedures for pregnant minors will attempt to construe
the statute consistently with constitutional requirements. This suit, however,
concerns a municipal ordinance that creates no procedures for making the
necessary determinations. Akron seeks to invoke the Ohio statute governing
juvenile proceedings, but that statute neither mentions minors' abortions
nor suggests that the Ohio Juvenile Court has authority to inquire into
a minor's maturity or emancipation. *fn31
In these circumstances, we do not think that the Akron ordinance, as applied
in Ohio juvenile proceedings, is reasonably susceptible of being construed
to create an "opportunity for case-by-case evaluations of the maturity of
pregnant minors." Bellotti II, supra, at 643, n. 23 (plurality opinion).
We therefore affirm the Court of Appeals' judgment that § 1870.05(B)
is unconstitutional. |
| [66] | V |
| [67] | The Akron ordinance provides that no abortion shall be performed except
"with the informed written consent of the pregnant woman, . . . given freely
and without coercion." § 1870.06(A). Furthermore, "in order to insure
that the consent for an abortion is truly informed consent," the woman must
be "orally informed by her attending physician" of the status of her pregnancy,
the development of her fetus, the date of possible viability, the physical
and emotional complications that may result from an abortion, and the availability
of agencies to provide her with assistance and information with respect
to birth control, adoption, and childbirth. § 1870.06(B). In addition,
the attending physician must inform her "of the particular risks associated
with her own pregnancy and the abortion technique to be employed . . . other
information which in his own medical judgment is relevant to her decision
as to whether to have an abortion or carry her pregnancy to term." §
1870.06(C). |
| [68] | The District Court found that § 1870.06(B) was unconstitutional,
but that § 1870.06(C) was related to a valid state interest in maternal
health. See 479 F.Supp., at 1203-1204. The Court of Appeals concluded that
both provisions were unconstitutional. See 651 F.2d, at 1207. We affirm. |
| [69] | A |
| [70] | In Danforth, we upheld a Missouri law requiring a pregnant woman to "
in writing her consent to the abortion and that her consent is informed
and freely given and is not the result of coercion." 428 U.S., at 85. We
explained: |
| [71] | "The decision to abort . . . is an important, and often a stressful one,
and it is desirable and imperative that it be made with full knowledge of
its nature and consequences. The woman is the one primarily concerned, and
her awareness of the decision and its significance may be assured, constitutionally,
by the State to the extent of requiring her prior written consent." Id.,
at 67. |
| [72] | We rejected the view that "informed consent" was too vague a term, construing
it to mean "the giving of information to the patient as to just what would
be done and as to its consequences. To ascribe more meaning than this might
well confine the attending physician in an undesired and uncomfortable straitjacket
in the practice of his profession." Id., at 67, n. 8. |
| [73] | The validity of an informed consent requirement thus rests on the State's
interest in protecting the health of the pregnant woman. The decision to
have an abortion has "implications far broader than those associated with
most other kinds of medical treatment," Bellotti II, 443 U.S., at 649 (plurality
opinion), and thus the State legitimately may seek to ensure that it has
been made "in the light of all attendant circumstances -- psychological
and emotional as well as physical -- that might be relevant to the well-being
of the patient." Colautti v. Franklin, 439 U.S., at 394. *fn32
This does not mean, however, that a State has unreviewable authority to
decide what information a woman must be given before she chooses to have
an abortion. It remains primarily the responsibility of the physician to
ensure that appropriate information is conveyed to his patient, depending
on her particular circumstances. Danforth 's recognition of the State's
interest in ensuring that this information be given will not justify abortion
regulations designed to influence the woman's informed choice between abortion
or childbirth. *fn33 |
| [74] | B |
| [75] | Viewing the city's regulations in this light, we believe that § 1870.06(B)
attempts to extend the State's interest in ensuring "informed consent" beyond
permissible limits. First, it is fair to say that much of the information
required is designed not to inform the woman's consent but rather to persuade
her to withhold it altogether. Subsection (3) requires the physician to
inform his patient that "the unborn child is a human life from the moment
of conception," a requirement inconsistent with the Court's holding in Roe
v. Wade that a State may not adopt one theory
of when life begins to justify its regulation of abortions. See 410 U.S.,
at 159-162. Moreover, much of the detailed description of "the anatomical
and physiological characteristics of the particular unborn child" required
by subsection (3) would involve at best speculation by the physician. *fn34
And subsection (5), that begins with the dubious statement that "abortion
is a major surgical procedure" *fn35
and proceeds to describe numerous possible physical and psychological complications
of abortion, *fn36 is a "parade
of horribles" intended to suggest that abortion is a particularly dangerous
procedure. |
| [76] | An additional, and equally decisive, objection to § 1870.06(B) is
its intrusion upon the discretion of the pregnant woman's physician. This
provision specifies a litany of information that the physician must recite
to each woman regardless of whether in his judgment the information is relevant
to her personal decision. For example, even if the physician believes that
some of the risks outlined in subsection (5) are nonexistent for a particular
patient, he remains obligated to describe them to her. In Danforth the Court
warned against placing the physician in just such an "undesired and uncomfortable
straitjacket." 428 U.S., at 67, n. 8. Consistent with its interest in ensuring
informed consent, a State may require that a physician make certain that
his patient understands the physical and emotional implications of having
an abortion. But Akron has gone far beyond merely describing the general
subject matter relevant to informed consent. By insisting upon recitation
of a lengthy and inflexible list of information, Akron unreasonably has
placed "obstacles in the path of the doctor upon whom [the woman is] entitled
to rely for advice in connection with her decision." Whalen v. Roe, 429
U.S., at 604, n. 33. *fn37 |
| [77] | C |
| [78] | Section 1870.06(C) presents a different question. Under this provision,
the "attending physician" must inform the woman |
| [79] | "of the particular risks associated with her own pregnancy and the abortion
technique to be employed including providing her with at least a general
description of the medical instructions to be followed subsequent to the
abortion in order to insure her safe recovery, and shall in addition provide
her with such other information which in his own medical judgment is relevant
to her decision as to whether to have an abortion or carry her pregnancy
to term." |
| [80] | The information required clearly is related to maternal health and to
the State's legitimate purpose in requiring informed consent. Nonetheless,
the Court of Appeals determined that it interfered with the physician's
medical judgment "in exactly the same way as section 1870.06(B). It requires
the doctor to make certain disclosures in all cases, regardless of his own
professional judgment as to the desirability of doing so." 651 F.2d, at
1207. This was a misapplication of Danforth. There we construed "informed
consent" to mean "the giving of information to the patient as to just what
would be done and as to its consequences." 428 U.S., at 67, n. 8. We see
no significant difference in Akron's requirement that the woman be told
of the particular risks of her pregnancy and the abortion technique to be
used, and be given general instructions on proper postabortion care. Moreover,
in contrast to subsection (B), § 1870.06(C) merely describes in general
terms the information to be disclosed. It properly leaves the precise nature
and amount of this disclosure to the physician's discretion and "medical
judgment." |
| [81] | The Court of Appeals also held, however, that § 1870.06(C) was invalid
because it required that the disclosure be made by the "attending physician."
The court found that "the practice of all three plaintiff clinics has been
for the counseling to be conducted by persons other than the doctor who
performs the abortion," 651 F.2d, at 1207, and determined that Akron had
not justified requiring the physician personally to describe the health
risks. Akron challenges this holding as contrary to our cases that emphasize
the importance of the physician-patient relationship. In Akron's view, as
in the view of the Dissenting Judge below, the "attending physician" requirement
"does no more than seek to ensure that there is in fact a true physician-patient
relationship even for the woman who goes to an abortion clinic." Id., at
1217 (Kennedy, J., Concurring in part and Dissenting in part). |
| [82] | Requiring physicians personally to discuss the abortion decision, its
health risks, and consequences with each patient may in some cases add to
the cost of providing abortions, though the record here does not suggest
that ethical physicians will charge more for adhering to this typical element
of the physician-patient relationship. Yet in Roe and subsequent cases we
have "stressed repeatedly the central role of the physician, both in consulting
with the woman about whether or not to have an abortion, and in determining
how any abortion was to be carried out." Colautti v. Franklin, 439 U.S.,
at 387. Moreover, we have left no doubt that, to ensure the safety of the
abortion procedure, the States may mandate that only physicians perform
abortions. See Connecticut v. Menillo, 423 U.S. 9, 11 (1975); Roe, 410 U.S.,
at 165. |
| [83] | We are not convinced, however, that there is as vital a state need for
insisting that the physician performing the abortion, or for that matter
any physician, personally counsel the patient in the absence of a request.
The State's interest is in ensuring that the woman's consent is informed
and unpressured; the critical factor is whether she obtains the necessary
information and counseling from a qualified person, not the identity of
the person from whom she obtains it. *fn38
Akron and intervenors strongly urge that the nonphysician counselors at
the plaintiff abortion clinics are not trained or qualified to perform this
important function. The courts below made no such findings, however, and
on the record before us we cannot say that the woman's consent to the abortion
will not be informed if a physician delegates the counseling task to another
qualified individual. |
| [84] | In so holding, we do not suggest that the State is powerless to vindicate
its interest in making certain the "important" and "stressful" decision
to abort " made with full knowledge of its nature and consequences." Danforth,
428 U.S., at 67. Nor do we imply that a physician may abdicate his essential
role as the person ultimately responsible for the medical aspects of the
decision to perform the abortion. *fn39
A State may define the physician's responsibility to include verification
that adequate counseling has been provided and that the woman's consent
is informed. *fn40 In addition,
the State may establish reasonable minimum qualifications for those people
who perform the primary counseling function. *fn41
See, e. g., Doe, 410 U.S., at 195 (State may require a medical facility
"to possess all the staffing and services necessary to perform an abortion
safely"). In light of these alternatives, we believe that it is unreasonable
for a State to insist that only a physician is competent to provide the
information and counseling relevant to informed consent. We affirm the judgment
of the Court of Appeals that § 1870.06(C) is invalid. |
| [85] | VI |
| [86] | The Akron ordinance prohibits a physician from performing an abortion
until 24 hours after the pregnant woman signs a consent form. § 1870.07.
*fn42 The District Court upheld
this provision on the ground that it furthered Akron's interest in ensuring
"that a woman's abortion decision is made after careful consideration of
all the facts applicable to her particular situation." 479 F.Supp., at 1204.
The Court of Appeals reversed, finding that the inflexible waiting period
had "no medical basis," and that careful consideration of the abortion decision
by the woman "is beyond the state's power to require." 651 F.2d, at 1208.
We affirm the Court of Appeals' judgment. |
| [87] | The District Court found that the mandatory 24-hour waiting period increases
the cost of obtaining an abortion by requiring the woman to make two separate
trips to the abortion facility. See 479 F.Supp., at 1204. Plaintiffs also
contend that because of scheduling difficulties the effective delay may
be longer than 24 hours, and that such a delay in some cases could increase
the risk of an abortion. Akron denies that any significant health risk is
created by a 24-hour waiting period, and argues that a brief period of delay
-- with the opportunity for reflection on the counseling received -- often
will be beneficial to the pregnant woman. |
| [88] | We find that Akron has failed to demonstrate that any legitimate state
interest is furthered by an arbitrary and inflexible waiting period. There
is no evidence suggesting that the abortion procedure will be performed
more safely. 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. The decision whether to proceed with an abortion
is one as to which it is important to " the physician adequate discretion
in the exercise of his medical judgment." Colautti v. Franklin, 439 U.S.,
at 387. In accordance with the ethical standards of the profession, a physician
will advise the patient to defer the abortion when he thinks this will be
beneficial to her. *fn43 But
if a woman, after appropriate counseling, is prepared to give her written
informed consent and proceed with the abortion, a State may not demand that
she delay the effectuation of that decision. |
| [89] | VII |
| [90] | Section § 1870.16 of the Akron ordinance requires physicians performing
abortions to "insure that the remains of the unborn child are disposed of
in a humane and sanitary manner." The Court of Appeals found that the word
"humane" was impermissibly vague as a definition of conduct subject to criminal
prosecution. The court invalidated the entire provision, declining to sever
the word "humane" in order to uphold the requirement that disposal be "sanitary."
