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| [1] | SUPREME COURT OF THE UNITED STATES |
| [2] | Nos. 91-744, 91-902 |
| [3] | 1992.SCT.3750 <http://www.versuslaw.com>,
112 S. Ct. 2791, 120 L. Ed. 2d 674, 60 U.S.L.W. 4795 |
| [4] | June 29, 1992 |
| [5] | PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA, ET AL., PETITIONERS 91-744 v. ROBERT P. CASEY, ET AL., ETC. ROBERT P. CASEY, ET AL., ETC., PETITIONERS 91-902 V. PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA ET AL. |
| [6] | ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT. |
| [7] | O'connor, Kennedy, and Souter, JJ., announced the judgment of the Court
and delivered the opinion of the Court with respect to Parts I, II, III,
V-a, V-c, and VI, in which Blackmun and Stevens, JJ., joined, an opinion
with respect to Part V-e, in which Stevens, J., joined, and an opinion with
respect to Parts IV, V-b, and V-d. Stevens, J., filed an opinion Concurring
in part and Dissenting in part. Blackmun, J., filed an opinion Concurring
in part, Concurring in the judgment in part, and Dissenting in part. Rehnquist,
C. J., filed an opinion Concurring in the judgment in part and Dissenting
in part, in which White, Scalia, and Thomas, JJ., joined. Scalia, J., filed
an opinion Concurring in the judgment in part and Dissenting in part, in
which Rehnquist, C. J., and White and Thomas, JJ., joined. |
| [8] | The opinion of the court was delivered by: O'connor; Kennedy; Souter |
| [9] | At issue are five provisions of the Pennsylvania Abortion Control Act
of 1982: § 3205, which requires that a woman seeking an abortion give her
informed consent prior to the procedure, and specifies that she be provided
with certain information at least 24 hours before the abortion is performed;
§ 3206, which mandates the informed consent of one parent for a minor to
obtain an abortion, but provides a judicial bypass procedure; § 3209, which
commands that, unless certain exceptions apply, a married woman seeking
an abortion must sign a statement indicating that she has notified her husband;
§ 3203, which defines a "medical emergency" that will excuse compliance
with the foregoing requirements; and §§ 3207(b), 3214(a), and 3214(f), which
impose certain reporting requirements on facilities providing abortion services.
Before any of the provisions took effect, the petitioners, five abortion
clinics and a physician representing himself and a class of doctors who
provide abortion services, brought this suit seeking a declaratory judgment
that each of the provisions was unconstitutional on its face, as well as
injunctive relief. The District Court held all the provisions unconstitutional
and permanently enjoined their enforcement. The Court of Appeals affirmed
in part and reversed in part, striking down the husband notification provision
but upholding the others. |
| [10] | Held: The judgment in No. 91-902 is affirmed; the judgment in No. 91-744
is affirmed in part and reversed in part, and the case is remanded. |
| [11] | 947 F.2d 682: No. 91-902, affirmed; No. 91-744, affirmed in part, reversed
in part, and remanded. |
| [12] | Justice O'CONNOR, JUSTICE KENNEDY, and JUSTICE SOUTER delivered the opinion
of the Court with respect to Parts I, II, and III, concluding that: |
| [13] | 1. Consideration of the fundamental constitutional question resolved by
Roe v. Wade, 410 U.S. 113, principles of institutional integrity, and the
rule of stare decisis require that Roe 's essential holding be retained
and reaffirmed as to each of its three parts: (1) a recognition of a woman's
right to choose to have an abortion before fetal viability and to obtain
it without undue interference from the State, whose previability interests
are not strong enough to support an abortion prohibition or the imposition
of substantial obstacles to the woman's effective right to elect the procedure;
(2) a confirmation of the State's power to restrict abortions after viability,
if the law contains exceptions for pregnancies endangering a woman's life
or health; and (3) the principle that the State has legitimate interests
from the outset of the pregnancy in protecting the health of the woman and
the life of the fetus that may become a child. Pp. 1-27. |
| [14] | (a) A reexamination of the principles that define the woman's rights and
the State's authority regarding abortions is required by the doubt this
Court's subsequent decisions have cast upon the meaning and reach of Roe
's central holding, by the fact that THE CHIEF JUSTICE would overrule Roe,
and by the necessity that state and federal courts and legislatures have
adequate guidance on the subject. Pp. 1-3. |
| [15] | (b) Roe determined that a woman's decision to terminate her pregnancy
is a "liberty" protected against state interference by the substantive
component of the Due Process Clause of the Fourteenth Amendment. Neither
the Bill of Rights nor the specific practices of States at the time of the
Fourteenth Amendment's adoption marks the outer limits of the substantive
sphere of such "liberty." Rather, the adjudication of substantive
due process claims may require this Court to exercise its reasoned judgment
in determining the boundaries between the individual's liberty and the demands
of organized society. The Court's decisions have afforded constitutional
protection to personal decisions relating to marriage, see, e. g., Loving
v. Virginia, 388 U.S. 1, procreation, Skinner v. Oklahoma, 316 U.S. 535,
family relationships, Prince v. Massachusetts, 321 U.S. 158, child rearing
and education, Pierce v. Society of Sisters, 268 U.S. 510, and contraception,
see, e. g., Griswold v. Connecticut, 381 U.S. 479, and have recognized the
right of the individual to be free from unwarranted governmental intrusion
into matters so fundamentally affecting a person as the decision whether
to bear or beget a child, Eisenstadt v. Baird, 405 U.S. 438, 453. Roe 's
central holding properly invoked the reasoning and tradition of these precedents.
Pp. 4-11. |
| [16] | (c) Application of the doctrine of stare decisis confirms that Roe 's
essential holding should be reaffirmed. In reexamining that holding, the
Court's judgment is informed by a series of prudential and pragmatic considerations
designed to test the consistency of overruling the holding with the ideal
of the rule of law, and to gauge the respective costs of reaffirming and
overruling. Pp. 11-13. |
| [17] | (d) Although Roe has engendered opposition, it has in no sense proven
unworkable, representing as it does a simple limitation beyond which a state
law is unenforceable. P.13. |
| [18] | (e) The Roe rule's limitation on state power could not be repudiated without
serious inequity to people who, for two decades of economic and social developments,
have organized intimate relationships and made choices that define their
views of themselves and their places in society, in reliance on the availability
of abortion in the event that contraception should fail. The ability of
women to participate equally in the economic and social life of the Nation
has been facilitated by their ability to control their reproductive lives.
The Constitution serves human values, and while the effect of reliance on
Roe cannot be exactly measured, neither can the certain costs of overruling
Roe for people who have ordered their thinking and living around that case
be dismissed. Pp. 13-14. |
| [19] | (f) No evolution of legal principle has left Roe 's central rule a doctrinal
anachronism discounted by society. If Roe is placed among the cases exemplified
by Griswold, supra, it is clearly in no jeopardy, since subsequent constitutional
developments have neither disturbed, nor do they threaten to diminish, the
liberty recognized in such cases. Similarly, if Roe is seen as stating a
rule of personal autonomy and bodily integrity, akin to cases recognizing
limits on governmental power to mandate medical treatment or to bar its
rejection, this Court's post- Roe decisions accord with Roe 's view that
a State's interest in the protection of life falls short of justifying any
plenary override of individual liberty claims. See, e. g., Cruzan v. Director,
Missouri Dept. of Health, 497 U.S. 261, . Finally, if Roe is classified
as sui generis, there clearly has been no erosion of its central determination.