See 651 F.2d, at 1211. We affirm this judgment. |
| [91] | Akron contends that the purpose of § 1870.16 is simply "'to preclude
the mindless dumping of aborted fetuses onto garbage piles.'" Planned Parenthood
Assn. v. Fitzpatrick, 401 F.Supp. 554, 573 (ED Pa. 1975) (three-Judge court)
(quoting State's characterization of legislative purpose), summarily aff'd
sub nom. Franklin v. Fitzpatrick, 428 U.S. 901 (1976). *fn44
It is far from clear, however, that this provision has such a limited intent.
The phrase "humane and sanitary" does, as the Court of Appeals noted, suggest
a possible intent to "mandate some sort of 'decent burial' of an embryo
at the earliest stages of formation." 651 F.2d, at 1211. This level of uncertainty
is fatal where criminal liability is imposed. See Colautti v. Franklin,
supra, at 396. Because § 1870.16 fails to give a physician "fair notice
that his contemplated conduct is forbidden," United States v. Harriss, 347
U.S. 612, 617 (1954), we agree that it violates the Due Process Clause.
*fn45 |
| [92] | VIII |
| [93] | We affirm the judgment of the Court of Appeals invalidating those sections
of Akron's "Regulations of Abortions" ordinance that deal with parental
consent, informed consent, a 24-hour waiting period, and the disposal of
fetal remains. The remaining portion of the judgment, sustaining Akron's
requirement that all second-trimester abortions be performed in a hospital,
is reversed. |
| [94] | It is so ordered. |
| [95] | Justice O'CONNOR, with whom JUSTICE WHITE and JUSTICE REHNQUIST join,
Dissenting. |
| [96] | In Roe v. Wade, 410 U.S. 113
(1973), the Court held that the "right of privacy . . . founded in the Fourteenth
Amendment's concept of personal liberty and restrictions upon state action
. . . is broad enough to encompass a woman's decision whether or not to
terminate her pregnancy." Id., at 153. The parties in these cases have not
asked the Court to re-examine the validity of that holding and the court
below did not address it. Accordingly, the Court does not re-examine its
previous holding. Nonetheless, it is apparent from the Court's opinion that
neither sound constitutional theory nor our need to decide cases based on
the application of neutral principles can accommodate an analytical framework
that varies according to the "stages" of pregnancy, where those stages,
and their concomitant standards of review, differ according to the level
of medical technology available when a particular challenge to state regulation
occurs. The Court's analysis of the Akron regulations is inconsistent both
with the methods of analysis employed in previous cases dealing with abortion,
and with the Court's approach to fundamental rights in other areas. |
| [97] | Our recent cases indicate that a regulation imposed on "a lawful abortion
'is not unconstitutional unless it unduly burdens the right to seek an abortion.'"
Maher v. Roe, 432 U.S. 464, 473 (1977) (quoting Bellotti v. Baird, 428 U.S.
132, 147 (1977) (Bellotti I)). See also Harris v. McRae, 448 U.S. 297, 314
(1980). In my view, this "unduly burdensome" standard should be applied
to the challenged regulations throughout the entire pregnancy without reference
to the particular "stage" of pregnancy involved. If the particular regulation
does not "unduly " the fundamental right, Maher, supra, at 473, then our
evaluation of that regulation is limited to our determination that the regulation
rationally relates to a legitimate state purpose. Irrespective of what we
may believe is wise or prudent policy in this difficult area, "the Constitution
does not constitute us as 'Platonic Guardians' nor does it vest in this
Court the authority to strike down laws because they do not meet our standards
of desirable social policy, 'wisdom,' or 'common sense.'" Plyler v. Doe,
457 U.S. 202, 242 (1982) (BURGER, C. J., Dissenting). |
| [98] | I |
| [99] | The trimester or "three-stage" approach adopted by the Court in Roe, *fn1
and, in a modified form, employed by the Court to analyze the regulations
in these cases, cannot be supported as a legitimate or useful framework
for accommodating the woman's right and the State's interests. The decision
of the Court today graphically illustrates why the trimester approach is
a completely unworkable method of accommodating the conflicting personal
rights and compelling state interests that are involved in the abortion
context. |
| [100] | As the Court indicates today, the State's compelling interest in maternal
health changes as medical technology changes, and any health regulation
must not "depart from accepted medical practice." Ante, at 431. *fn2
In applying this standard, the Court holds that "the safety of second-trimester
abortions has increased dramatically" since 1973, when Roe was decided.
Ante, at 435-436 (footnote omitted). Although a regulation such as one requiring
that all second-trimester abortions be performed in hospitals "had strong
support" in 1973 "as a reasonable health regulation," ante, at 435, this
regulation can no longer stand because, according to the Court's diligent
research into medical and scientific literature, the dilation and evacuation
(D&E) procedure used in 1973 only for first-trimester abortions, "is now
widely and successfully used for second-trimester abortions." Ante, at 436
(footnote omitted). Further, the medical literature relied on by the Court
indicates that the D&E procedure may be performed in an appropriate nonhospital
setting for "at least . . . the early weeks of the second trimester . .
. ." Ante, at 437. The Court then chooses the period of 16 weeks of gestation
as that point at which D&E procedures may be performed safely in a nonhospital
setting, and thereby invalidates the Akron hospitalization regulation. |
| [101] | It is not difficult to see that despite the Court's purported adherence
to the trimester approach adopted in Roe, the lines drawn in that decision
have now been "blurred" because of what the Court accepts as technological
advancement in the safety of abortion procedure. The State may no longer
rely on a "bright line" that separates permissible from impermissible regulation,
and it is no longer free to consider the second trimester as a unit and
weigh the risks posed by all abortion procedures throughout that trimester.
*fn3 Rather, the State must continuously
and conscientiously study contemporary medical and scientific literature
in order to determine whether the effect of a particular regulation is to
"depart from accepted medical practice" insofar as particular procedures
and particular periods within the trimester are concerned. Assuming that
legislative bodies are able to engage in this exacting task, *fn4
it is difficult to believe that our Constitution requires that they do it
as a prelude to protecting the health of their citizens. It is even more
difficult to believe that this Court, without the resources available to
those bodies entrusted with making legislative choices, believes itself
competent to make these inquiries and to revise these standards every time
the American College of Obstetricians and Gynecologists (ACOG) or similar
group revises its views about what is and what is not appropriate medical
procedure in this area. Indeed, the ACOG Standards on which the Court relies
were changed in 1982 after trial in the present cases. Before ACOG changed
its Standards in 1982, it recommended that all mid-trimester abortions be
performed in a hospital. See 651 F.2d 1198, 1209 (CA6 1981). As today's
decision indicates, medical technology is changing, and this change will
necessitate our continued functioning as the Nation's "ex officio medical
board with powers to approve or disapprove medical and operative practices
and standards throughout the United States." Planned Parenthood of Central
Missouri v. Danforth, 428 U.S. 52, 99 (1976) (WHITE, J., Concurring in part
and Dissenting in part). |
| [102] | Just as improvements in medical technology inevitably will move forward
the point at which the State may regulate for reasons of maternal health,
different technological improvements will move backward the point of viability
at which the State may proscribe abortions except when necessary to preserve
the life and health of the mother. |
| [103] | In 1973, viability before 28 weeks was considered unusual. The 14th edition
of L. Hellman & J. Pritchard, Williams Obstetrics (1971), on which the Court
relied in Roe for its understanding of viability, stated, at 493, that "
of a weight of 1,000 g [or a fetal age of approximately 28 weeks' gestation]
is . . . widely used as the criterion of viability." However, recent studies
have demonstrated increasingly earlier fetal viability. *fn5
It is certainly reasonable to believe that fetal viability in the first
trimester of pregnancy may be possible in the not too distant future. Indeed,
the Court has explicitly acknowledged that Roe left the point of viability
"flexible for anticipated advancements in medical skill." Colautti v. Franklin,
439 U.S. 379, 387 (1979). " recognized in Roe that viability was a matter
of medical judgment, skill, and technical ability, and we preserved the
flexibility of the term." Danforth, supra, at 64. |
| [104] | The Roe framework, then, is clearly on a collision course with itself.
As the medical risks of various abortion procedures decrease, the point
at which the State may regulate for reasons of maternal health is moved
further forward to actual childbirth. As medical science becomes better
able to provide for the separate existence of the fetus, the point of viability
is moved further back toward conception. Moreover, it is clear that the
trimester approach violates the fundamental aspiration of judicial decisionmaking
through the application of neutral principles "sufficiently absolute to
give them roots throughout the community and continuity over significant
periods of time . . . ." A. Cox, The Role of the Supreme Court in American
Government 114 (1976). The Roe framework is inherently tied to the state
of medical technology that exists whenever particular litigation ensues.
Although legislatures are better suited to make the necessary factual judgments
in this area, the Court's framework forces legislatures, as a matter of
constitutional law, to speculate about what constitutes "accepted medical
practice" at any given time. Without the necessary expertise or ability,
courts must then pretend to act as science review boards and examine those
legislative judgments. |
| [105] | The Court adheres to the Roe framework because the doctrine of stare decisis
"demands respect in a society governed by the rule of law." Ante, at 420.
Although respect for stare decisis cannot be challenged, "this Court's considered
practice not to apply stare decisis as rigidly in constitutional as in non-constitutional
cases." Glidden Co. v. Zdanok, 370 U.S. 530, 543 (1962). Although we must
be mindful of the "desirability of continuity of decision in constitutional
questions . . . when convinced of former error, this Court has never felt
constrained to follow precedent. In constitutional questions, where correction
depends upon amendment and not upon legislative action this Court throughout
its history has freely exercised its power to re-examine the basis of its
constitutional decisions." Smith v. Allwright, 321 U.S. 649, 665 (1944)
(footnote omitted). |
| [106] | Even assuming that there is a fundamental right to terminate pregnancy
in some situations, there is no justification in law or logic for the trimester
framework adopted in Roe and employed by the Court today on the basis of
stare decisis. For the reasons stated above, that framework is clearly an
unworkable means of balancing the fundamental right and the compelling state
interests that are indisputably implicated. |
| [107] | II |
| [108] | The Court in Roe correctly realized that the State has important interests
"in the areas of health and medical standards" and that " State has a legitimate
interest in seeing to it that abortion, like any other medical procedure,
is performed under circumstances that insure maximum safety for the patient."
410 U.S., at 149-150. The Court also recognized that the State has "another
important and legitimate interest in protecting the potentiality of human
life." Id., at 162 (emphasis in original). I agree completely that the State
has these interests, but in my view, the point at which these interests
become compelling does not depend on the trimester of pregnancy. Rather,
these interests are present throughout pregnancy. |
| [109] | This Court has never failed to recognize that "a State may properly assert
important interests in safeguarding health in maintaining medical standards."