It was expressly reaffirmed in Akron v. Akron Center for Reproductive Health,
462 U.S. 416 (Akron I), and Thornburgh v. American College of Obstetricians
and Gynecologists, 476 U.S. 747; and, in Webster v. Reproductive Health
Services, 492 U.S. 490, a majority either voted to reaffirm or declined
to address the constitutional validity of Roe 's central holding. Pp. 14-17. |
| [20] | (g) No change in Roe 's factual underpinning has left its central holding
obsolete, and none supports an argument for its overruling. Although subsequent
maternal health care advances allow for later abortions safe to the pregnant
woman, and post- Roe neonatal care developments have advanced viability
to a point somewhat earlier, these facts go only to the scheme of time limits
on the realization of competing interests. Thus, any later divergences from
the factual premises of Roe have no bearing on the validity of its central
holding, that viability marks the earliest point at which the State's interest
in fetal life is constitutionally adequate to justify a legislative ban
on nontherapeutic abortions. The soundness or unsoundness of that constitutional
judgment in no sense turns on when viability occurs. Whenever it may occur,
its attainment will continue to serve as the critical fact. Pp. 17-18. |
| [21] | (h) A comparison between Roe and two decisional lines of comparable significance
-- the line identified with Lochner v. New York, 198 U.S. 45, and the line
that began with Plessy v. Ferguson, 163 U.S. 537 -- confirms the result
reached here. Those lines were overruled -- by, respectively, West Coast
Hotel Co. v. Parrish, 300 U.S. 379, and Brown v. Board of Education, 347
U.S. 483 -- on the basis of facts, or an understanding of facts, changed
from those which furnished the claimed justifications for the earlier constitutional
resolutions. The overruling decisions were comprehensible to the Nation,
and defensible, as the Court's responses to changed circumstances. In contrast,
because neither the factual underpinnings of Roe 's central holding nor
this Court's understanding of it has changed (and because no other indication
of weakened precedent has been shown), the Court could not pretend to be
reexamining Roe with any justification beyond a present doctrinal Disposition
to come out differently from the Roe Court. That is an inadequate basis
for overruling a prior case. Pp. 19-22. |
| [22] | (i) Overruling Roe 's central holding would not only reach an unjustifiable
result under stare decisis principles, but would seriously weaken the Court's
capacity to exercise the judicial power and to function as the Supreme Court
of a Nation dedicated to the rule of law. Where the Court acts to resolve
the sort of unique, intensely divisive controversy reflected in Roe, its
decision has a dimension not present in normal cases and is entitled to
rare precedential force to counter the inevitable efforts to overturn it
and to thwart its implementation. Only the most convincing justification
under accepted standards of precedent could suffice to demonstrate that
a later decision overruling the first was anything but a surrender to political
pressure and an unjustified repudiation of the principle on which the Court
staked its authority in the first instance. Moreover, the country's loss
of confidence in the Judiciary would be underscored by condemnation for
the Court's failure to keep faith with those who support the decision at
a cost to themselves. A decision to overrule Roe 's essential holding under
the existing circumstances would address error, if error there was, at the
cost of both profound and unnecessary damage to the Court's legitimacy and
to the Nation's commitment to the rule of law. Pp. 22-27. |
| [23] | Justice O'CONNOR, JUSTICE KENNEDY, and JUSTICE SOUTER concluded in Part
IV that an examination of Roe v. Wade, 410 U.S. 113, and subsequent cases,
reveals a number of guiding principles that should control the assessment
of the Pennsylvania statute: |
| [24] | (a) To protect the central right recognized by Roe while at the same time
accommodating the State's profound interest in potential life, see, id.,
at 162, the undue burden standard should be employed. An undue burden exists,
and therefore a provision of law is invalid, if its purpose or effect is
to place substantial obstacles in the path of a woman seeking an abortion
before the fetus attains viability. |
| [25] | (b) Roe's rigid trimester framework is rejected. To promote the State's
interest in potential life throughout pregnancy, the State may take measures
to ensure that the woman's choice is informed. Measures designed to advance
this interest should not be invalidated if their purpose is to persuade
the woman to choose childbirth over abortion. These measures must not be
an undue burden on the right. |
| [26] | (c) As with any medical procedure, the State may enact regulations to
further the health or safety of a woman seeking an abortion, but may not
impose unnecessary health regulations that present a substantial obstacle
to a woman seeking an abortion. |
| [27] | (d) Adoption of the undue burden standard does not disturb Roe 's holding
that regardless of whether exceptions are made for particular circumstances,
a State may not prohibit any woman from making the ultimate decision to
terminate her pregnancy before viability. |
| [28] | (e) Roe 's holding that "subsequent to viability, the State in promoting
its interest in the potentiality of human life may, if it chooses, regulate,
and even proscribe, abortion except where it is necessary, in appropriate
medical judgment, for the preservation of the life or health of the mother"
is also reaffirmed. Id., at 164-165. Pp. 27-37. |
| [29] | Justice O'CONNOR, JUSTICE KENNEDY, and JUSTICE SOUTER delivered the opinion
of the Court with respect to Parts V-A and V-C, concluding that: |
| [30] | 1. As construed by the Court of Appeals, § 3203's medical emergency definition
is intended to assure that compliance with the State's abortion regulations
would not in any way pose a significant threat to a woman's life or health,
and thus does not violate the essential holding of Roe, supra, at 164. Although
the definition could be interpreted in an unconstitutional manner, this
Court defers to lower federal court interpretations of state law unless
they amount to "plain" error. Pp. 38-39. |
| [31] | 2. Section 3209's husband notification provision constitutes an undue
burden and is therefore invalid. A significant number of women will likely
be prevented from obtaining an abortion just as surely as if Pennsylvania
had outlawed the procedure entirely. The fact that § 3209 may affect fewer
than one percent of women seeking abortions does not save it from facial
invalidity, since the proper focus of constitutional inquiry is the group
for whom the law is a restriction, not the group for whom it is irrelevant.
Furthermore, it cannot be claimed that the father's interest in the fetus'
welfare is equal to the mother's protected liberty, since it is an inescapable
biological fact that state regulation with respect to the fetus will have
a far greater impact on the pregnant woman's bodily integrity than it will
on the husband. Section 3209 embodies a view of marriage consonant with
the common-law status of married women but repugnant to this Court's present
understanding of marriage and of the nature of the rights secured by the
Constitution. See Planned Parenthood of Central Mo. v. Danforth, 428 U.S.
52, 69. Pp. 46-58. |
| [32] | Justice O'CONNOR, JUSTICE KENNEDY, and JUSTICE SOUTER, joined by JUSTICE
STEVENS, concluded in Part V-E that all of the statute's recordkeeping and
reporting requirements, except that relating to spousal notice, are constitutional.
The reporting provision relating to the reasons a married woman has not
notified her husband that she intends to have an abortion must be invalidated
because it places an undue burden on a woman's choice. Pp. 59-60. |
| [33] | Justice O'CONNOR, JUSTICE KENNEDY, and JUSTICE SOUTER concluded in Parts
V-B and V-D that: |
| [34] | 1. Section 3205's informed consent provision is not an undue burden on
a woman's constitutional right to decide to terminate a pregnancy. To the
extent Akron I, 462 U.S., at 444, and Thornburgh, 476 U.S., at 762, find
a constitutional violation when the government requires, as it does here,
the giving of truthful, non-misleading information about the nature of the
abortion procedure, the attendant health risks and those of childbirth,
and the "probable gestational age" of the fetus, those cases are
inconsistent with Roe 's acknowledgement of an important interest in potential
life, and are overruled. Requiring that the woman be informed of the availability
of information relating to the consequences to the fetus does not interfere
with a constitutional right of privacy between a pregnant woman and her
physician, since the doctor-patient relation is derivative of the woman's
position, and does not underlie or override the abortion right. Moreover,
the physician's First Amendment rights not to speak are implicated only
as part of the practice of medicine, which is licensed and regulated by
the State. There is no evidence here that requiring a doctor to give the
required information would amount to a substantial obstacle to a woman seeking
abortion. |
| [35] | The premise behind Akron I 's invalidation of a waiting period between
the provision of the information deemed necessary to informed consent and
the performance of an abortion, id., at 450, is also wrong. Although § 3205's
24-hour waiting period may make some abortions more expensive and less convenient,
it cannot be said that it is invalid on the present record and in the context
of this facial challenge. Pp. 39-46. |
| [36] | 2. Section 3206's one-parent consent requirement and judicial bypass procedure
are constitutional. See, e. g., Ohio v. Akron Center for Reproductive Health,
497 U.S. 502, ... . Pp. 58-59. |
| [37] | JUSTICE BLACKMUN concluded that application of the strict scrutiny standard
of review required by this Court's abortion precedents results in the invalidation
of all the challenged provisions in the Pennsylvania statute, including
the reporting requirements, and therefore concurred in the judgment that
the requirement that a pregnant woman report her reasons for failing to
provide spousal notice is unconstitutional. Pp. 10, 14-15. |
| [38] | THE CHIEF JUSTICE, joined by JUSTICE WHITE, JUSTICE SCALIA, and JUSTICE
THOMAS, concluded that: |
| [39] | 1. Although Roe v. Wade, 410 U.S. 113, is not directly implicated by the
Pennsylvania statute, which simply regulates and does not prohibit abortion,
a reexamination of the "fundamental right" Roe accorded to a woman's
decision to abort a fetus, with the concomitant requirement that any state
regulation of abortion survive "strict scrutiny," id., at 154-156,
is warranted by the confusing and uncertain state of this Court's post-
Roe decisional law. A review of post- Roe cases demonstrates both that they
have expanded upon Roe in imposing increasingly greater restrictions on
the States, see Thornburgh v. American College of Obstetricians and Gynecologists,
476 U.S. 747, 783 (Burger, C. J., Dissenting), and that the Court has become
increasingly more divided, none of the last three such decisions having
commanded a majority opinion, see Ohio v. Akron Center for Reproductive
Health, 497 U.S. 502; Hodgson v. Minnesota, 497 U.S. 417; Webster v. Reproductive
Health Services, 492 U.S. 490. This confusion and uncertainty complicated
the task of the Court of Appeals, which concluded that the "undue burden"
standard adopted by JUSTICE O'CONNOR in Webster and Hodgson governs the
present cases. Pp. 1-8. |
| [40] | 2. The Roe Court reached too far when it analogized the right to abort
a fetus to the rights involved in Pierce v. Society of Sisters, 268 U.S.
510; Meyer v. Nebraska, 262 U.S. 390; Loving v. Virginia, 388 U.S. 1; and
Griswold v. Connecticut, 381 U.S. 479, and thereby deemed the right to abortion
to be "fundamental." None of these decisions endorsed an all-encompassing
"right of privacy," as Roe, supra, at 152-153, claimed. Because
abortion involves the purposeful termination of potential life, the abortion
decision must be recognized as sui generis, different in kind from the rights
protected in the earlier cases under the rubric of personal or family privacy
and autonomy. And the historical traditions of the American people -- as
evidenced by the English common law and by the American abortion statutes
in existence both at the time of the Fourteenth Amendment's adoption and
Roe 's issuance -- do not support the view that the right to terminate one's
pregnancy is "fundamental." Thus, enactments abridging that right
need not be subjected to strict scrutiny. Pp. 8-11. |
| [41] | 3. The undue burden standard adopted by the joint opinion of JUSTICES
O'CONNOR, KENNEDY, and SOUTER has no basis in constitutional law and will
not result in the sort of simple limitation, easily applied, which the opinion
anticipates. To evaluate abortion regulations under that standard, Judges
will have to make the subjective, unguided determination whether the regulations
place "substantial obstacles" in the path of a woman seeking an
abortion, undoubtedly engendering a variety of conflicting views. The standard
presents nothing more workable than the trimester framework the joint opinion
discards, and will allow the Court, under the guise of the Constitution,
to continue to impart its own preferences on the States in the form of a
complex abortion code. Pp. 22-23. |
| [42] | 4. The correct analysis is that set forth by the plurality opinion in
Webster, supra: A woman's interest in having an abortion is a form of liberty
protected by the Due Process Clause, but States may regulate abortion procedures
in ways rationally related to a legitimate state interest. P.24. |
| [43] | 5. Section 3205's requirements are rationally related to the State's legitimate
interest in assuring that a woman's consent to an abortion be fully informed.
The requirement that a physician disclose certain information about the
abortion procedure and its risks and alternatives is not a large burden
and is clearly related to maternal health and the State's interest in informed
consent. In addition, a State may rationally decide that physicians are
better qualified than counselors to impart this information and answer questions
about the abortion alternatives' medical aspects. The requirement that information
be provided about the availability of paternal child support and state-funded
alternatives is also related to the State's informed consent interest and
furthers the State's interest in preserving unborn life. That such information
might create some uncertainty and persuade some women to forgo abortions
only demonstrates that it might make a difference and is therefore relevant
to a woman's informed choice. In light of this plurality's rejection of
Roe 's "fundamental right" approach to this subject, the Court's
contrary holding in Thornburgh is not controlling here. For the same reason,
this Court's previous holding invalidating a State's 24-hour mandatory waiting
period should not be followed. The waiting period helps ensure that a woman's
decision to abort is a well-considered one, and rationally furthers the
State's legitimate interest in maternal health and in unborn life. It may
delay, but does not prohibit, abortions; and both it and the informed consent
provisions do not apply in medical emergencies. Pp. 24-27. |
| [44] | 6. The statute's parental consent provision is entirely consistent with
this Court's previous decisions involving such requirements. See, e. g.,
Planned Parenthood Association of Kansas City, Missouri, Inc. v. Ashcroft,
462 U.S. 476. It is reasonably designed to further the State's important
and legitimate interest "in the welfare of its young citizens, whose
immaturity, inexperience, and lack of judgment may sometimes impair their
ability to exercise their rights wisely," Hodgson, supra, at 444. Pp.
27-29. |
| [45] | 7. Section 3214(a)'s requirement that abortion facilities file a report
on each abortion is constitutional because it rationally furthers the State's
legitimate interests in advancing the state of medical knowledge concerning
maternal health and prenatal life, in gathering statistical information
with respect to patients, and in ensuring compliance with other provisions
of the Act, while keeping the reports completely confidential. Public disclosure
of other reports made by facilities receiving public funds -- those identifying
the facilities and any parent, subsidiary, or affiliated organizations,
§ 3207(b), and those revealing the total number of abortions performed,
broken down by trimester, § 3214(f) -- are rationally related to the State's
legitimate interest in informing taxpayers as to who is benefiting from
public funds and what services the funds are supporting; and records relating
to the expenditure of public funds are generally available to the public
under Pennsylvania law. Pp. 34-35. |
| [46] | JUSTICE SCALIA, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE
THOMAS, concluded that a woman's decision to abort her unborn child is not
a constitutionally protected "liberty" because (1) the Constitution
says absolutely nothing about it, and (2) the longstanding traditions of
American society have permitted it to be legally proscribed. See, e. g.,
Ohio v. Akron Center for Reproductive Health, 497 U.S. , (SCALIA, J., Concurring).
The Pennsylvania statute should be upheld in its entirety under the rational
basis test. Pp. 1-3. |
| [47] | Justice O'CONNOR, JUSTICE KENNEDY, and JUSTICE SOUTER announced the judgment
of the Court and delivered the opinion of the Court with respect to Parts
I, II, III, V-A, V-C, and VI, an opinion with respect to Part V-E, in which
JUSTICE STEVENS joins, and an opinion with respect to Parts IV, V-B, and
V-D. |
| [48] | I |
| [49] | Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after
our holding that the Constitution protects a woman's right to terminate
her pregnancy in its early stages, Roe v. Wade, 410 U.S. 113 (1973), that
definition of liberty is still questioned. Joining the respondents as amicus
curiae, the United States, as it has done in five other cases in the last
decade, again asks us to overrule Roe. See Brief for Respondents 104-117;
Brief for United States as Amicus Curiae 8. |
| [50] | At issue in these cases are five provisions of the Pennsylvania Abortion
Control Act of 1982 as amended in 1988 and 1989. 18 Pa. Cons. Stat. §§ 3203-3220
(1990). Relevant portions of the Act are set forth in the appendix. (infra),
at 60. The Act requires that a woman seeking an abortion give her informed
consent prior to the abortion procedure, and specifies that she be provided
with certain information at least 24 hours before the abortion is performed.
§ 3205. For a minor to obtain an abortion, the Act requires the informed
consent of one of her parents, but provides for a judicial bypass option
if the minor does not wish to or cannot obtain a parent's consent. § 3206.
Another provision of the Act requires that, unless certain exceptions apply,
a married woman seeking an abortion must sign a statement indicating that
she has notified her husband of her intended abortion. § 3209. The Act exempts
compliance with these three requirements in the event of a "medical
emergency," which is defined in § 3203 of the Act. See §§ 3203, 3205(a),
3206(a), 3209(c). In addition to the above provisions regulating the performance
of abortions, the Act imposes certain reporting requirements on facilities
that provide abortion services. §§ 3207(b), 3214(a), 3214(f). |
| [51] | Before any of these provisions took effect, the petitioners, who are five
abortion clinics and one physician representing himself as well as a class
of physicians who provide abortion services, brought this suit seeking declaratory
and injunctive relief. Each provision was challenged as unconstitutional
on its face. The District Court entered a preliminary injunction against
the enforcement of the regulations, and, after a 3-day bench trial, held
all the provisions at issue here unconstitutional, entering a permanent
injunction against Pennsylvania's enforcement of them. 744 F. Supp. 1323
(ED Pa. 1990). The Court of Appeals for the Third Circuit affirmed in part
and reversed in part, upholding all of the regulations except for the husband
notification requirement. 947 F.2d 682 (1991). We granted certiorari. 502
U.S. , 112 S. Ct. 855, 116 L. Ed. 2d 764 (1992). |
| [52] | The Court of Appeals found it necessary to follow an elaborate course
of reasoning even to identify the first premise to use to determine whether
the statute enacted by Pennsylvania meets constitutional standards. See
947 F.2d, at 687-698. And at oral argument in this Court, the attorney for
the parties challenging the statute took the position that none of the enactments
can be upheld without overruling Roe v. Wade. Tr. of Oral Arg. 5-6. We disagree
with that analysis; but we acknowledge that our decisions after Roe cast
doubt upon the meaning and reach of its holding. Further, the CHIEF JUSTICE
admits that he would overrule the central holding of Roe and adopt the rational
relationship test as the sole criterion of constitutionality. See post,
at . State and federal courts as well as legislatures throughout the Union
must have guidance as they seek to address this subject in conformance with
the Constitution. Given these premises, we find it imperative to review
once more the principles that define the rights of the woman and the legitimate
authority of the State respecting the termination of pregnancies by abortion
procedures. |
| [53] | After considering the fundamental constitutional questions resolved by
Roe, principles of institutional integrity, and the rule of stare decisis,
we are led to conclude this: the essential holding of Roe v. Wade should
be retained and once again reaffirmed. |
| [54] | It must be stated at the outset and with clarity that Roe 's essential
holding, the holding we reaffirm, has three parts. First is a recognition
of the right of the woman to choose to have an abortion before viability
and to obtain it without undue interference from the State. Before viability,
the State's interests are not strong enough to support a prohibition of
abortion or the imposition of a substantial obstacle to the woman's effective
right to elect the procedure. Second is a confirmation of the State's power
to restrict abortions after fetal viability, if the law contains exceptions
for pregnancies which endanger a woman's life or health. And third is the
principle that the State has legitimate interests from the outset of the
pregnancy in protecting the health of the woman and the life of the fetus
that may become a child. These principles do not contradict one another;
and we adhere to each. |
| [55] | II |
| [56] | Constitutional protection of the woman's decision to terminate her pregnancy
derives from the Due Process Clause of the Fourteenth Amendment. It declares
that no State shall "deprive any person of life, liberty, or property,
without due process of law." The controlling word in the case before
us is "liberty." Although a literal reading of the Clause might
suggest that it governs only the procedures by which a State may deprive
persons of liberty, for at least 105 years, at least since Mugler v. Kansas,
123 U.S. 623, 660-661 (1887), the Clause has been understood to contain
a substantive component as well, one "barring certain government actions
regardless of the fairness of the procedures used to implement them."
Daniels v. Williams, 474 U.S. 327, 331 (1986). As Justice Brandeis (joined
by Justice Holmes) observed, "despite arguments to the contrary which
had seemed to me persuasive, it is settled that the due process clause of
the Fourteenth Amendment applies to matters of substantive law as well as
to matters of procedure. Thus all fundamental rights comprised within the
term liberty are protected by the Federal Constitution from invasion by
the States." Whitney v. California, 274 U.S. 357, 373 (1927) (Brandeis,
J., Concurring). "The guaranties of due process, though having their
roots in Magna Carta's ' per legem terrae ' and considered as procedural
safeguards 'against executive usurpation and tyranny,' have in this country
'become bulwarks also against arbitrary legislation.'" Poe v. Ullman,
367 U.S. 497, 541 (1961) (Harlan, J., Dissenting from dismissal on jurisdictional
grounds) (quoting Hurtado v. California, 110 U.S. 516, 532 (1884)). |
| [57] | The most familiar of the substantive liberties protected by the Fourteenth
Amendment are those recognized by the Bill of Rights. We have held that
the Due Process Clause of the Fourteenth Amendment incorporates most of
the Bill of Rights against the States. See, e.g., Duncan v. Louisiana, 391
U.S. 145, 147-148 (1968). It is tempting, as a means of curbing the discretion
of federal Judges, to suppose that liberty encompasses no more than those
rights already guaranteed to the individual against federal interference
by the express provisions of the first eight amendments to the Constitution.
See Adamson v. California, 332 U.S. 46, 68-92 (1947) (Black, J., Dissenting).
But of course this Court has never accepted that view. |
| [58] | It is also tempting, for the same reason, to suppose that the Due Process
Clause protects only those practices, defined at the most specific level,
that were protected against government interference by other rules of law
when the Fourteenth Amendment was ratified. See Michael H. v. Gerald D.,
491 U.S. 110, 127-128, n. 6 (1989) (opinion of SCALIA, J.). But such a view
would be inconsistent with our law. It is a promise of the Constitution
that there is a realm of personal liberty which the government may not enter.
We have vindicated this principle before. Marriage is mentioned nowhere
in the Bill of Rights and interracial marriage was illegal in most States
in the 19th century, but the Court was no doubt correct in finding it to
be an aspect of liberty protected against state interference by the substantive
component of the Due Process Clause in Loving v. Virginia, 388 U.S. 1, 12
(1967) (relying, in an opinion for eight Justices, on the Due Process Clause).