Id., at 154. It cannot be doubted that as long as a state statute is within
"the bounds of reason and [does not] the character of a merely arbitrary
fiat . . . State . . . must decide upon measures that are needful for the
protection of its people . . . ." Purity Extract and Tonic Co. v. Lynch,
226 U.S. 192, 204-205 (1912). "There is nothing in the United States Constitution
which limits the State's power to require that medical procedures be done
safely . . . ." Sendak v. Arnold, 429 U.S. 968, 969 (1976) (WHITE, J., Dissenting).
"The mode and procedure of medical diagnostic procedures is not the business
of Judges." Parham v. J. R., 442 U.S. 584, 607-608 (1979). Under the Roe
framework, however, the state interest in maternal health cannot become
compelling until the onset of the second trimester of pregnancy because
"until the end of the first trimester mortality in abortion may be less
than mortality in normal childbirth." 410 U.S., at 163. Before the second
trimester, the decision to perform an abortion "must be left to the medical
judgment of the pregnant woman's attending physician." Id., at 164. *fn6 |
| [110] | The fallacy inherent in the Roe framework is apparent: just because the
State has a compelling interest in ensuring maternal safety once an abortion
may be more dangerous than childbirth, it simply does not follow that the
State has no interest before that point that justifies state regulation
to ensure that first-trimester abortions are performed as safely as possible.
*fn7 |
| [111] | The state interest in potential human life is likewise extant throughout
pregnancy. In Roe, the Court held that although the State had an important
and legitimate interest in protecting potential life, that interest could
not become compelling until the point at which the fetus was viable. The
difficulty with this analysis is clear: potential life is no less potential
in the first weeks of pregnancy than it is at viability or afterward. At
any stage in pregnancy, there is the potential for human life. Although
the Court refused to "resolve the difficult question of when life begins,"
id., at 159, the Court chose the point of viability -- when the fetus is
capable of life independent of its mother -- to permit the complete proscription
of abortion. The choice of viability as the point at which the state interest
in potential life becomes compelling is no less arbitrary than choosing
any point before viability or any point afterward. Accordingly, I believe
that the State's interest in protecting potential human life exists throughout
the pregnancy. |
| [112] | III |
| [113] | Although the State possesses compelling interests in the protection of
potential human life and in maternal health throughout pregnancy, not every
regulation that the State imposes must be measured against the State's compelling
interests and examined with strict scrutiny. This Court has acknowledged
that "the right in Roe v. Wade
can be understood only by considering both the woman's interest and the
nature of the State's interference with it. Roe did not declare an unqualified
'constitutional right to an abortion' . . . . Rather, the right protects
the woman from unduly burdensome interference with her freedom to decide
whether to terminate her pregnancy." Maher, 432 U.S., at 473-474. The Court
and its individual Justices have repeatedly utilized the "unduly burdensome"
standard in abortion cases. *fn8 |
| [114] | The requirement that state interference "infringe substantially" or "heavily
burden" a right before heightened scrutiny is applied is not novel in our
fundamental-rights jurisprudence, or restricted to the abortion context.
In San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 37-38
(1973), we observed that we apply "strict judicial scrutiny" only when legislation
may be said to have "'deprived,' 'infringed,' or 'interfered' with the free
exercise of some such fundamental personal right or liberty." If the impact
of the regulation does not rise to the level appropriate for our strict
scrutiny, then our inquiry is limited to whether the state law bears "some
rational relationship to legitimate state purposes." Id., at 40. Even in
the First Amendment context, we have required in some circumstances that
state laws "infringe substantially" on protected conduct, Gibson v. Florida
Legislative Investigation Committee, 372 U.S. 539, 545 (1963), or that there
be "a significant encroachment upon personal liberty," Bates v. City of
Little Rock, 361 U.S. 516, 524 (1960). |
| [115] | In Carey v. Population Services International, 431 U.S. 678 (1977), we
eschewed the notion that state law had to meet the exacting "compelling
state interest" test "'whenever it implicates sexual freedom.'" Id., at
688, n. 5. Rather, we required that before the "strict scrutiny" standard
was employed, it was necessary that the state law " a significant burden"
on a protected right, id., at 689, or that it "burden an individual's right
to decide to prevent conception or terminate pregnancy by substantially
limiting access to the means of effectuating that decision . . . ." Id.,
at 688 (emphasis added). The Court stressed that "even a burdensome regulation
may be validated by a sufficiently compelling state interest." Id., at 686.
Finally, Griswold v. Connecticut, 381 U.S. 479, 485 (1965), recognized that
a law banning the use of contraceptives by married persons had "a maximum
destructive impact" on the marital relationship. |
| [116] | Indeed, the Court today follows this approach. Although the Court does
not use the expression "undue burden," the Court recognizes that even a
"significant obstacle" can be justified by a "reasonable" regulation. See
ante, at 434, 435, 438. |
| [117] | The "undue burden" required in the abortion cases 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. " test so severe that legislation rarely can meet
it should be imposed by courts with deliberate restraint in view of the
respect that properly should be accorded legislative judgments." Carey,
supra, at 705 (POWELL, J., Concurring in part and Concurring in judgment). |
| [118] | The "unduly burdensome" standard is particularly appropriate in the abortion
context because of the nature and scope of the right that is involved. The
privacy right involved in the abortion context "cannot be said to be absolute."
Roe, 410 U.S., at 154. "Roe did not declare an unqualified 'constitutional
right to an abortion.'" Maher, 432 U.S., at 473. Rather, the Roe right is
intended to protect against state action "drastically limiting the availability
and safety of the desired service," id., at 472, against the imposition
of an "absolute obstacle" on the abortion decision, Danforth, 428 U.S.,
at 70-71, n. 11, or against "official interference" and "coercive restraint"
imposed on the abortion decision, Harris, 448 U.S., at 328 (WHITE, J., Concurring).
That a state regulation may "inhibit" abortions to some degree does not
require that we find that the regulation is invalid. See H. L. v. Matheson,
450 U.S. 398, 413 (1981). |
| [119] | The abortion cases demonstrate that an "undue burden" has been found for
the most part in situations involving absolute obstacles or severe limitations
on the abortion decision. In Roe, the Court invalidated a Texas statute
that criminalized all abortions except those necessary to save the life
of the mother. In Danforth, the Court invalidated a state prohibition of
abortion by saline amniocentesis because the ban had "the effect of inhibiting
. . . the vast majority of abortions after the first 12 weeks." 428 U.S.,
at 79. The Court today acknowledges that the regulation in Danforth effectively
represented " a complete prohibition on abortions in certain circumstances."
Ante, at 429, n. 11 (emphasis added). In Danforth, the Court also invalidated
state regulations requiring parental or spousal consent as a prerequisite
to a first-trimester abortion because the consent requirements effectively
and impermissibly delegated a "veto power" to parents and spouses during
the first trimester of pregnancy. In both Bellotti I, 428 U.S. 132 (1977),
and Bellotti v. Baird, 443 U.S. 622 (1979) (Bellotti II), the Court was
concerned with effective parental veto over the abortion decision. *fn9 |
| [120] | In determining whether the State imposes an "undue burden," we must keep
in mind that when we are concerned with extremely sensitive issues, such
as the one involved here, "the appropriate forum for their resolution in
a democracy is the legislature. We should not forget that 'legislatures
are ultimate guardians of the liberties and welfare of the people in quite
as great a degree as the courts.' Missouri, K.&T.R. Co. v. May, 194 U.S.
267, 270 (1904) (Holmes, J.)." Maher, 432 U.S., at 479-480 (footnote omitted).
This does not mean that in determining whether a regulation imposes an "undue
burden" on the Roe right we defer to the judgments made by state legislatures.
"The point is, rather, that when we face a complex problem with many hard
questions and few easy answers we do well to pay careful attention to how
the other branches of Government have addressed the same problem." Columbia
Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94,
103 (1973). *fn10 |
| [121] | We must always be mindful that " Constitution does not compel a state
to fine-tune its statutes so as to encourage or facilitate abortions. To
the contrary, state action 'encouraging childbirth except in the most urgent
circumstances' is 'rationally related to the legitimate governmental objective
of protecting potential life.' Harris v. McRae, 448 U.S., at 325. Accord,
Maher v. Roe, supra, at 473-474." H. L. v. Matheson, supra, at 413 (footnote
omitted). |
| [122] | IV |
| [123] | A |
| [124] | Section 1870.03 of the Akron ordinance requires that second-trimester
abortions be performed in hospitals. The Court holds that this requirement
imposes a "significant obstacle" in the form of increased costs and decreased
availability of abortions, ante, at 434-435, 435, and the Court rejects
the argument offered by the State that the requirement is a reasonable health
regulation under Roe, 410 U.S., at 163. See ante, at 435-436. |
| [125] | For the reasons stated above, I find no justification for the trimester
approach used by the Court to analyze this restriction. I would apply the
"unduly burdensome" test and find that the hospitalization requirement does
not impose an undue burden on that decision. |
| [126] | The Court's reliance on increased abortion costs and decreased availability
is misplaced. As the city of Akron points out, there is no evidence in this
case to show that the two Akron hospitals that performed second-trimester
abortions denied an abortion to any woman, or that they would not permit
abortion by the D&E procedure. See Reply Brief for Petitioner in No. 81-746,
p. 3. In addition, there was no evidence presented that other hospitals
in nearby areas did not provide second-trimester abortions. Further, almost
any state regulation, including the licensing requirements that the Court
would allow, see ante, at 437-438, n. 26, inevitably and necessarily entails
increased costs for any abortion. In Simopoulos v. Virginia, post, p. 506,
the Court upholds the State's stringent licensing requirements that will
clearly involve greater cost because the State's licensing scheme "is not
an unreasonable means of furthering the State's compelling interest in"
preserving maternal health. Post, at 519. Although the Court acknowledges
this indisputably correct notion in Simopoulos, it inexplicably refuses
to apply it in this case. A health regulation, such as the hospitalization
requirement, simply does not rise to the level of "official interference"
with the abortion decision. See Harris, supra, at 328 (WHITE, J., Concurring). |
| [127] | Health-related factors that may legitimately be considered by the State
go well beyond what various medical organizations have to say about the
physical safety of a particular procedure. Indeed, "all factors -- physical,
emotional, psychological, familial, and the woman's age -- relevant to the
well-being of the patient." Doe v. Bolton, 410 U.S. 179, 192 (1973). The
ACOG Standards, upon which the Court relies, state that " of advances in
abortion technology, midtrimester terminations will likely remain more hazardous,
expensive, and emotionally disturbing for a woman than early abortions."
American College of Obstetricians and Gynecologists, Technical Bulletin
No. 56: Methods of Midtrimester Abortion 4 (Dec. 1979). |
| [128] | The hospitalization requirement does not impose an undue burden, and it
is not necessary to apply an exacting standard of review. Further, the regulation
has a "rational relation" to a valid state objective of ensuring the health
and welfare of its citizens. See Williamson v. Lee Optical Co., 348 U.S.
483, 491 (1955). *fn11 |
| [129] | B |
| [130] | Section 1870.05(B)(2) of the Akron ordinance provides that no physician
shall perform an abortion on a minor under 15 years of age unless the minor
gives written consent, and the physician first obtains the informed written
consent of a parent or guardian, or unless the minor first obtains "an order
from a court having jurisdiction over her that the abortion be performed
or induced." Despite the fact that this regulation has yet to be construed
in the state courts, the Court holds that the regulation is unconstitutional
because it is not "reasonably susceptible of being construed to create an
'opportunity for case-by-case evaluations of the maturity of pregnant minors.'"
Ante, at 441 (quoting Bellotti II, 443 U.S., at 643-644, n. 23 (plurality
opinion)). I believe that the Court should have abstained from declaring
the ordinance unconstitutional. |
| [131] | In Bellotti I, the Court abstained from deciding whether a state parental
consent provision was unconstitutional as applied to mature minors. The
Court recognized and respected the well-settled rule that abstention is
proper "where an unconstrued state statute is susceptible of a construction
by the state judiciary 'which might avoid in whole or in part the necessity
for federal constitutional adjudication, or at least materially change the
nature of the problem.'" 428 U.S., at 147 (quoting Harrison v. NAACP, 360
U.S. 167, 177 (1959)). While acknowledging the force of the abstention doctrine,
see ante, at 440-441, the Court nevertheless declines to apply it. Instead,
it speculates that a state juvenile court might inquire into a minor's maturity
and ability to decide to have an abortion in deciding whether the minor
is being provided "'surgical care . . . necessary for his health, morals,
or well being,'" ante at 441, n. 31 (quoting Ohio Rev. Code Ann. §
2151.03 (1976)). The Court ultimately rejects this possible interpretation
of state law, however, because filing a petition in juvenile court requires
parental notification, an unconstitutional condition insofar as mature minors
are concerned. |
| [132] | Assuming, arguendo, that the Court is correct in holding that a parental
notification requirement would be unconstitutional as applied to mature
minors, *fn12 I see no reason
to assume that the Akron ordinance and the State Juvenile Court statute
compel state Judges to notify the parents of a mature minor if such notification
was contrary to the minor's best interests. Further, there is no reason
to believe that the state courts would construe the consent requirement
to impose any type of parental or judicial veto on the abortion decisions
of mature minors. In light of the Court's complete lack of knowledge about
how the Akron ordinance will operate, and how the Akron ordinance and the
State Juvenile Court statute interact, our "'scrupulous regard for the rightful
independence of state governments'" counsels against "unnecessary interference
by the federal courts with proper and validly administered state concerns,
a course so essential to the balanced working of our federal system." Harrison
v. NAACP, supra, at 176 (quoting Matthews v. Rodgers, 284 U.S. 521, 525
(1932)). |
| [133] | C |
| [134] | The Court invalidates the informed-consent provisions of § 1870.06(B)
and § 1870.06(C) of the Akron ordinance. *fn13
Although it finds that subsections (1), (2), (6), and (7) of § 1870.06(B)
are "certainly . . . not objectionable," ante, at 445-446, n. 37, it refuses
to sever those provisions from subsections (3), (4), and (5) because the
city requires that the "acceptable" information be provided by the attending
physician when "much, if not all of it, could be given by a qualified person
assisting the physician," ibid. Despite the fact that the Court finds that
§ 1870.06(C) "properly leaves the precise nature and amount of . .
. disclosure to the physician's discretion and 'medical judgment,'" ante,
at 447, the Court also finds § 1870.06(C) unconstitutional because
it requires that the disclosure be made by the attending physician, rather
than by other "qualified persons" who work at abortion clinics. |
| [135] | We have approved informed-consent provisions in the past even though the
physician was required to deliver certain information to the patient. In
Danforth, the Court upheld a state informed-consent requirement because
" decision to abort, indeed, is an important, and often a stressful one,
and it is desirable and imperative that it be made with full knowledge of
its nature and consequences." 428 U.S., at 67. *fn14
In H. L. v. Matheson, the Court noted that the state statute in the case
required that the patient "be advised at a minimum about available adoption
services, about fetal development, and about foreseeable complications and
risks of an abortion. See Utah Code Ann. § 76-7-305 (1978). In Planned
Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 65-67 (1976), we rejected
a constitutional attack on written consent provisions." 450 U.S., at 400-401,
n. 1. Indeed, we have held that an informed-consent provision does not "unduly
the right to seek an abortion." Bellotti I, 428 U.S., at 147. *fn15 |
| [136] | The validity of subsections (3), (4), and (5) is not before the Court
because it appears that the city of Akron conceded their unconstitutionality
before the court below. See Brief for City of Akron in No. 79-3757 (CA6),
p. 35; Reply Brief for City of Akron in No. 79-3757 (CA6), pp. 5-9. In my
view, the remaining subsections of § 1870.06(B) are separable from
the subsections conceded to be unconstitutional. Section 1870.19 contains
a separability clause which creates a "'presumption of divisibility'" and
places "the burden . . . on the litigant who would escape its operation."
Carter v. Carter Coal Co., 298 U.S. 238, 335 (1936) (opinion of Cardozo,
J.). Akron Center has failed to show that severance of subsections (3),
(4), and (5) would "create a program quite different from the one the legislature
actually adopted." Sloan v. Lemon, 413 U.S. 825, 834 (1973). |
| [137] | The remainder of § 1870.06(B), and § 1870.06(C), impose no undue
burden or drastic limitation on the abortion decision. The city of Akron
is merely attempting to ensure that the decision to abort is made in light
of that knowledge that the city deems relevant to informed choice. As such,
these regulations do not impermissibly affect any privacy right under the
Fourteenth Amendment. *fn16 |
| [138] | D |
| [139] | Section 1870.07 of the Akron ordinance requires a 24-hour waiting period
between the signing of a consent form and the actual performance of the
abortion, except in cases of emergency. See § 1870.12. The court below
invalidated this requirement because it affected abortion decisions during
the first trimester of pregnancy. The Court affirms the decision below,
not on the ground that it affects early abortions, but because "Akron has
failed to demonstrate that any legitimate state interest is furthered by
an arbitrary and inflexible waiting period." Ante, at 450. The Court accepts
the arguments made by Akron Center that the waiting period increases the
costs of obtaining an abortion by requiring the pregnant woman to make two
trips to the clinic, and increases the risks of abortion through delay and
scheduling difficulties. The decision whether to proceed should be left
to the physician's "'discretion in the exercise of his medical judgment.'"
Ibid. (quoting Colautti, 439 U.S., at 387). |
| [140] | It is certainly difficult to understand how the Court believes that the
physician-patient relationship is able to accommodate any interest that
the State has in maternal physical and mental well-being in light of the
fact that the record in this case shows that the relationship is nonexistent.
See 651 F.2d, at 1217 (Kennedy, J., Concurring in part and Dissenting in
part). It is also interesting to note that the American College of Obstetricians
and Gynecologists recommends that " to abortion, the woman should have access
to special counseling that explores options for the management of an unwanted
pregnancy, examines the risks, and allows sufficient time for reflection
prior to making an informed decision." 1982 ACOG Standards for Obstetric-Gynecologic
Services, at 54. |
| [141] | The waiting period does not apply in cases of medical emergency. Therefore,
should the physician determine that the waiting period would increase risks
significantly, he or she need not require the woman to wait. The Court's
concern in this respect is simply misplaced. Although the waiting period
may impose an additional cost on the abortion decision, this increased cost
does not unduly burden the availability of abortions or impose an absolute
obstacle to access to abortions. Further, the State is not required to "fine-tune"
its abortion statutes so as to minimize the costs of abortions. H. L. v.
Matheson, 450 U.S., at 413. |
| [142] | Assuming, arguendo, that any additional costs are such as to impose an
undue burden on the abortion decision, the State's compelling interests
in maternal physical and mental health and protection of fetal life clearly
justify the waiting period. As we acknowledged in Danforth, 428 U.S., at
67, the decision to abort is "a stressful one," and the waiting period reasonably
relates to the State's interest in ensuring that a woman does not make this
serious decision in undue haste. The decision also has grave consequences
for the fetus, whose life the State has a compelling interest to protect
and preserve. " other procedure involves the purposeful termination of a
potential life." Harris, 448 U.S., at 325. The waiting period is surely
a small cost to impose to ensure that the woman's decision is well considered
in light of its certain and irreparable consequences on fetal life, and
the possible effects on her own. *fn17 |
| [143] | E |
| [144] | Finally, § 1870.16 of the Akron ordinance requires that " physician
who shall perform or induce an abortion upon a pregnant woman shall insure
that the remains of the unborn child are disposed of in a humane and sanitary
manner." The Court finds this provision void for vagueness. I disagree. |
| [145] | In Planned Parenthood Assn. v. Fitzpatrick, 401 F.Supp. 554 (ED Pa. 1975)
(three-Judge court), summarily aff'd sub nom. Franklin v. Fitzpatrick, 428
U.S. 901 (1976), the District Court upheld a "humane disposal" provision
against a vagueness attack in light of the State's representation that the
intent of the Act "'is to preclude the mindless dumping of aborted fetuses
onto garbage piles.'" 401 F.Supp., at 573. The District Court held that
different concerns would be implicated if the statute were, at some point,
determined to require "expensive burial." Ibid. In the present cases, the
city of Akron has informed this Court that the intent of the "humane" portion
of its statute, as distinguished from the "sanitary" portion, is merely
to ensure that fetuses will not be "' . . . on garbage piles.'" Brief for
Petitioner in No. 81-746, p. 48. In light of the fact that the city of Akron
indicates no intent to require that physicians provide "decent burials"
for fetuses, and that "humane" is no more vague than the term "sanitary,"
the vagueness of which Akron Center does not question, I cannot conclude
that the statute is void for vagueness. |
| [146] | V |
| [147] | For the reasons set forth above, I Dissent from the judgment of the Court
in these cases. |
|
|
|
| Opinion Footnotes | |
|
|
|
| [148] | * Together with No. 81-1172, Akron Center for Reproductive Health, Inc.,
et al. v. City of Akron et al., also on certiorari to the same court. |
| [149] | COUNSEL FOOTNOTES |
| [150] | + Briefs of amici curiae urging reversal were filed by Delores V. Horan
for Feminists for Life; and by Lynn D. Wardle for the United Families Foundation
et al. |
| [151] | Briefs of amici curiae urging affirmance were filed by Bruce J. Ennis,
Jr., and Donald N. Bersoff for the American Psychological Association; and
by Sylvia A. Law, Nadine Taub, and Ellen J. Winner for the Committee for
Abortion Rights and Against Sterilization Abuse et al. |
| [152] | Briefs of amici curiae were filed by M. Carolyn Cox and Lynn Bregman for
the American College of Obstetricians and Gynecologists et al.; by David
B. Hopkins for the American Public Health Association; by Dennis J. Horan,
Victor G. Rosenblum, Patrick A. Trueman, and Thomas J. Marzen for Americans
United for Life; for California Women Lawyers et al.; by Charles E. Rice
for the Catholic League for Religious and Civil Rights; by Rhonda Copelon
for Certain Religious Organizations; by Jack R. Bierig for the College of
American Pathologists; by Ronald J. Suster for Lawyers for Life; by Alan
Ernest for the Legal Defense Fund for Unborn Children; by Judith Levin for
the National Abortion Federation; by Jack Greenberg, James M. Nabrit III,
and Judith Reed for the NAACP Legal Defense and Educational Fund, Inc.;
by Phyllis N. Segal, Judith I. Avner, and Jemera Rone for the National Organization
for Women et al.; by Eve W. Paul and Dara Klassel for the Planned Parenthood
Federation of America, Inc., et al.; by James Arthur Gleason for Womankind,
Inc.; by Nancy Reardan for Women Lawyers of Sacramento et al; and by Susan
Frelich Appleton and Paul Brest for Certain Law Professors. |
| [153] | *fn1 There are especially compelling
reasons for adhering to stare decisis in applying the principles of Roe
v. Wade. That case was considered with special
care. It was first argued during the 1971 Term, and reargued -- with extensive
briefing -- the following Term. The decision was joined by THE CHIEF JUSTICE
and six other Justices. Since Roe was decided in January 1973, the Court
repeatedly and consistently has accepted and applied the basic principle
that a woman has a fundamental right to make the highly personal choice
whether or not to terminate her pregnancy. See Connecticut v. Menillo, 423
U.S. 9 (1975); Planned Parenthood of Central Missouri v. Danforth, 428 U.S.