Similar examples may be found in Turner v. Safley, 482 U.S. 78, 94-99 (1987);
in Carey v. Population Services International, 431 U.S. 678, 684-686 (1977);
in Griswold v. Connecticut, 381 U.S. 479, 481-482 (1965), as well as in
the separate opinions of a majority of the Members of the Court in that
case, id., at 486-488 (Goldberg J., joined by Warren, C. J., and Brennan,
J., Concurring) (expressly relying on due process), id., at 500-502 (Harlan,
J., Concurring in judgment) (same), id., at 502-507 (WHITE, J., Concurring
in judgment) (same); in Pierce v. Society of Sisters, 268 U.S. 510, 534-535
(1925); and in Meyer v. Nebraska, 262 U.S. 390, 399-403 (1923). |
| [59] | Neither the Bill of Rights nor the specific practices of States at the
time of the adoption of the Fourteenth Amendment marks the outer limits
of the substantive sphere of liberty which the Fourteenth Amendment protects.
See U.S. Const., Amend. 9. As the second Justice Harlan recognized: |
| [60] | "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. This liberty' is not a series of
isolated points pricked out in terms of the taking of property; the freedom
of speech, press, and religion; the right to keep and bear arms; the freedom
from unreasonable searches and seizures; and so on. It is a rational continuum
which, broadly speaking, includes a freedom from all substantial arbitrary
impositions and purposeless restraints, . . . and which also recognizes,
what a reasonable and sensitive judgment must, that certain interests require
particularly careful scrutiny of the state needs asserted to justify their
abridgment." Poe v. Ullman, (supra) , at 543 (Harlan, J., Dissenting
from dismissal on jurisdictional grounds). |
| [61] | Justice Harlan wrote these words in addressing an issue the full Court
did not reach in Poe v. Ullman, but the Court adopted his position four
Terms later in Griswold v. Connecticut, supra. In Griswold, we held that
the Constitution does not permit a State to forbid a married couple to use
contraceptives. That same freedom was later guaranteed, under the Equal
Protection Clause, for unmarried couples. See Eisenstadt v. Baird, 405 U.S.
438 (1972). Constitutional protection was extended to the sale and distribution
of contraceptives in Carey v. Population Services International, supra.
It is settled now, as it was when the Court heard arguments in Roe v. Wade,
that the Constitution places limits on a State's right to interfere with
a person's most basic decisions about family and parenthood, see Carey v.
Population Services International, (supra) ; Moore v. East Cleveland, 431
U.S. 494 (1977); Eisenstadt v. Baird, (supra) ; Loving v. Virginia, (supra)
; Griswold v. Connecticut, (supra) ; Skinner v. Oklahoma ex rel. Williamson,
316 U.S. 535 (1942); Pierce v. Society of Sisters, (supra) ; Meyer v. Nebraska,
(supra) , as well as bodily integrity. See, e.g., Washington v. Harper,
494 U.S. 210, 221-222 (1990); Winston v. Lee, 470 U.S. 753 (1985); Rochin
v. California, 342 U.S. 165 (1952). |
| [62] | The inescapable fact is that adjudication of substantive due process claims
may call upon the Court in interpreting the Constitution to exercise that
same capacity which by tradition courts always have exercised: reasoned
judgment. Its boundaries are not susceptible of expression as a simple rule.
That does not mean we are free to invalidate state policy choices with which
we disagree; yet neither does it permit us to shrink from the duties of
our office. As Justice Harlan observed: |
| [63] | "Due process has not been reduced to any formula; its content cannot
be determined by reference to any code. The best that can be said is that
through the course of this Court's decisions it has represented the balance
which our Nation, built upon postulates of respect for the liberty of the
individual, has struck between that liberty and the demands of organized
society. If the supplying of content to this Constitutional concept has
of necessity been a rational process, it certainly has not been one where
Judges have felt free to roam where unguided speculation might take them.
The balance of which I speak is the balance struck by this country, having
regard to what history teaches are the traditions from which it developed
as well as the traditions from which it broke. That tradition is a living
thing. A decision of this Court which radically departs from it could not
long survive, while a decision which builds on what has survived is likely
to be sound. No formula could serve as a substitute, in this area, for judgment
and restraint." Poe v. Ullman, 367 U.S., at 542 (Harlan, J., Dissenting
from dismissal on jurisdictional grounds). |
| [64] | See also Rochin v. California, supra, at 171-172 (Frankfurter, J., writing
for the Court) ("To believe that this judicial exercise of judgment
could be avoided by freezing 'due process of law' at some fixed stage of
time or thought is to suggest that the most important aspect of constitutional
adjudication is a function for inanimate machines and not for Judges"). |
| [65] | Men and women of good conscience can disagree, and we suppose some always
shall disagree, about the profound moral and spiritual implications of terminating
a pregnancy, even in its earliest stage. Some of us as individuals find
abortion offensive to our most basic principles of morality, but that cannot
control our decision. Our obligation is to define the liberty of all, not
to mandate our own moral code. The underlying constitutional issue is whether
the State can resolve these philosophic questions in such a definitive way
that a woman lacks all choice in the matter, except perhaps in those rare
circumstances in which the pregnancy is itself a danger to her own life
or health, or is the result of rape or incest. |
| [66] | It is conventional constitutional doctrine that where reasonable people
disagree the government can adopt one position or the other. See, e.g.,
Ferguson v. Skrupa, 372 U.S. 726 (1963); Williamson v. Lee Optical of Oklahoma,
Inc., 348 U.S. 483 (1955). That theorem, however, assumes a state of affairs
in which the choice does not intrude upon a protected liberty. Thus, while
some people might disagree about whether or not the flag should be saluted,
or disagree about the proposition that it may not be defiled, we have ruled
that a State may not compel or enforce one view or the other. See West Virginia
State Bd. of Education v. Barnette, 319 U.S. 624 (1943); Texas v. Johnson,
491 U.S. 397 (1989). |
| [67] | Our law affords constitutional protection to personal decisions relating
to marriage, procreation, contraception, family relationships, child rearing,
and education. Carey v. Population Services International, 431 U.S., at
685. Our cases recognize "the right of the individual, married or single,
to be free from unwarranted governmental intrusion into matters so fundamentally
affecting a person as the decision whether to bear or beget a child."
Eisenstadt v. Baird, supra, at 453 (emphasis in original). Our precedents
"have respected the private realm of family life which the state cannot
enter." Prince v. Massachusetts, 321 U.S. 158, 166 (1944). These matters,
involving the most intimate and personal choices a person may make in a
lifetime, choices central to personal dignity and autonomy, are central
to the liberty protected by the Fourteenth Amendment. At the heart of liberty
is the right to define one's own concept of existence, of meaning, of the
universe, and of the mystery of human life. Beliefs about these matters
could not define the attributes of personhood were they formed under compulsion
of the State. |
| [68] | These considerations begin our analysis of the woman's interest in terminating
her pregnancy but cannot end it, for this reason: though the abortion decision
may originate within the zone of conscience and belief, it is more than
a philosophic exercise. Abortion is a unique act. It is an act fraught with
consequences for others: for the woman who must live with the implications
of her decision; for the persons who perform and assist in the procedure;
for the spouse, family, and society which must confront the knowledge that
these procedures exist, procedures some deem nothing short of an act of
violence against innocent human life; and, depending on one's beliefs, for
the life or potential life that is aborted. Though abortion is conduct,
it does not follow that the State is entitled to proscribe it in all instances.
That is because the liberty of the woman is at stake in a sense unique to
the human condition and so unique to the law. The mother who carries a child
to full term is subject to anxieties, to physical constraints, to pain that
only she must bear. That these sacrifices have from the beginning of the
human race been endured by woman with a pride that ennobles her in the eyes
of others and gives to the infant a bond of love cannot alone be grounds
for the State to insist she make the sacrifice. Her suffering is too intimate
and personal for the State to insist, without more, upon its own vision
of the woman's role, however dominant that vision has been in the course
of our history and our culture. The destiny of the woman must be shaped
to a large extent on her own conception of her spiritual imperatives and
her place in society. |
| [69] | It should be recognized, moreover, that in some critical respects the
abortion decision is of the same character as the decision to use contraception,
to which Griswold v. Connecticut, Eisenstadt v. Baird, and Carey v. Population
Services International, afford constitutional protection. We have no doubt
as to the correctness of those decisions. They support the reasoning in
Roe relating to the woman's liberty because they involve personal decisions
concerning not only the meaning of procreation but also human responsibility
and respect for it. As with abortion, reasonable people will have differences
of opinion about these matters. One view is based on such reverence for
the wonder of creation that any pregnancy ought to be welcomed and carried
to full term no matter how difficult it will be to provide for the child
and ensure its well-being. Another is that the inability to provide for
the nurture and care of the infant is a cruelty to the child and an anguish
to the parent. These are intimate views with infinite variations, and their
deep, personal character underlay our decisions in Griswold, Eisenstadt,
and Carey. The same concerns are present when the woman confronts the reality
that, perhaps despite her attempts to avoid it, she has become pregnant. |
| [70] | It was this dimension of personal liberty that Roe sought to protect,
and its holding invoked the reasoning and the tradition of the precedents
we have discussed, granting protection to substantive liberties of the person.
Roe was, of course, an extension of those cases and, as the decision itself
indicated, the separate States could act in some degree to further their
own legitimate interests in protecting pre-natal life. The extent to which
the legislatures of the States might act to outweigh the interests of the
woman in choosing to terminate her pregnancy was a subject of debate both
in Roe itself and in decisions following it. |
| [71] | While we appreciate the weight of the arguments made on behalf of the
State in the case before us, arguments which in their ultimate formulation
conclude that Roe should be overruled, the reservations any of us may have
in reaffirming the central holding of Roe are outweighed by the explication
of individual liberty we have given combined with the force of stare decisis.
We turn now to that doctrine. |
| [72] | III |
| [73] | A |
| [74] | The obligation to follow precedent begins with necessity, and a contrary
necessity marks its outer limit. With Cardozo, we recognize that no judicial
system could do society's work if it eyed each issue afresh in every case
that raised it. See B. Cardozo, The Nature of the Judicial Process 149 (1921).