52 (1976); Bellotti v. Baird, 428 U.S. 132 (1976); Beal v. Doe, 432 U.S.
438 (1977); Maher v. Roe, 432 U.S. 464 (1977); Colautti v. Franklin, 439
U.S. 379 (1979); Bellotti v. Baird, 443 U.S. 622 (1979); Harris v. McRae,
448 U.S. 297 (1980); H. L. v. Matheson, 450 U.S. 398 (1981). |
| [154] | Today, however, the Dissenting opinion rejects the basic premise of Roe
and its progeny. The Dissent stops short of arguing flatly that Roe should
be overruled. Rather, it adopts reasoning that, for all practical purposes,
would accomplish precisely that result. The Dissent states that " assuming
that there is a fundamental right to terminate pregnancy in some situations,"
the State's compelling interests in maternal health and potential human
life "are present throughout pregnancy." Post, at 459 (emphasis in original).
The existence of these compelling interests turns out to be largely unnecessary,
however, for the Dissent does not think that even one of the numerous abortion
regulations at issue imposes a sufficient burden on the "limited" fundamental
right, post, at 465, n. 10, to require heightened scrutiny. Indeed, the
Dissent asserts that, regardless of cost, " health regulation, such as the
hospitalization requirement, simply does not rise to the level of 'official
interference' with the abortion decision." Post, at 467 (quoting Harris
v. McRae, supra, at 328 (WHITE, J., Concurring)). The Dissent therefore
would hold that a requirement that all abortions be performed in an acute-care,
general hospital does not impose an unacceptable burden on the abortion
decision. It requires no great familiarity with the cost and limited availability
of such hospitals to appreciate that the effect of the Dissent's views would
be to drive the performance of many abortions back underground free of effective
regulation and often without the attendance of a physician. |
| [155] | In sum, it appears that the Dissent would uphold virtually any abortion
regulation under a rational-basis test. It also appears that even where
heightened scrutiny is deemed appropriate, the Dissent would uphold virtually
any abortion-inhibiting regulation because of the State's interest in preserving
potential human life. See post, at 474 (arguing that a 24-hour waiting period
is justified in part because the abortion decision "has grave consequences
for the fetus"). This analysis is wholly incompatible with the existence
of the fundamental right recognized in Roe v.
Wade. |
| [156] | *fn2 The ordinance was prefaced
by several findings: |
| [157] | "WHEREAS, the citizens of Akron are entitled to the highest standard of
health care; and |
| [158] | "WHEREAS, abortion is a major surgical procedure which can result in complications,
and adequate equipment and personnel should be required for its safe performance
in order to insure the highest standards of care for the protection of the
life and health of the pregnant woman; and |
| [159] | "WHEREAS, abortion should be performed only in a hospital or in such other
special outpatient facility offering the maximum safeguards to the life
and health of the pregnant woman; and |
| [160] | "WHEREAS, it is the finding of Council that there is no point in time
between the union of sperm and egg, or at least the blastocyst stage and
the birth of the infant at which point we can say the unborn child is not
a human life, and that the changes occuring between implantation, a six-weeks
embryo, a six-month fetus, and a one-week-old child, or a mature adult are
merely stages of development and maturation; and |
| [161] | "WHEREAS, traditionally the physician has been responsible for the welfare
of both the pregnant woman and her unborn child, and that while situations
of conflict may arise between a pregnant woman's health interests and the
welfare of her unborn child, the resolution of such conflicts by inducing
abortion in no way implies that the physician has an adversary relationship
towards the unborn child; and |
| [162] | "WHEREAS, Council therefore wishes to affirm that the destruction of the
unborn child is not the primary purpose of abortion and that consequently
Council recognizes a continuing obligation on the part of the physician
towards the survival of a viable unborn child where this obligation can
be discharged without additional hazard to the health of the pregnant woman;
and |
| [163] | "WHEREAS, Council, after eztensive public hearings and investigations
concludes that enactment of this ordinance is a reasonable and prudent action
which will significantly contribute to the preservation of the public life,
health, safety, morals, and welfare." Akron Ordinance No. 160-1978. |
| [164] | *fn3 "1870.03 ABORTION IN HOSPITAL |
| [165] | "No person shall perform or induce an abortion upon a pregnant woman subsequent
to the end of the first trimester of her pregnancy, unless such abortion
is performed in a hospital." |
| [166] | Section 1870.01(B) defines "hospital" as "a general hospital or special
hospital devoted to gynecology or obstetrics which is accredited by the
Joint Commission on Accreditation of Hospitals or by the American Osteopathic
Association." |
| [167] | *fn4 "1870.05 NOTICE AND CONSENT |
| [168] | "(A) No physician shall perform or indice an abortion upon an unmarried
pregnant woman under the age of 18 years without first having given at lest
twenty-four (24) hours actual notice to one of the parents or the legal
guardian of the minor pregnant woman as to the intention to perform such
abortion, or if such parent or guardian cannot be reached after a reasonable
effort to find him or her, without first having given at least seventy-two
(72) hours constructive notice to one of the parents or the legal guardian
of the minor pregnant woman by certified mail to the last known address
of one of the parents or guardian, computed from the time of mailing, unless
the abortion is ordered by a court having jurisdiction over such minor pregnant
woman. |
| [169] | "(B) No physician shall perform or induce an abortion upon a minor pregnant
woman under the age of fifteen (15) years without first having obtained
the informed written consent of the minor pregnant woman in accordance with
Section 1870.06 of this Chapter, and |
| [170] | "(1) First having obtained the informed written consent of one of her
parents or her legal guardian in accordance with Section 1870.06 of this
Chapter, or |
| [171] | "(2) The minor pregnant woman first having obtained an order from a court
having jurisdiction over her that the abortion be performed or induced." |
| [172] | *fn5 "1870.06 INFORMED CONSENT |
| [173] | "(A) An abortion otherwise permitted by law shall be performed or induced
only with the informed written consent of the pregnant woman, and one of
her parents or her legal guardian whose consent is required in accordance
with Section 1870.05(B) of this Chapter, given freely and without coercion. |
| [174] | "(B) In order to insure that the consent for an abortion is truly informed
consent, an abortion shall be performed or induced upon a pregnant woman
only after she, and one of her parents or her legal guardian whose consent
is required in accordance with Section 1870.05(B) of this Chapter, have
been orally informed by her attending physician of the following facts,
and have signed a consent form acknowledging that she, and the parent or
legal guardian where applicable, have been informed as follows: |
| [175] | "(1) That according to the best judgment of her attending physician she
is pregnant. |
| [176] | "(2) The number of weeks elapsed from the probable time of the conception
of her unborn child, based upon the information provided by her as to the
time of her last menstrual period or after a history and physical exmaination
and appropriate laboratory tests. |
| [177] | "(3) That the unborn child is a human life from the moment of conception
and that there has been described in detail the anatomical and physiological
characteristics of the particular unborn child at the gestational point
of development at which time the abortion is to be performed, including,
but not limited to, appearance, mobility, tactile sensitivity, including
pain, perception or response, brain and heart function, the presence of
internal organs and the presence of external members. |
| [178] | "(4) That her unborn child may be viable, and thus capable of surviving
outside of her womb, if more than twenty-two (22) weeks have elapsed from
the time of conception, and that her attending physician has a legal obligation
to take all reasonable steps to preserve the life and health of her viable
unborn child during the abortion. |
| [179] | "(5) That abortion is a major surgical procedure which can result in serious
complications, including hemorrhage, perforated uterus, infection, menstrual
disturbances, sterility and miscarriage and prematurity in subsequent pregnancies;
and that abortion may leave essentially unaffected or may worsen any existing
psychological problems she may have, and can result in severe emotional
disturbances. |
| [180] | "(6) That numerous public and private agencies and services are available
to provide her with birth control information, and that her physician will
provide her with a list of such agencies and the services available if she
so requests. |
| [181] | "(7) That numerous public and private agencies and services are available
to assist her during pregnancy and after the birth of her child, if she
chooses not to have the abortion, whether she wishes to keep her child or
place him or her for adoption, and that her physician will provide her with
a list of such agencies and the services available if she so requests. |
| [182] | "(C) At the same time the attending physician provides the information
required by paragraph (B) of this Section, he shall, at least orally, inform
the pregnant woman, and one of her parents or her legal guardian whose consent
is required in accordance with Section 1870.05(B) of this Chapter, of the
particular risks associated with her own pregnancy and the abortion technique
to be employed including providing her with at least a general description
of the medical instructions to be followed subsequent to the abortion in
order to insure her safe recovery, and shall in addition provide her with
such other information which in his own medical judgment is relevant to
her decision as to whether to have an abortion or carry her pregnancy to
term. |
| [183] | "(D) The attending physician performing or inducing the abortion shall
provide the pregnant woman, or one of her parents or legal guardian signing
the consent form where applicable, with a duplicate copy of the consent
form signed by her, and one of her parents or her legal guardian where applicable,
in accordance with paragraph (B) of this Section." |
| [184] | *fn6 "1870.07 WAITING PERIOD |
| [185] | "No physician shall perform or induce an abortion upon a pregnant woman
until twenty-four (24) hours have elapsed from the time the pregnant woman,
and one of her parents or her legal guardian whose consent is required in
accordance with Section 1870.05(B) of this Chapter, have signed the consent
form required by Section 1870.06 of this Chapter, and the physician so certifies
in writing that such time has elapsed." |
| [186] | *fn7 "1870.16 DISPOSAL OF REMAINS |
| [187] | "Any physician who shall perform or induce an abortion upon a pregnant
woman shall insure that the remains of the unborn child are disposed of
in a humane and sanitary manner." |
| [188] | *fn8 "1870.19 SEVERABILITY |
| [189] | "Should any provision of this Chapter be construed by any court of law
to be invalid, illegal, unconstitutional, or otherwise unenforcible, such
invalidity, illegality, unconstitutionality, or unenforcibility shall not
extend to any other provision or provisions of this Chapter." |
| [190] | *fn9 Compare Planned Parenthood
Assn. of Kansas City, Mo., Inc. v. Ashcroft, 655 F.2d 848 (CA8), supplemented,
664 F.2d 687 (CA8 1981) (invalidating hospital requirement), with Simopoulos
v. Commonwealth, 221 Va. 1059, 277 S. E. 2d 194 (1981) (upholding hospital
requirement). Numerous States require that second-trimester abortions be
performed in hospitals. See Brief for Americans United for Life as Amicus
Curiae in Simopoulos v. Virginia, O. T. 1982, No. 81-185, p. 4, n. 1 (listing
23 States). |
| [191] | *fn10 In addition, the Court
repeatedly has recognized that, in view of the unique status of children
under the law, the States have a "significant" interest in certain abortion
regulations aimed at protecting children "that is not present in the case
of an adult." Planned Parenthood of Central Missouri v. Danforth, 428 U.S.,
at 75. See Carey v. Population Services International, 431 U.S. 678, 693,
n. 15 (1977) (plurality opinion). The right of privacy includes "independence
in making certain kinds of important decisions," Whalen v. Roe, 429 U.S.
589, 599-600 (1977), but this Court has recognized that many minors are
less capable than adults of making such important decisions. See Bellotti
v. Baird, 443 U.S., at 633-635 (Bellotti II) (plurality opinion); Danforth,
supra, at 102 (STEVENS, J., Concurring in part and Dissenting in part).
Accordingly, we have held that the States have a legitimate interest in
encouraging parental involvement in their minor children's decision to have
an abortion. See H. L. v. Matheson, 450 U.S. 398 (1981) (parental notice);
Bellotti II, supra, at 639, 648 (plurality opinion) (parental consent).
A majority of the Court, however, has indicated that these state and parental
interests must give way to the constitutional right of a mature minor or
of an immature minor whose best interests are contrary to parental involvement.
See, e. g., Matheson, 450 U.S., at 420 (POWELL, J., Concurring); id., at
450-451 (MARSHALL, J., Dissenting). The plurality in Bellotti II concluded
that a State choosing to encourage parental involvement must provide an
alternative procedure through which a minor may demonstrate that she is
mature enough to make her own decision or that the abortion is in her best
interest. See Bellotti II, supra, at 643-644. |
| [192] | *fn11 Roe identified the end
of the first trimester as the compelling point because until that time --
according to the medical literature available in 1973 -- "mortality in abortion
may be less than mortality in normal childbirth." 410 U.S., at 163. There
is substantial evidence that developments in the past decade, particularly
the development of a much safer method for performing second-trimester abortions,
see (infra), at 435-437, have extended the period in which abortions are
safer than childbirth. See, e. g., LeBolt, Grimes, & Cates, Mortality From
Abortion and Childbirth: Are the Populations Comparable?, 248 J. A. M. A.
188, 191 (1982) (abortion may be safer than childbirth up to gestational
ages of 16 weeks). |
| [193] | We think it prudent, however, to retain Roe 's identification of the beginning
of the second trimester as the approximate time at which the State's interest
in maternal health becomes sufficiently compelling to justify significant
regulation of abortion. We note that the medical evidence suggests that
until approximately the end of the first trimester, the State's interest
in maternal health would not be served by regulations that restrict the
manner in which abortions are performed by a licensed physician. See, e.
g., American College of Obstetricians and Gynecologists (ACOG), Standards
for Obstetric-Gynecologic Services 54 (5th ed. 1982) (hereinafter ACOG Standards)
(uncomplicated abortions generally may be performed in a physician's office
or an outpatient clinic up to 14 weeks from the first day of the last menstrual
period); ACOG Technical Bulletin No. 56, Methods of Mid-Trimester Abortion
4 (Dec. 1979) ("Regardless of advances in abortion technology, midtrimester
terminations will likely remain more hazardous, expensive, and emotionally
disturbing for women than earlier abortions"). |
| [194] | The Roe trimester standard thus continues to provide a reasonable legal
framework for limiting a State's authority to regulate abortions. Where
the State adopts a health regulation governing the performance of abortions
during the second trimester, the determinative question should be whether
there is a reasonable medical basis for the regulation. See Roe, 410 U.S.,
at 163. The comparison between abortion and childbirth mortality rates may
be relevant only where the State employs a health rationale as a justification
for a complete prohibition on abortions in certain circumstances. See Danforth,
supra, at 78-79 (invalidating state ban on saline abortions, a method that
was "safer, with respect to maternal mortality, than even continuation of
the pregnancy until normal childbirth"). |
| [195] | *fn12 Of course, the State
retains an interest in ensuring the validity of Roe 's factual assumption
that "the first trimester abortion as safe for the woman as normal childbirth
at term," an assumption that "holds true only if the abortion is performed
by medically competent personnel under conditions insuring maximum safety
for the woman." Connecticut v. Menillo, 423 U.S. 9, 11 (1975) (per curiam).
On this basis, for example, it is permissible for the States to impose criminal
sanctions on the performance of an abortion by a nonphysician. Ibid. |
| [196] | *fn13 For example, we concluded
that recordkeeping, "if not abused or overdone, can be useful to the State's
interest in protecting the health of its female citizens, and may be a resource
that is relevant to decisions involving medical experience and judgment."
428 U.S., at 81. See (infra), at 443-445 (discussing the State's interest
in requiring informed consent). |
| [197] | *fn14 "Examples of permissible
state regulation in this area are requirements as to the qualifications
of the person who is to perform the abortion; as to the licensure of that
person; as to the facility in which the procedure is to be performed, that
is, whether it must be a hospital or may be a clinic or some other place
of less-than-hospital status; as to the licensing of the facility; and the
like." Roe, supra, at 163-164. |
| [198] | *fn15 The Akron ordinance does
not define "first trimester," but elsewhere suggests that the age of the
fetus should be measured from the date of conception. See § 1870.06(B)(2)
(physician must inform woman of the number of weeks elapsed since conception);
§ 1870.06(B)(4) (physician must inform woman that a fetus may be viable
after 22 weeks from conception). An average pregnancy lasts approximately
38 weeks from the time of conception or, as more commonly measured, 40 weeks
from the beginning of the woman's last menstrual period. Under both methods
there may be more than a 2-week deviation either way. |
| [199] | Because of the approximate nature of these measurements, there is no certain
method of delineating "trimesters." Frequently, the first trimester is estimated
as 12 weeks following conception, or 14 weeks following the last menstrual
period. We need not attempt to draw a precise line, as this Court -- for
purposes of analysis -- has identified the "compelling point" for the State's
interest in health as "approximately the end of the first trimester." Roe,
410 U.S., at 163. Unless otherwise indicated, all references in this opinion
to gestational age are based on the time from the beginning of the last
menstrual period. |
| [200] | *fn16 The Joint Commission
on Accreditation of Hospitals (JCAH), for example, has established guidelines
for the following services: dietetic, emergency, home care, nuclear medicine,
pharmaceutical, professional library, rehabilitation, social work, and special
care. See generally JCAH, Accreditation Manual for Hospitals, 1983 Edition
(1982). |
| [201] | *fn17 Akron's ordinance distinguishes
between "hospitals" and outpatient clinics. Section 1870.02 provides that
even first-trimester abortions must be performed in "a hospital or an abortion
facility." "Abortion facility" is defined as "a clinic, physician's office,
or any other place or facility in which abortions are performed, other than
a hospital." § 1870.01(G). |
| [202] | *fn18 The Court of Appeals
believed that it was bound by Gary-Northwest Indiana Women's Services, Inc.
v. Bowen, 496 F.Supp. 894 (ND Ind. 1980) (three-Judge court), summarily
aff'd sub nom. Gary-Northwest Indiana Women's Services, Inc. v. Orr, 451
U.S. 934 (1981), in which an Indiana second-trimester hospitalization requirement
was upheld. Although the District Court in that case found that "Roe does
not render the constitutionality of second trimester regulations subject
to either the availability of abortions or the improvements in medical techniques
and skills," 496 F.Supp., at 901-902, it also rested the decision on the
alternative ground that the plaintiffs had failed to provide evidence to
support their theory that it was unreasonable to require hospitalization
for dilation and evacuation abortions performed early in the second trimester.
See id., at 902-903. Our summary affirmance therefore is not binding precedent
on the hospitalization issue. See Illinois State Board of Elections v. Socialist
Workers Party, 440 U.S. 173, 180-181, 182-183 (1979). |
| [203] | *fn19 We also found that the
additional requirement that the licensed hospital be accredited by the JCAH
was "not 'based on differences that are reasonably related to the purposes
of the Act in which it is found.'" Doe, 410 U.S., at 194 (quoting Morey
v. Doud, 354 U.S. 457, 465 (1957)). We concluded that, in any event, Georgia's
hospital requirement was invalid because it applied to first-trimester abortions. |
| [204] | *fn20 National statistics indicate
a similar cost difference. In 1978 the average clinic charged $284 for a
D&E abortion, whereas the average hospital charge was $435. The hospital
charge did not include the physician's fee, which ran as high as $300. See
Rosoff, The Availability of Second-Trimester Abortion Services in the United
States, published in Second-Trimester Abortion: Perspectives After a Decade
of Experience 35 (G. Berger, W. Brenner, & L. Keith eds. 1981) (hereinafter
Second-Trimester Abortion). |
| [205] | *fn21 The Akron situation is
not unique. In many areas of this country, few, if any, hospitals perform
second-trimester abortions. See, e. g., Planned Parenthood Assn. of Kansas
City, Mo., Inc. v. Ashcroft, 664 F.2d, at 689 (second-trimester D&E abortions
available at only one hospital in Missouri); Wolfe v. Stumbo, 519 F.Supp.
22, 23 (WD Ky. 1980) (no elective post-first-trimester abortion performed
in Kentucky hospitals); Margaret S. v. Edwards, 488 F.Supp. 181, 192 (ED
La. 1980) (no hospitals in Louisiana perform abortions after first trimester). |
| [206] | *fn22 The death-to-case ratio
for all second-trimester abortions in this country fell from 14.4 deaths
per 100,000 abortions in 1972 to 7.6 per 100,000 in 1977. See Tyler, Cates,
Schulz, Selik, & Smith, Second-Trimester Induced Abortion in the United
States, published in Second-Trimester Abortion 17-20. |
| [207] | *fn23 At the time Roe was decided,
the D&E procedure was used only to perform first-trimester abortions. |
| [208] | *fn24 Instillation procedures,
the primary means of performing a second-trimester abortion before the development
of D&E, generally cannot be performed until approximately the 16th week
of pregnancy because until that time the amniotic sac is too small. See
Grimes & Cates, Dilatation and Evacuation, published in Second-Trimester
Abortion 121. |
| [209] | *fn25 See also Planned Parenthood
Assn. of Kansas City, Mo., Inc. v. Ashcroft, supra, at 690, n. 6 (discussing
testimony by Dr. Willard Cates, Chief of Federal Abortion Surveillance for
the National Centers for Disease Control, that D&E second-trimester abortions
are as safely performed outside of hospitals up to the 16th week); APHA
Recommended Guide 654 (outpatient D&E is safer than all in-hospital non-D&E
abortion procedures during the second trimester). |
| [210] | *fn26 At trial Akron relied
largely on the former position of the various medical organizations concerning
hospitalization during the second trimester. See 651 F.2d, at 1209. The
revised position of the ACOG did not occur until after trial. |
| [211] | Akron also argues that the safety of nonhospital D&E abortions depends
on adherence to minimum standards such as those adopted by ACOG for free-standing
surgical facilities, see ACOG Standards 51-62, and that there is no evidence
that plaintiffs' clinics operate in this manner. But the issue in this litigation
is not whether these clinics would meet such standards if they were prescribed
by the city. Rather, Akron has gone much further by banning all second-trimester
abortions in all clinics, a regulation that does not reasonably further
the city's interest in promoting health. We continue to hold, as we did
in Doe v. Bolton, that a State may, "from and after the end of the first
trimester, adopt standards for licensing all facilities where abortions
may be performed so long as those standards are legitimately related to
the objective the State seeks to accomplish." 410 U.S., at 194-195. This
includes standards designed to correct any deficiencies that Akron reasonably
believes exist in the clinics' present operation. |
| [212] | *fn27 The city thus implies
that its hospital requirement may be sustained because it is reasonable
as applied to later D&E abortions or to all second-trimester instillation
abortions. We do not hold today that a State in no circumstances may require
that some abortions be performed in a full-service hospital. Abortions performed
by D&E are much safer, up to a point in the development of the fetus, than
those performed by instillation methods. See Cates & Grimes, Morbidity and
Mortality, published in Second-Trimester Abortion 166-169. The evidence
before us as to the need for hospitalization concerns only the D&E method
performed in the early weeks of the second trimester. See 651 F.2d, at 1208-1210. |
| [213] | *fn28 In the United States
during 1978, 82.1% of all abortions from 13-15 weeks and 24.6% of all abortions
from 16-20 weeks were performed by the D&E method. See Department of Health
and Human Services, Centers for Disease Control, Abortion Surveillance:
Annual Summary 1978, Table 14, p. 43 (1980). |
| [214] | *fn29 The Court of Appeals
upheld § 1870.05(A)'s notification requirement. See 651 F.2d, at 1206.