Indeed, the very concept of the rule of law underlying our own Constitution
requires such continuity over time that a respect for precedent is, by definition,
indispensable. See Powell, Stare Decisis and Judicial Restraint, 1991 Journal
of Supreme Court History 13, 16. At the other extreme, a different necessity
would make itself felt if a prior judicial ruling should come to be seen
so clearly as error that its enforcement was for that very reason doomed. |
| [75] | Even when the decision to overrule a prior case is not, as in the rare,
latter instance, virtually foreordained, it is common wisdom that the rule
of stare decisis is not an "inexorable command," and certainly
it is not such in every constitutional case, see Burnet v. Coronado Oil
Gas Co., 285 U.S. 393, 405-411 (1932) (Brandeis, J., Dissenting). See also
Payne v. Tennessee, 501 U.S. , , 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991)
(slip op., at ) (SOUTER, J., joined by KENNEDY, J., Concurring); Arizona
v. Rumsey, 467 U.S. 203, 212 (1984). Rather, when this Court reexamines
a prior holding, its judgment is customarily informed by a series of prudential
and pragmatic considerations designed to test the consistency of overruling
a prior decision with the ideal of the rule of law, and to gauge the respective
costs of reaffirming and overruling a prior case. Thus, for example, we
may ask whether the rule has proved to be intolerable simply in defying
practical workability, Swift & Co. v. Wickham, 382 U.S. 111, 116 (1965);
whether the rule is subject to a kind of reliance that would lend a special
hardship to the consequences of overruling and add inequity to the cost
of repudiation, e. g., United States v. Title Ins. & Trust Co., 265
U.S. 472, 486 (1924); whether related principles of law have so far developed
as to have left the old rule no more than a remnant of abandoned doctrine,
see Patterson v. McLean Credit Union, 491 U.S. 164, 173-174 (1989); or whether
facts have so changed or come to be seen so differently, as to have robbed
the old rule of significant application or justification, e.g., Burnet,
(supra) , at 412 (Brandeis, J., Dissenting). |
| [76] | So in this case we may inquire whether Roe 's central rule has been found
unworkable; whether the rule's limitation on state power could be removed
without serious inequity to those who have relied upon it or significant
damage to the stability of the society governed by the rule in question;
whether the law's growth in the intervening years has left Roe's central
rule a doctrinal anachronism discounted by society; and whether Roe 's premises
of fact have so far changed in the ensuing two decades as to render its
central holding somehow irrelevant or unjustifiable in dealing with the
issue it addressed. |
| [77] | 1 |
| [78] | Although Roe has engendered opposition, it has in no sense proven "unworkable,"
see Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528,
546 (1985), representing as it does a simple limitation beyond which a state
law is unenforceable. While Roe has, of course, required judicial assessment
of state laws affecting the exercise of the choice guaranteed against government
infringement, and although the need for such review will remain as a consequence
of today's decision, the required determinations fall within judicial competence. |
| [79] | 2 |
| [80] | The inquiry into reliance counts the cost of a rule's repudiation as it
would fall on those who have relied reasonably on the rule's continued application.
Since the classic case for weighing reliance heavily in favor of following
the earlier rule occurs in the commercial context, see Payne v. Tennessee,
supra, at (slip op., at ), where advance planning of great precision is
most obviously a necessity, it is no cause for surprise that some would
find no reliance worthy of consideration in support of Roe. |
| [81] | While neither respondents nor their amici in so many words deny that the
abortion right invites some reliance prior to its actual exercise, one can
readily imagine an argument stressing the dissimilarity of this case to
one involving property or contract. Abortion is customarily chosen as an
unplanned response to the consequence of unplanned activity or to the failure
of conventional birth control, and except on the assumption that no intercourse
would have occurred but for Roe 's holding, such behavior may appear to
justify no reliance claim. Even if reliance could be claimed on that unrealistic
assumption, the argument might run, any reliance interest would be de minimis.
This argument would be premised on the hypothesis that reproductive planning
could take virtually immediate account of any sudden restoration of state
authority to ban abortions. |
| [82] | To eliminate the issue of reliance that easily, however, one would need
to limit cognizable reliance to specific instances of sexual activity. But
to do this would be simply to refuse to face the fact that for two decades
of economic and social developments, people have organized intimate relationships
and made choices that define their views of themselves and their places
in society, in reliance on the availability of abortion in the event that
contraception should fail. The ability of women to participate equally in
the economic and social life of the Nation has been facilitated by their
ability to control their reproductive lives. See, e.g., R. Petchesky, Abortion
and Woman's Choice 109, 133, n. 7 (rev. ed. 1990). The Constitution serves
human values, and while the effect of reliance on Roe cannot be exactly
measured, neither can the certain cost of overruling Roe for people who
have ordered their thinking and living around that case be dismissed. |
| [83] | 3 |
| [84] | No evolution of legal principle has left Roe 's doctrinal footings weaker
than they were in 1973. No development of constitutional law since the case
was decided has implicitly or explicitly left Roe behind as a mere survivor
of obsolete constitutional thinking. |
| [85] | It will be recognized, of course, that Roe stands at an intersection of
two lines of decisions, but in whichever doctrinal category one reads the
case, the result for present purposes will be the same. The Roe Court itself
placed its holding in the succession of cases most prominently exemplified
by Griswold v. Connecticut, 381 U.S. 479 (1965), see Roe, 410 U.S., at 152-153.
When it is so seen, Roe is clearly in no jeopardy, since subsequent constitutional
developments have neither disturbed, nor do they threaten to diminish, the
scope of recognized protection accorded to the liberty relating to intimate
relationships, the family, and decisions about whether or not to beget or
bear a child. See, e.g., Carey v. Population Services International, 431
U.S. 678 (1977); Moore v. East Cleveland, 431 U.S. 494 (1977). |
| [86] | Roe, however, may be seen not only as an exemplar of Griswold liberty
but as a rule (whether or not mistaken) of personal autonomy and bodily
integrity, with doctrinal affinity to cases recognizing limits on governmental
power to mandate medical treatment or to bar its rejection. If so, our cases
since Roe accord with Roe 's view that a State's interest in the protection
of life falls short of justifying any plenary override of individual liberty
claims. Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 278
(1990); Cf., e.g., Riggins v. Nevada, 504 U.S. , , 112 S. Ct. 2130, 119
L. Ed. 2d 351 (1992) (slip. op., at 7); Washington v. Harper, 494 U.S. 210
(1990); see also, e.g., Rochin v. California, 342 U.S. 165 (1952); Jacobson
v. Massachusetts, 197 U.S. 11, 24-30 (1905). |
| [87] | Finally, one could classify Roe as sui generis. If the case is so viewed,
then there clearly has been no erosion of its central determination. The
original holding resting on the concurrence of seven Members of the Court
in 1973 was expressly affirmed by a majority of six in 1983, see Akron v.
Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983) (Akron I),
and by a majority of five in 1986, see Thornburgh v. American College of
Obstetricians and Gynecologists, 476 U.S. 747 (1986), expressing adherence
to the constitutional ruling despite legislative efforts in some States
to test its limits. More recently, in Webster v. Reproductive Health Services,
492 U.S. 490 (1989), although two of the present authors questioned the
trimester framework in a way consistent with our judgment today, see id.,
at 518 (REHNQUIST C. J., joined by WHITE, and KENNEDY, JJ.); id., at 529
(O'CONNOR, J., Concurring in part and Concurring in judgment), a majority
of the Court either decided to reaffirm or declined to address the constitutional
validity of the central holding of Roe. See Webster, 492 U.S., at 521 (REHNQUIST,
C. J., joined by WHITE and KENNEDY, JJ.); id., at 525-526 (O'CONNOR, J.,
Concurring in part and Concurring in judgment); id., at 537, 553 (BLACKMUN,
J., joined by Brennan and Marshall, JJ., Concurring in part and Dissenting
in part); id., at 561-563 (STEVENS, J., Concurring in part and Dissenting
in part). |
| [88] | Nor will courts building upon Roe be likely to hand down erroneous decisions
as a consequence. Even on the assumption that the central holding of Roe
was in error, that error would go only to the strength of the state interest
in fetal protection, not to the recognition afforded by the Constitution
to the woman's liberty. The latter aspect of the decision fits comfortably
within the framework of the Court's prior decisions including Skinner v.
Oklahoma ex rel. Williamson, 316 U.S. 535 (1942), Griswold, (supra) , Loving
v. Virginia, 388 U.S. 1 (1967), and Eisenstadt v. Baird, 405 U.S. 438 (1972),
the holdings of which are "not a series of isolated points," but
mark a "rational continuum." Poe v. Ullman, 367 U.S., at 543 (1961)
(Harlan, J., Dissenting). As we described in Carey v. Population Services
International, supra, the liberty which encompasses those decisions |
| [89] | "includes 'the interest in independence in making certain kinds of
important decisions.' While the outer limits of this aspect of [protected
liberty] have not been marked by the Court, it is clear that among the decisions
that an individual may make without unjustified government interference
are personal decisions 'relating to marriage, procreation, contraception,
family relationships, and child rearing and education.'" Id., at 684-685
(citations omitted). |
| [90] | The soundness of this prong of the Roe analysis is apparent from a consideration
of the alternative. If indeed the woman's interest in deciding whether to
bear and beget a child had not been recognized as in Roe, the State might
as readily restrict a woman's right to choose to carry a pregnancy to term
as to terminate it, to further asserted state interests in population control,
or eugenics, for example. Yet Roe has been sensibly relied upon to counter
any such suggestions. E.g., Arnold v. Board of Education of Escambia County,
Ala., 880 F.2d 305, 311 (CA11 1989) (relying upon Roe and concluding that
government officials violate the Constitution by coercing a minor to have
an abortion); Avery v. County of Burke, 660 F.2d 111, 115 (CA4 1981) (county
agency inducing teenage girl to undergo unwanted sterilization on the basis
of misrepresentation that she had sickle cell trait); see also In re Quinlan,
70 N.J. 10, 355 A. 2d 647, cert. denied sub nom. Garger v. New Jersey, 429
U.S. 922 (1976) (relying on Roe in finding a right to terminate medical
treatment). In any event, because Roe 's scope is confined by the fact of
its concern with postconception potential life, a concern otherwise likely
to be implicated only by some forms of contraception protected independently
under Griswold and later cases, any error in Roe is unlikely to have serious
ramifications in future cases. |
| [91] | 4 |
| [92] | We have seen how time has overtaken some of Roe 's factual assumptions:
advances in maternal health care allow for abortions safe to the mother
later in pregnancy than was true in 1973, see Akron I, supra, at 429, n.