The validity of this ruling has not been challenged in this Court. |
| [215] | *fn30 The Court's primary holding
in Matheson was that the pregnant minor who questioned Utah's abortion consent
requirement on the ground that it impermissibly applied to mature or emancipated
minors lacked standing to raise that argument since she had not alleged
that she or any member of her class was mature or emancipated. 450 U.S.,
at 406. No such standing problem exists here, however, as the physician
plaintiff, who is subject to potential criminal liability for failure to
comply with the requirements of § 1870.05(B), has standing to raise
the claims of his minor patients. See Danforth, 428 U.S., at 62; Doe v.
Bolton, 410 U.S., at 188-189; Bellotti II, 443 U.S., at 627, n. 5 (plurality
opinion). |
| [216] | *fn31 The Ohio Juvenile Court
has jurisdiction over any child "alleged to be a juvenile traffic offender,
delinquent, unruly, abused, neglected, or dependent." Ohio Rev. Code Ann.
§ 2151.23 (Supp. 1982). The only category that arguably could encompass
a pregnant minor desiring an abortion would be the "neglected" child category.
A neglected child is defined as one " parents, guardian or custodian neglects
or refuses to provide him with proper or necessary subsistence, education,
medical or surgical care, or other care necessary for his health, morals,
or well being." § 2151.03. Even assuming that the Ohio courts would
construe these provisions as permitting a minor to obtain judicial approval
for the "proper or necessary . . . medical or surgical care" of an abortion,
where her parents had refused to provide that care, the statute makes no
provision for a mature or emancipated minor completely to avoid hostile
parental involvement by demonstrating to the satisfaction of the court that
she is capable of exercising her constitutional right to choose an abortion.
On the contrary, the statute requires that the minor's parents be notified
once a petition has been filed, § 2151.28, a requirement that in the
case of a mature minor seeking an abortion would be unconstitutional. See
H. L. v. Matheson, 450 U.S., at 420 (POWELL, J., Concurring); id., at 428,
n. 3 (MARSHALL, J., Dissenting). |
| [217] | *fn32 In particular, we have
emphasized that a State's interest in protecting immature minors and in
promoting family integrity gives it a special interest in ensuring that
the abortion decision is made with understanding and after careful deliberation.
See, e. g., H. L. v. Matheson, 450 U.S., at 411; id., at 419-420 (POWELL,
J., Concurring); id., at 421-424 (STEVENS, J., Concurring in judgment). |
| [218] | *fn33 A State is not always
foreclosed from asserting an interest in whether pregnancies end in abortion
or childbirth. In Maher v. Roe, 432 U.S. 464 (1977), and Harris v. McRae,
448 U.S. 297 (1980), we upheld governmental spending statutes that reimbursed
indigent women for childbirth but not abortion. This legislation to further
an interest in preferring childbirth over abortion was permissible, however,
only because it did not add any "restriction on access to abortions that
was not already there." Maher, supra, at 474. |
| [219] | *fn34 This description must
include, but not be limited to, "appearance, mobility, tactile sensitivity,
including pain, perception or response, brain and heart function, the presence
of internal organs and the presence of external members." The District Court
found that "there was much evidence that it is impossible to determine many
of items, . . . such as the 'unborn child's' sensitivity to pain." 479 F.Supp.,
at 1203. |
| [220] | *fn35 The District Court found
that "there was much evidence that rather than being 'a major surgical procedure'
as the physician is required to state . . . , an abortion generally is considered
a 'minor surgical procedure.'" Ibid. |
| [221] | *fn36 Section 1870.06(B)(5)
requires the physician to state |
| [222] | " abortion is a major surgical procedure which can result in serious complications,
including hemorrhage, perforated uterus, infection, menstrual disturbances,
sterility and miscarriage and prematurity in subsequent pregnancies; and
that abortion may leave essentially unaffected or may worsen any existing
psychological problems she may have, and can result in severe emotional
disturbances." |
| [223] | *fn37 Akron has made little
effort to defend the constitutionality of §§ 1870.06(B)(3), (4),
and (5), but argues that the remaining four subsections of the provision
are valid and severable. These four subsections require that the patient
be informed by the attending physician of the fact that she is pregnant,
§ 1870.06(B)(1), the gestational age of the fetus, § 1870.06(B)(2),
the availability of information on birth control and adoption, § 1870.06(B)(6),
and the availability of assistance during pregnancy and after childbirth,
§ 1870.06(B)(7). This information, to the extent it is accurate, certainly
is not objectionable, and probably is routinely made available to the patient.
We are not persuaded, however, to sever these provisions from the remainder
of § 1870.06(B). They require that all of the information be given
orally by the attending physician when much, if not all of it, could be
given by a qualified person assisting the physician. See (infra), at 448-449. |
| [224] | *fn38 We do not suggest that
appropriate counseling consists simply of a recital of pertinent medical
facts. On the contrary, it is clear that the needs of patients for information
and an opportunity to discuss the abortion decision will vary considerably.
It is not disputed that individual counseling should be available for those
persons who desire or need it. See, e. g., National Abortion Federation
Standards 1 (1981) (hereinafter NAF Standards); Planned Parenthood of Metropolitan
Washington, D.C., Inc., Guidelines for Operation, Maintenance, and Evaluation
of First Trimester Outpatient Abortion Facilities 5 (1980). Such an opportunity
may be especially important for minors alienated or separated from their
parents. See APHA Recommended Guide 654. Thus, for most patients, mere provision
of a printed statement of relevant information is not counseling. |
| [225] | *fn39 This Court's consistent
recognition of the critical role of the physician in the abortion procedure
has been based on the model of the competent, conscientious, and ethical
physician. See Doe, 410 U.S., at 196-197. We have no occasion in this case
to consider conduct by physicians that may depart from this model. Cf. Danforth,
428 U.S., at 91-92, n. 2 (Stewart, J., Concurring). |
| [226] | *fn40 Cf. ACOG Standards 54
("If counseling has been provided elsewhere, the physician performing the
abortion should verify that the counseling has taken place"). |
| [227] | *fn41 The importance of well-trained
and competent counselors is not in dispute. See, e. g., APHA Recommended
Guide 654 ("Abortion counselors may be highly skilled physicians as well
as trained, sympathetic individuals working under appropriate supervision");
NAF Standards 2 (counselors must be trained initially at least in the following
subjects: "sexual and reproductive health; abortion technology; contraceptive
technology; short-term counseling skills; community resources and referrals;
informed consent; agency policies and practices"). |
| [228] | *fn42 This provision does not
apply if the physician certifies in writing that "there is an emergency
need for an abortion to be performed or induced such that continuation of
the pregnancy poses an immediate threat and grave risk to the life or physical
health of the pregnant woman." § 1870.12. |
| [229] | *fn43 The ACOG recommends that
a clinic allow "sufficient time for reflection prior to making an informed
decision." ACOG Standards 54. In contrast to § 1870.07's mandatory
waiting period, this standard recognizes that the time needed for consideration
of the decision varies depending on the particular situation of the patient
and how much prior counseling she has received. |
| [230] | *fn44 In Fitzpatrick the District
Court accepted Pennsylvania's contention that its statute governing the
"humane" disposal of fetal remains was designed only to prevent such "mindless
dumping." That decision is distinguishable because the statute did not impose
criminal liability, but merely provided for the promulgation of regulations
to implement the disposal requirement. See 401 F.Supp., at 572-573. |
| [231] | *fn45 We are not persuaded
by Akron's argument that the word "humane" should be severed from the statute.
The uncertain meaning of the phrase "humane and sanitary" leaves doubt as
to whether the city would have enacted § 1870.16 with the word "sanitary"
alone. Akron remains free, of course, to enact more carefully drawn regulations
that further its legitimate interest in proper disposal of fetal remains. |
| [232] | 1 Roe recognized that the State possesses important and legitimate interests
in protecting maternal health and the potentiality of human life. These
"separate and distinct" interests were held to grow "in substantiality as
the woman approaches term and, at a point during pregnancy, each becomes
'compelling.'" 410 U.S., at 162-163. The state interest in maternal health
was said to become compelling "at approximately the end of the first trimester."
Id., at 163. Before that time, "the abortion decision and its effectuation
must be left to the medical judgment of the pregnant woman's attending physician."
Id., at 164. After the end of the first trimester, "a State may regulate
the abortion procedure to the extent that the regulation reasonably relates
to the preservation and protection of maternal health." Id., at 163. The
Court noted that "in the light of present medical knowledge . . . mortality
in abortion may be less than mortality in normal childbirth" during the
first trimester of pregnancy. Ibid. |
| [233] | The state interest in potential human life was held to become compelling
at "viability," defined by the Court as that point "at which the fetus .
. . potentially able to live outside the mother's womb, albeit with artificial
aid." Roe, 410 U.S., at 160 (footnote omitted). Based on the Court's review
of the contemporary medical literature, it placed viability at about 28
weeks, but acknowledged that this point may occur as early as 24 weeks.
After viability is reached, the State may, according to Roe, proscribe abortion
altogether, except when it is necessary to preserve the life and health
of the mother. See id., at 163-164. Since Roe, the Court has held that Roe
"left the point [of viability] flexible for anticipated advancements in
medical skill." Colautti v. Franklin, 439 U.S. 379, 387 (1979). |
| [234] | The Court has also identified a state interest in protection of the young
and "familial integrity" in the abortion context. See, e. g., H. L. v. Matheson,
450 U.S. 398, 411 (1981). |
| [235] | 2 Although the Court purports to retain the trimester approach as "a reasonable
legal framework for limiting" state regulatory authority over abortions,
ante at 429, n. 11, the Court expressly abandons the Roe view that the relative
rates of childbirth and abortion mortality are relevant for determining
whether second-trimester regulations are reasonably related to maternal
health. Instead, the Court decides that a health regulation must not "depart
from accepted medical practice" if it is to be upheld. Ante, at 431. The
State must now "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." Ante, at 434 (emphasis added). |
| [236] | 3 The Court holds that the summary affirmance in Gary-Northwest Indiana
Women's Services, Inc. v. Bowen, 496 F.Supp. 894 (ND Ind. 1980) (three-Judge
court), aff'd sub nom. Gary-Northwest Indiana Women's Services, Inc. v.