11, and advances in neonatal care have advanced viability to a point somewhat
earlier. Compare Roe, 410 U.S., at 160, with Webster, supra, at 515-516
(opinion of REHNQUIST, C.J.); see Akron I, (supra) , at 457, and n. 5 (O'CONNOR,
J., Dissenting). But these facts go only to the scheme of time limits on
the realization of competing interests, and the divergences from the factual
premises of 1973 have no bearing on the validity of Roe's central holding,
that viability marks the earliest point at which the State's interest in
fetal life is constitutionally adequate to justify a legislative ban on
nontherapeutic abortions. The soundness or unsoundness of that constitutional
judgment in no sense turns on whether viability occurs at approximately
28 weeks, as was usual at the time of Roe, at 23 to 24 weeks, as it sometimes
does today, or at some moment even slightly earlier in pregnancy, as it
may if fetal respiratory capacity can somehow be enhanced in the future.
Whenever it may occur, the attainment of viability may continue to serve
as the critical fact, just as it has done since Roe was decided; which is
to say that no change in Roe 's factual underpinning has left its central
holding obsolete, and none supports an argument for overruling it. |
| [93] | 5 |
| [94] | The sum of the precedential inquiry to this point shows Roe 's underpinnings
unweakened in any way affecting its central holding. While it has engendered
disapproval, it has not been unworkable. An entire generation has come of
age free to assume Roe 's concept of liberty in defining the capacity of
women to act in society, and to make reproductive decisions; no erosion
of principle going to liberty or personal autonomy has left Roe 's central
holding a doctrinal remnant; Roe portends no developments at odds with other
precedent for the analysis of personal liberty; and no changes of fact have
rendered viability more or less appropriate as the point at which the balance
of interests tips. Within the bounds of normal stare decisis analysis, then,
and subject to the considerations on which it customarily turns, the stronger
argument is for affirming Roe 's central holding, with whatever degree of
personal reluctance any of us may have, not for overruling it. |
| [95] | B |
| [96] | In a less significant case, stare decisis analysis could, and would, stop
at the point we have reached. But the sustained and widespread debate Roe
has provoked calls for some comparison between that case and others of comparable
dimension that have responded to national controversies and taken on the
impress of the controversies addressed. Only two such decisional lines from
the past century present themselves for examination, and in each instance
the result reached by the Court accorded with the principles we apply today. |
| [97] | The first example is that line of cases identified with Lochner v. New
York, 198 U.S. 45 (1905), which imposed substantive limitations on legislation
limiting economic autonomy in favor of health and welfare regulation, adopting,
in Justice Holmes' view, the theory of laissez-faire. Id., at 75 (Holmes,
J., Dissenting). The Lochner decisions were exemplified by Adkins v. Children's
Hospital of D.C., 261 U.S. 525 (1923), in which this Court held it to be
an infringement of constitutionally protected liberty of contract to require
the employers of adult women to satisfy minimum wage standards. Fourteen
years later, West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), signaled
the demise of Lochner by overruling Adkins. In the meantime, the Depression
had come and, with it, the lesson that seemed unmistakable to most people
by 1937, that the interpretation of contractual freedom protected in Adkins
rested on fundamentally false factual assumptions about the capacity of
a relatively unregulated market to satisfy minimal levels of human welfare.
See West Coast Hotel Co., (supra) , at 399. As Justice Jackson wrote of
the constitutional crisis of 1937 shortly before he came on the bench, "The
older world of laissez faire was recognized everywhere outside the Court
to be dead." R. Jackson, The Struggle for Judicial Supremacy 85 (1941).
The facts upon which the earlier case had premised a constitutional resolution
of social controversy had proved to be untrue, and history's demonstration
of their untruth not only justified but required the new choice of constitutional
principle that West Coast Hotel announced. Of course, it was true that the
Court lost something by its misperception, or its lack of prescience, and
the Court-packing crisis only magnified the loss; but the clear demonstration
that the facts of economic life were different from those previously assumed
warranted the repudiation of the old law. |
| [98] | The second comparison that 20th century history invites is with the cases
employing the separate-but-equal rule for applying the Fourteenth Amendment's
equal protection guarantee. They began with Plessy v. Ferguson, 163 U.S.
537 (1896), holding that legislatively mandated racial segregation in public
transportation works no denial of equal protection, rejecting the argument
that racial separation enforced by the legal machinery of American society
treats the black race as inferior. The Plessy Court considered "the
underlying fallacy of the plaintiff's argument to consist in the assumption
that the enforced separation of the two races stamps the colored race with
a badge of inferiority. If this be so, it is not by reason of anything found
in the act, but solely because the colored race chooses to put that construction
upon it." Id., at at 551. Whether, as a matter of historical fact,
the Justices in the Plessy majority believed this or not, see id., at 557,
562 (Harlan, J., Dissenting), this understanding of the implication of segregation
was the stated justification for the Court's opinion. But this understanding
of the facts and the rule it was stated to justify were repudiated in Brown
v. Board of Education, 347 U.S. 483 (1954). As one commentator observed,
the question before the Court in Brown was "whether discrimination
inheres in that segregation which is imposed by law in the twentieth century
in certain specific states in the American Union. And that question has
meaning and can find an answer only on the ground of history and of common
knowledge about the facts of life in the times and places aforesaid."
Black, The Lawfulness of the Segregation Decisions, 69 Yale L. J. 421, 427
(1960). |
| [99] | The Court in Brown addressed these facts of life by observing that whatever
may have been the understanding in Plessy 's time of the power of segregation
to stigmatize those who were segregated with a "badge of inferiority,"
it was clear by 1954 that legally sanctioned segregation had just such an
effect, to the point that racially separate public educational facilities
were deemed inherently unequal. 374 U.S., at 494-495. Society's understanding
of the facts upon which a constitutional ruling was sought in 1954 was thus
fundamentally different from the basis claimed for the decision in 1896.
While we think Plessy was wrong the day it was decided, see Plessy, (supra)
, at 552-564 (Harlan, J., Dissenting), we must also recognize that the Plessy
Court's explanation for its decision was so clearly at odds with the facts
apparent to the Court in 1954 that the decision to re-examine Plessy was
on this ground alone not only justified but required. |
| [100] | West Coast Hotel and Brown each rested on facts, or an understanding of
facts, changed from those which furnished the claimed justifications for
the earlier constitutional resolutions. Each case was comprehensible as
the Court's response to facts that the country could understand, or had
come to understand already, but which the Court of an earlier day, as its
own declarations disclosed, had not been able to perceive. As the decisions
were thus comprehensible they were also defensible, not merely as the victories
of one doctrinal school over another by dint of numbers (victories though
they were), but as applications of constitutional principle to facts as
they had not been seen by the Court before. In constitutional adjudication
as elsewhere in life, changed circumstances may impose new obligations,
and the thoughtful part of the Nation could accept each decision to overrule
a prior case as a response to the Court's constitutional duty. |
| [101] | Because the case before us presents no such occasion it could be seen
as no such response. Because neither the factual underpinnings of Roe 's
central holding nor our understanding of it has changed (and because no
other indication of weakened precedent has been shown) the Court could not
pretend to be reexamining the prior law with any justification beyond a
present doctrinal Disposition to come out differently from the Court of
1973. To overrule prior law for no other reason than that would run counter
to the view repeated in our cases, that a decision to overrule should rest
on some special reason over and above the belief that a prior case was wrongly
decided. See , e.g., Mitchell v. W.T. Grant, 416 U.S. 600, 636 (1974) (Stewart,
J., Dissenting) ("A basic change in the law upon a ground no firmer
than a change in our membership invites the popular misconception that this
institution is little different from the two political branches of the Government.
No misconception could do more lasting injury to this Court and to the system
of law which it is our abiding mission to serve"); Mapp v. Ohio, 367
U.S. 643, 677 (1961) (Harlan, J., Dissenting). |
| [102] | C |
| [103] | The examination of the conditions justifying the repudiation of Adkins
by West Coast Hotel and Plessy by Brown is enough to suggest the terrible
price that would have been paid if the Court had not overruled as it did.
In the present case, however, as our analysis to this point makes clear,
the terrible price would be paid for overruling. Our analysis would not
be complete, however, without explaining why overruling Roe 's central holding
would not only reach an unjustifiable result under principles of stare decisis,
but would seriously weaken the Court's capacity to exercise the judicial
power and to function as the Supreme Court of a Nation dedicated to the
rule of law. To understand why this would be so it is necessary to understand
the source of this Court's authority, the conditions necessary for its preservation,
and its relationship to the country's understanding of itself as a constitutional
Republic. |
| [104] | The root of American governmental power is revealed most clearly in the
instance of the power conferred by the Constitution upon the Judiciary of
the United States and specifically upon this Court. As Americans of each
succeeding generation are rightly told, the Court cannot buy support for
its decisions by spending money and, except to a minor degree, it cannot
independently coerce obedience to its decrees. The Court's power lies, rather,
in its legitimacy, a product of substance and perception that shows itself
in the people's acceptance of the Judiciary as fit to determine what the
Nation's law means and to declare what it demands. |
| [105] | The underlying substance of this legitimacy is of course the warrant for
the Court's decisions in the Constitution and the lesser sources of legal
principle on which the Court draws. That substance is expressed in the Court's
opinions, and our contemporary understanding is such that a decision without
principled justification would be no judicial act at all. But even when
justification is furnished by apposite legal principle, something more is
required. Because not every conscientious claim of principled justification
will be accepted as such, the justification claimed must be beyond dispute.
The Court must take care to speak and act in ways that allow people to accept
its decisions on the terms the Court claims for them, as grounded truly
in principle, not as compromises with social and political pressures having,
as such, no bearing on the principled choices that the Court is obliged
to make. Thus, the Court's legitimacy depends on making legally principled
decisions under circumstances in which their principled character is sufficiently
plausible to be accepted by the Nation. |
| [106] | The need for principled action to be perceived as such is implicated to
some degree whenever this, or any other appellate court, overrules a prior
case. This is not to say, of course, that this Court cannot give a perfectly
satisfactory explanation in most cases. People understand that some of the
Constitution's language is hard to fathom and that the Court's Justices
are sometimes able to perceive significant facts or to understand principles
of law that eluded their predecessors and that justify departures from existing
decisions. However upsetting it may be to those most directly affected when
one judicially derived rule replaces another, the country can accept some
correction of error without necessarily questioning the legitimacy of the
Court. |
| [107] | In two circumstances, however, the Court would almost certainly fail to
receive the benefit of the doubt in overruling prior cases. There is, first,
a point beyond which frequent overruling would overtax the country's belief
in the Court's good faith. Despite the variety of reasons that may inform
and justify a decision to overrule, we cannot forget that such a decision
is usually perceived (and perceived correctly) as, at the least, a statement
that a prior decision was wrong. There is a limit to the amount of error
that can plausibly be imputed to prior courts. If that limit should be exceeded,
disturbance of prior rulings would be taken as evidence that justifiable
reexamination of principle had given way to drives for particular results
in the short term. The legitimacy of the Court would fade with the frequency
of its vacillation. |
| [108] | That first circumstance can be described as hypothetical; the second is
to the point here and now. Where, in the performance of its judicial duties,
the Court decides a case in such a way as to resolve the sort of intensely
divisive controversy reflected in Roe and those rare, comparable cases,
its decision has a dimension that the resolution of the normal case does
not carry. It is the dimension present whenever the Court's interpretation
of the Constitution calls the contending sides of a national controversy
to end their national division by accepting a common mandate rooted in the
Constitution. |
| [109] | The Court is not asked to do this very often, having thus addressed the
Nation only twice in our lifetime, in the decisions of Brown and Roe. But
when the Court does act in this way, its decision requires an equally rare
precedential force to counter the inevitable efforts to overturn it and
to thwart its implementation. Some of those efforts may be mere unprincipled
emotional reactions; others may proceed from principles worthy of profound
respect. But whatever the premises of opposition may be, only the most convincing
justification under accepted standards of precedent could suffice to demonstrate
that a later decision overruling the first was anything but a surrender
to political pressure, and an unjustified repudiation of the principle on
which the Court staked its authority in the first instance. So to overrule
under fire in the absence of the most compelling reason to re-examine a
watershed decision would subvert the Court's legitimacy beyond any serious
question. Cf. Brown v. Board of Education, 349 U.S. 294, 300 (1955) (Brown
II) ("It should go without saying that the vitality of the constitutional
principles [announced in Brown v. Board of Education, 347 U.S. 483 (1954),]
cannot be allowed to yield simply because of disagreement with them"). |
| [110] | The country's loss of confidence in the judiciary would be underscored
by an equally certain and equally reasonable condemnation for another failing
in overruling unnecessarily and under pressure. Some cost will be paid by
anyone who approves or implements a constitutional decision where it is
unpopular, or who refuses to work to undermine the decision or to force
its reversal. The price may be criticism or ostracism, or it may be violence.
An extra price will be paid by those who themselves disapprove of the decision's
results when viewed outside of constitutional terms, but who nevertheless
struggle to accept it, because they respect the rule of law. To all those
who will be so tested by following, the Court implicitly undertakes to remain
steadfast, lest in the end a price be paid for nothing. The promise of constancy,
once given, binds its maker for as long as the power to stand by the decision
survives and the understanding of the issue has not changed so fundamentally
as to render the commitment obsolete. From the obligation of this promise
this Court cannot and should not assume any exemption when duty requires
it to decide a case in conformance with the Constitution. A willing breach
of it would be nothing less than a breach of faith, and no Court that broke
its faith with the people could sensibly expect credit for principle in
the decision by which it did that. |
| [111] | It is true that diminished legitimacy may be restored, but only slowly.
Unlike the political branches, a Court thus weakened could not seek to regain
its position with a new mandate from the voters, and even if the Court could
somehow go to the polls, the loss of its principled character could not
be retrieved by the casting of so many votes. Like the character of an individual,
the legitimacy of the Court must be earned over time. So, indeed, must be
the character of a Nation of people who aspire to live according to the
rule of law. Their belief in themselves as such a people is not readily
separable from their understanding of the Court invested with the authority
to decide their constitutional cases and speak before all others for their
constitutional ideals. If the Court's legitimacy should be undermined, then,
so would the country be in its very ability to see itself through its constitutional
ideals. The Court's concern with legitimacy is not for the sake of the Court
but for the sake of the Nation to which it is responsible. |
| [112] | The Court's duty in the present case is clear. In 1973, it confronted
the already-divisive issue of governmental power to limit personal choice
to undergo abortion, for which it provided a new resolution based on the
due process guaranteed by the Fourteenth Amendment. Whether or not a new
social consensus is developing on that issue, its divisiveness is no less
today than in 1973, and pressure to overrule the decision, like pressure
to retain it, has grown only more intense. A decision to overrule Roe 's
essential holding under the existing circumstances would address error,
if error there was, at the cost of both profound and unnecessary damage
to the Court's legitimacy, and to the Nation's commitment to the rule of
law. It is therefore imperative to adhere to the essence of Roe 's original
decision, and we do so today. |
| [113] | IV |
| [114] | From what we have said so far it follows that it is a constitutional liberty
of the woman to have some freedom to terminate her pregnancy. We conclude
that the basic decision in Roe was based on a constitutional analysis which
we cannot now repudiate. The woman's liberty is not so unlimited, however,
that from the outset the State cannot show its concern for the life of the
unborn, and at a later point in fetal development the State's interest in
life has sufficient force so that the right of the woman to terminate the
pregnancy can be restricted. |
| [115] | That brings us, of course, to the point where much criticism has been
directed at Roe, a criticism that always inheres when the Court draws a
specific rule from what in the Constitution is but a general standard. We
conclude, however, that the urgent claims of the woman to retain the ultimate
control over her destiny and her body, claims implicit in the meaning of
liberty, require us to perform that function. Liberty must not be extinguished
for want of a line that is clear. And it falls to us to give some real substance
to the woman's liberty to determine whether to carry her pregnancy to full
term. |
| [116] | We conclude the line should be drawn at viability, so that before that
time the woman has a right to choose to terminate her pregnancy. We adhere
to this principle for two reasons. First, as we have said, is the doctrine
of stare decisis. Any judicial act of line-drawing may seem somewhat arbitrary,
but Roe was a reasoned statement, elaborated with great care. We have twice
reaffirmed it in the face of great opposition. See Thornburgh v. American
College of Obstetricians & Gynecologists, 476 U.S., at 759; Akron I,
462 U.S., at 419-420. Although we must overrule those parts of Thornburgh
and Akron I which, in our view, are inconsistent with Roe 's statement that
the State has a legitimate interest in promoting the life or potential life
of the unborn, see (infra), at , the central premise of those cases represents
an unbroken commitment by this Court to the essential holding of Roe. It
is that premise which we reaffirm today. |
| [117] | The second reason is that the concept of viability, as we noted in Roe,
is the time at which there is a realistic possibility of maintaining and
nourishing a life outside the womb, so that the independent existence of
the second life can in reason and all fairness be the object of state protection
that now overrides the rights of the woman. See Roe v. Wade, 410 U.S., at
163. Consistent with other constitutional norms, legislatures may draw lines
which appear arbitrary without the necessity of offering a justification.
But courts may not. We must justify the lines we draw. And there is no line
other than viability which is more workable. To be sure, as we have said,
there may be some medical developments that affect the precise point of
viability, see (supra) , at , but this is an imprecision within tolerable
limits given that the medical community and all those who must apply its
discoveries will continue to explore the matter. The viability line also
has, as a practical matter, an element of fairness. In some broad sense
it might be said that a woman who fails to act before viability has consented
to the State's intervention on behalf of the developing child. |
| [118] | The woman's right to terminate her pregnancy before viability is the most
central principle of Roe v. Wade. It is a rule of law and a component of
liberty we cannot renounce. |
| [119] | On the other side of the equation is the interest of the State in the
protection of potential life. The Roe Court recognized the State's "important
and legitimate interest in protecting the potentiality of human life."
Roe, (supra) , at 162. The weight to be given this state interest, not the
strength of the woman's interest, was the difficult question faced in Roe.
We do not need to say whether each of us, had we been Members of the Court
when the valuation of the State interest came before it as an original matter,
would have concluded, as the Roe Court did, that its weight is insufficient
to justify a ban on abortions prior to viability even when it is subject
to certain exceptions. The matter is not before us in the first instance,
and coming as it does after nearly 20 years of litigation in Roe 's wake
we are satisfied that the immediate question is not the soundness of Roe
's resolution of the issue, but the precedential force that must be accorded
to its holding. And we have concluded that the essential holding of Roe
should be reaffirmed. |
| [120] | Yet it must be remembered that Roe v. Wade speaks with clarity in establishing
not only the woman's liberty but also the State's "important and legitimate
interest in potential life." Roe, (supra) , at 163. That portion of
the decision in Roe has been given too little acknowledgement and implementation
by the Court in its subsequent cases. Those cases decided that any regulation
touching upon the abortion decision must survive strict scrutiny, to be
sustained only if drawn in narrow terms to further a compelling state interest.
See, e.g., Akron I, supra, at 427. Not all of the cases decided under that
formulation can be reconciled with the holding in Roe itself that the State
has legitimate interests in the health of the woman and in protecting the
potential life within her. In resolving this tension, we choose to rely
upon Roe, as against the later cases. |
| [121] | Roe established a trimester framework to govern abortion regulations.
Under this elaborate but rigid construct, almost no regulation at all is
permitted during the first trimester of pregnancy; regulations designed
to protect the woman's health, but not to further the State's interest in
potential life, are permitted during the second trimester; and during the
third trimester, when the fetus is viable, prohibitions are permitted provided
the life or health of the mother is not at stake. Roe v. Wade, (supra) ,
at 163-166. Most of our cases since Roe have involved the application of
rules derived from the trimester framework. See, e.g., Thornburgh v. American
College of Obstetricians and Gynecologists, supra; Akron I, (supra) . |
| [122] | The trimester framework no doubt was erected to ensure that the woman's
right to choose not become so subordinate to the State's interest in promoting
fetal life that her choice exists in theory but not in fact. We do not agree,
however, that the trimester approach is necessary to accomplish this objective.