Orr, 451 U.S. 934 (1981), is not, as the court below thought, binding precedent
on the hospitalization issue. See ante, at 433, n. 18. Although the Court
reads Gary-Northwest to be decided on the alternative ground that the plaintiffs
failed to prove the safety of second-trimester abortions, ante, at 433,
n. 18, the Court simply ignores the fact that the District Court in Gary-Northwest
held that "even if the plaintiffs could prove birth more dangerous than
early second trimester D&E abortions," that would not matter insofar as
the constitutionality of the regulations were concerned. See 496 F.Supp.,
at 903 (emphasis added). |
| [237] | 4 Irrespective of the difficulty of the task, legislatures, with their
superior factfinding capabilities, are certainly better able to make the
necessary judgments than are courts. |
| [238] | 5 One study shows that infants born alive with a gestational age of less
than 25 weeks and weight between 500 and 1,249 grams have a 20% chance of
survival. See Phillip, Little, Polivy, & Lucey, Neonatal Mortality Risk
for the Eighties: The Importance of Birth Weight/Gestational Age Groups,
68 Pediatrics 122 (1981). Another recent comparative study shows that preterm
infants with a weight of 1,000 grams or less born in one hospital had a
42% rate of survival. Kopelman, The Smallest Preterm Infants: Reasons for
Optimism and New Dilemmas, 132 Am. J. Diseases of Children 461 (1978). An
infant weighing 484 grams and having a gestational age of 22 weeks at birth
is now thriving in a Los Angeles hospital, and the attending physician has
stated that the infant has a "95% chance of survival." Washington Post,
Mar. 31, 1983, p. A2, col. 2. The aborted fetus in Simopoulos v. Virginia,
post, p. 506, weighed 495 grams and had a gestational age of approximately
22 weeks. |
| [239] | Recent developments promise even greater success in overcoming the various
respiratory and immunological neonatal complications that stand in the way
of increased fetal viability. See, e. g., Beddis, Collins, Levy, Godfrey,
& Silverman, New Technique for Servo-Control of Arterial Oxygen Tension
in Preterm Infants, 54 Archives of Disease in Childhood 278 (1979). "There
is absolutely no question that in the current era there has been a sustained
and progressive improvement in the outlook for survival of small premature
infants." Stern, Intensive Care of the Pre-Term Infant, 26 Danish Med. Bull.
144 (1979). |
| [240] | 6 Interestingly, the Court in Planned Parenthood of Central Missouri v.
Danforth, 428 U.S. 52 (1976), upheld a recordkeeping requirement as well
as the consent provision even though these requirements were imposed on
first-trimester abortions and although the State did not impose comparable
requirements on most other medical procedures. See id., at 65-67, 79-81.
Danforth, then, must be understood as a retreat from the position ostensibly
adopted in Roe that the State had no compelling interest in regulation during
the first trimester of pregnancy that would justify restrictions imposed
on the abortion decision. |
| [241] | 7 For example, the 1982 ACOG Standards, on which the Court relies so heavily
in its analysis, provide that physicians performing first-trimester abortions
in their offices should provide for prompt emergency treatment or hospitalization
in the event of any complications. See ACOG Standards, at 54. ACOG also
prescribes that certain equipment be available for office abortions. See
id., at 57. I have no doubt that the State has a compelling interest to
ensure that these or other requirements are met, and that this legitimate
concern would justify state regulation for health reasons even in the first
trimester of pregnancy. |
| [242] | 8 See Bellotti v. Baird, 428 U.S. 132, 147 (1976) (Bellotti I) (State
may not "impose undue burdens upon a minor capable of giving an informed
consent." In Bellotti I, the Court left open the question whether a judicial
hearing would unduly burden the Roe right of an adult woman. See 428 U.S.,
at 147); Bellotti v. Baird, 443 U.S. 622, 640 (1979) (Bellotti II) (opinion
of POWELL, J.) (State may not "unduly burden the right to seek an abortion");
Harris v. McRae, 448 U.S. 297, 314 (1980) ("The doctrine of Roe
v. Wade, the Court held in Maher, 'protects
the woman from unduly burdensome interference with her freedom to decide
whether to terminate her pregnancy,' [432 U.S.], at 473-474, such as the
severe criminal sanctions at issue in Roe v.
Wade, supra, or the absolute requirement of spousal consent
for an abortion challenged in Planned Parenthood of Central Missouri v.
Danforth, 428 U.S. 52"); Beal v. Doe, 432 U.S. 438, 446 (1977) (The state
interest in protecting potential human life "does not, at least until approximately
the third trimester, become sufficiently compelling to justify unduly burdensome
state interference . . ."); Carey v. Population Services International,
431 U.S. 678, 705 (1977) (POWELL, J., Concurring in part and Concurring
in judgment) ("In my view, [ Roe and Griswold v. Connecticut, 381 U.S. 479
(1965),] make clear that the [compelling state interest] standard has been
invoked only when the state regulation entirely frustrates or heavily burdens
the exercise of constitutional rights in this area. See Bellotti v. Baird,
428 U.S. 132, 147 (1976)"). Even though the Court did not explicitly use
the "unduly burdensome" standard in evaluating the informed-consent requirement
in Planned Parenthood of Central Missouri v. Danforth, supra, the informed-consent
requirement for first-trimester abortions in Danforth was upheld because
it did not "unduly the right to seek an abortion." Bellotti I, supra, at
147. |
| [243] | 9 The only case in which the Court invalidated regulations that were not
"undue burdens" was Doe v. Bolton, 410 U.S. 179 (1973), which was decided
on the same day as Roe. In Doe, the Court invalidated a hospitalization
requirement because it covered first-trimester abortion. The Court also
invalidated a hospital accreditation requirement, a hospital-committee approval
requirement, and a two-doctor concurrence requirement. The Court clearly
based its disapproval of these requirements on the fact that the State did
not impose them on any other medical procedure apart from abortion. But
the Court subsequent to Doe has expressly rejected the view that differential
treatment of abortion requires invalidation of regulations. See Danforth,
428 U.S., at 67, 80-81; Maher v. Roe, 432 U.S. 464, 480 (1977); Harris,
448 U.S., at 325. See also Planned Parenthood Assn. of Kansas City, Mo.,
Inc. v. Ashcroft, post, p. 476. |
| [244] | 10 In his amicus curiae brief in support of the city of Akron, the Solicitor
General of the United States argues that we should adopt the "unduly burdensome"
standard and in doing so, we should "accord heavy deference to the legislative
judgment" in determining what constitutes an "undue burden." See Brief for
the United States as Amicus Curiae 10. The "unduly burdensome" standard
is appropriate not because it incorporates deference to legislative judgment
at the threshold stage of analysis, but rather because of the limited nature
of the fundamental right that has been recognized in the abortion cases.
Although our cases do require that we "pay careful attention" to the legislative
judgment before we invoke strict scrutiny, see e. g., Columbia Broadcasting
System, Inc. v. Democratic National Committee, 412 U.S., at 103, it is not
appropriate to weigh the state interests at the threshold stage. |
| [245] | 11 The Court has never required that state regulation that burdens the
abortion decision be "narrowly drawn" to express only the relevant state
interest. In Roe, the Court mentioned "narrowly drawn" legislative enactments,
410 U.S., at 155, but the Court never actually adopted this standard in
the Roe analysis. In its decision today, the Court fully endorses the Roe
requirement that a burdensome health regulation, or as the Court appears
to call it, a "significant obstacle," ante, at 434, be "reasonably related"
to the state compelling interest. See ante, at 430-431, 435, 438. The Court
recognizes that " State necessarily must have latitude in adopting regulations
of general applicability in this sensitive area." Ante, at 434. See also
Simopoulos v. Virginia, post, at 516. Nevertheless, the Court fails to apply
the "reasonably related" standard. The hospitalization requirement "reasonably
relates" to its compelling interest in protection and preservation of maternal
health under any normal understanding of what "reasonably relates" signifies. |
| [246] | The Court concludes that the regulation must fall because "it appears
that during a substantial portion of the second trimester the State's regulation
' from accepted medical practice.'" Ante, at 434. It is difficult to see
how the Court concludes that the regulation " from accepted medical practice"
during "a substantial portion of the second trimester," ibid., in light
of the fact that the Court concludes that D&E abortions may be performed
safely in an outpatient clinic through 16 weeks, or 4 weeks into the second
trimester. Ante, at 436-437. Four weeks is hardly a "substantial portion"
of the second trimester. |
| [247] | 12 In my view, no decision of this Court has yet held that parental notification
in the case of mature minors is unconstitutional. Although the plurality
opinion of JUSTICE POWELL in Bellotti II suggested that the state statute
in that case was unconstitutional because, inter alia, it failed to provide
all minors with an opportunity "to go directly to a court without first
consulting or notifying her parents," 443 U.S., at 647, the Court in H.
L. v. Matheson held that unemancipated and immature minors had "no constitutional
right to notify a court in lieu of notifying their parents." 450 U.S., at
412, n. 22. Furthermore, the Court in H. L. v. Matheson expressly did not
decide that a parental notification requirement would be unconstitutional
if the State otherwise permitted mature minors to make abortion decisions
free of parental or judicial "veto." See id., at 406-407. |
| [248] | 13 Section 1870.06(B) requires that the attending physician orally inform
the pregnant woman: (1) that she is pregnant; (2) of the probable number
of weeks since conception; (3) that the unborn child is a human being from
the moment of conception, and has certain anatomical and physiological characteristics;
(4) that the unborn child may be viable and, if so, the physician has a
legal responsibility to try to save the child; (5) that abortion is a major
surgical procedure that can result in serious physical and psychological
complications; (6) that various agencies exist that will provide the pregnant
woman with information about birth control; and (7) that various agencies
exist that will assist the woman through pregnancy should she decide not
to undergo the abortion. Section 1870.06(C) requires the attending physician
to inform the woman of risks associated with her particular pregnancy and
proposed abortion technique, as well as to furnish information that the
physician deems relevant "in his own medical judgment." |
| [249] | 14 The Court in Danforth did not even view the informed-consent requirement
as having a "legally significant impact" on first-trimester abortions that
would trigger the Roe and Doe proscriptions against state interference in
the decision to seek a first-trimester abortion. See 428 U.S., at 81 (recordkeeping
requirements). |
| [250] | 15 Assuming, arguendo, that the Court now decides that Danforth, Bellotti
II, and H. L. v. Matheson were incorrect, and that the informed-consent
provisions do burden the right to seek an abortion, the Court inexplicably
refuses to determine whether this "burden" "reasonably relates" to legitimate
state interests. Ante, at 430 (quoting Roe, 410 U.S., at 163). Rather, the
Court now decides that an informed-consent provision must be justified by
a "vital state need" before it can be upheld. See ante, at 448. |
| [251] | 16 This is not to say that the informed-consent provisions may not violate
the First Amendment rights of the physician if the State requires him or
her to communicate its ideology. See Wooley v. Maynard, 430 U.S. 705 (1977).
However, it does not appear that Akron Center raised any First Amendment
argument in the court below. See Brief for Akron Center for Reproductive
Health, Inc., in No. 79-3701 (CA6), pp. 18-23; Reply Brief for Akron Center
for Reproductive Health, Inc., in No. 79-3701 (CA6), pp. 26-33. |
| [252] | 17 On the basis of this analysis of the waiting-period requirement, the
Court charges that "the Dissent would uphold virtually any abortion-inhibiting
regulation . . . ." Ante, at 421, n. 1. The waiting-period requirement is
valid because it imposes a small cost when all relevant factors are taken
into consideration. This is precisely the reasoning that JUSTICE POWELL
employs in upholding the pathology-report requirement in Planned Parenthood
Assn. of Kansas City, Mo., Inc. v. Ashcroft, post, p. 476 (report requirement
imposes a "comparatively small additional cost," post, at 489). |
The Climate Change and Public Health Law Site
The Best on the WWW Since 1995!
Copyright as to non-public domain materials
See DR-KATE.COM for home hurricane and disaster preparation
See WWW.EPR-ART.COM for photography of southern Louisiana and Hurricane Katrina
Professor Edward P. Richards, III, JD, MPH - Webmaster
Provide Website Feedback - https://www.lsu.edu/feedback
Privacy Statement - https://www.lsu.edu/privacy
Accessibility Statement - https://www.lsu.edu/accessibility