A framework of this rigidity was unnecessary and in its later interpretation
sometimes contradicted the State's permissible exercise of its powers. |
| [123] | Though the woman has a right to choose to terminate or continue her pregnancy
before viability, it does not at all follow that the State is prohibited
from taking steps to ensure that this choice is thoughtful and informed.
Even in the earliest stages of pregnancy, the State may enact rules and
regulations designed to encourage her to know that there are philosophic
and social arguments of great weight that can be brought to bear in favor
of continuing the pregnancy to full term and that there are procedures and
institutions to allow adoption of unwanted children as well as a certain
degree of state assistance if the mother chooses to raise the child herself.
"'The Constitution does not forbid a State or city, pursuant to democratic
processes, from expressing a preference for normal childbirth.'" Webster
v. Reproductive Health Services, 492 U.S., at 511 (opinion of the Court)
(quoting Poelker v. Doe, 432 U.S. 519, 521 (1977)). It follows that States
are free to enact laws to provide a reasonable framework for a woman to
make a decision that has such profound and lasting meaning. This, too, we
find consistent with Roe 's central premises, and indeed the inevitable
consequence of our holding that the State has an interest in protecting
the life of the unborn. |
| [124] | We reject the trimester framework, which we do not consider to be part
of the essential holding of Roe. See Webster v. Reproductive Health Services,
(supra) , at 518 (opinion of REHNQUIST, C. J.); id., at 529 (O'CONNOR, J.,
Concurring in part and Concurring in judgment) (describing the trimester
framework as "problematic"). Measures aimed at ensuring that a
woman's choice contemplates the consequences for the fetus do not necessarily
interfere with the right recognized in Roe, although those measures have
been found to be inconsistent with the rigid trimester framework announced
in that case. A logical reading of the central holding in Roe itself, and
a necessary reconciliation of the liberty of the woman and the interest
of the State in promoting prenatal life, require, in our view, that we abandon
the trimester framework as a rigid prohibition on all previability regulation
aimed at the protection of fetal life. The trimester framework suffers from
these basic flaws: in its formulation it misconceives the nature of the
pregnant woman's interest; and in practice it undervalues the State's interest
in potential life, as recognized in Roe. |
| [125] | As our jurisprudence relating to all liberties save perhaps abortion has
recognized, not every law which makes a right more difficult to exercise
is, ipso facto, an infringement of that right. An example clarifies the
point. We have held that not every ballot access limitation amounts to an
infringement of the right to vote. Rather, the States are granted substantial
flexibility in establishing the framework within which voters choose the
candidates for whom they wish to vote. Anderson v. Celebrezze, 460 U.S.
780, 788 (1983); Norman v. Reed, 502 U.S. , 112 S. Ct. 698, 116 L. Ed. 2d
711 (1992). |
| [126] | The abortion right is similar. Numerous forms of state regulation might
have the incidental effect of increasing the cost or decreasing the availability
of medical care, whether for abortion or any other medical procedure. The
fact that a law which serves a valid purpose, one not designed to strike
at the right itself, has the incidental effect of making it more difficult
or more expensive to procure an abortion cannot be enough to invalidate
it. Only where state regulation imposes an undue burden on a woman's ability
to make this decision does the power of the State reach into the heart of
the liberty protected by the Due Process Clause. See Hodgson v. Minnesota,
497 U.S. 417, 458-459 (1990) (O'CONNOR, J., Concurring in part and Concurring
in judgment in part); Ohio v. Akron Center for Reproductive Health, 497
U.S. 502, , 111 L. Ed. 2d 405 , 110 S. Ct. 2972 (1990) (Akron II) (opinion
of KENNEDY, J.) Webster v. Reproductive Health Services, supra, at 530 (O'CONNOR,
J., Concurring in part and Concurring in judgment); Thornburgh v. American
College of Obstetricians and Gynecologists, 476 U.S., at 828 (O'CONNOR,
J., Dissenting); Simopoulos v. Virginia, 462 U.S. 506, 520 (1983) (O'CONNOR,
J., Concurring in part and Concurring in judgment); Planned Parenthood Assn.
of Kansas City v. Ashcroft, 462 U.S. 476, 505 (1983) (O'CONNOR, J., Concurring
in judgment in part and Dissenting in part); Akron I, 462 U.S., at 464 (O'CONNOR,
J., joined by WHITE and REHNQUIST, JJ., Dissenting); Bellotti v. Baird,
428 U.S. 132, 147 (1976) (Bellotti I). |
| [127] | For the most part, the Court's early abortion cases adhered to this view.
In Maher v. Roe, 432 U.S. 464, 473-474 (1977), the Court explained: "
Roe did not declare an unqualified 'constitutional right to an abortion,'
as the District Court seemed to think. Rather, the right protects the woman
from unduly burdensome interference with her freedom to decide whether to
terminate her pregnancy." See also Doe v. Bolton, 410 U.S. 179, 198
(1973) ("The interposition of the hospital abortion committee is unduly
restrictive of the patient's rights"); Bellotti I, (supra) , at 147
(State may not "impose undue burdens upon a minor capable of giving
an informed consent"); Harris v. McRae, 448 U.S. 297, 314 (1980) (citing
Maher, (supra) ). Cf. Carey v. Population Services International, 431 U.S.,
at 688 ("The same test must be applied to state regulations that burden
an individual's right to decide to prevent conception or terminate pregnancy
by substantially limiting access to the means of effectuating that decision
as is applied to state statutes that prohibit the decision entirely"). |
| [128] | These considerations of the nature of the abortion right illustrate that
it is an overstatement to describe it as a right to decide whether to have
an abortion "without interference from the State," Planned Parenthood
of Central Mo. v. Danforth, 428 U.S. 52, 61 (1976). All abortion regulations
interfere to some degree with a woman's ability to decide whether to terminate
her pregnancy. It is, as a consequence, not surprising that despite the
protestations contained in the original Roe opinion to the effect that the
Court was not recognizing an absolute right, 410 U.S., at 154-155, the Court's
experience applying the trimester framework has led to the striking down
of some abortion regulations which in no real sense deprived women of the
ultimate decision. Those decisions went too far because the right recognized
by Roe is a right "to be free from unwarranted governmental intrusion
into matters so fundamentally affecting a person as the decision whether
to bear or beget a child." Eisenstadt v. Baird, 405 U.S., at 453. Not
all governmental intrusion is of necessity unwarranted; and that brings
us to the other basic flaw in the trimester framework: even in Roe 's terms,
in practice it undervalues the State's interest in the potential life within
the woman. |
| [129] | Roe v. Wade was express in its recognition of the State's "important
and legitimate interests in preserving and protecting the health of the
pregnant woman in protecting the potentiality of human life." 410 U.S.,
at 162. The trimester framework, however, does not fulfill Roe 's own promise
that the State has an interest in protecting fetal life or potential life.
Roe began the contradiction by using the trimester framework to forbid any
regulation of abortion designed to advance that interest before viability.
Id., at 163. Before viability, Roe and subsequent cases treat all governmental
attempts to influence a woman's decision on behalf of the potential life
within her as unwarranted. This treatment is, in our judgment, incompatible
with the recognition that there is a substantial state interest in potential
life throughout pregnancy. Cf. Webster, 492 U.S., at 519 (opinion of REHNQUIST,
C. J.); Akron I, (supra) , at 461 (O'CONNOR, J., Dissenting). |
| [130] | The very notion that the State has a substantial interest in potential
life leads to the Conclusion that not all regulations must be deemed unwarranted.
Not all burdens on the right to decide whether to terminate a pregnancy
will be undue. In our view, the undue burden standard is the appropriate
means of reconciling the State's interest with the woman's constitutionally
protected liberty. |
| [131] | The concept of an undue burden has been utilized by the Court as well
as individual members of the Court, including two of us, in ways that could
be considered inconsistent. See, e.g., Hodgson v. Minnesota, 497 U.S., at
(O'CONNOR, J., Concurring in part and Concurring in judgment); Akron II,
497 U.S., at (opinion of KENNEDY, J.); Thornburgh v. American College of
Obstetricians and Gynecologists, 476 U.S., at 828-829 (O'CONNOR, J., Dissenting);
Akron I, supra, at 461-466 (O'CONNOR, J., Dissenting); Harris v. McRae,
supra, at 314; Maher v. Roe, supra, at 473; Beal v. Doe, 432 U.S. 438, 446
(1977); Bellotti I, supra, at 147. Because we set forth a standard of general
application to which we intend to adhere, it is important to clarify what
is meant by an undue burden. |
| [132] | A finding of an undue burden is a shorthand for the Conclusion that a
state regulation has the purpose or effect of placing a substantial obstacle
in the path of a woman seeking an abortion of a nonviable fetus. A statute
with this purpose is invalid because the means chosen by the State to further
the interest in potential life must be calculated to inform the woman's
free choice, not hinder it. And a statute which, while furthering the interest
in potential life or some other valid state interest, has the effect of
placing a substantial obstacle in the path of a woman's choice cannot be
considered a permissible means of serving its legitimate ends. To the extent
that the opinions of the Court or of individual Justices use the undue burden
standard in a manner that is inconsistent with this analysis, we set out
what in our view should be the controlling standard. Cf. McCleskey v. Zant,
499 U.S. , , 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991) (slip op., at 20)
(attempting to "define the doctrine of abuse of the writ with more
precision" after acknowledging tension among earlier cases). In our
considered judgment, an undue burden is an unconstitutional burden. See
Akron II, supra, at (opinion of KENNEDY, J.). Understood another way, we
answer the question, left open in previous opinions discussing the undue
burden formulation, whether a law designed to further the State's interest
in fetal life which imposes an undue burden on the woman's decision before
fetal viability could be constitutional. See, e.g., Akron I, (supra) , at
462-463 (O'CONNOR, J., Dissenting). The answer is no. |
| [133] | Some guiding principles should emerge. What is at stake is the woman's
right to make the ultimate decision, not a right to be insulated from all
others in doing so. Regulations which do no more than create a structural
mechanism by which the State, or the parent or guardian of a minor, may
express profound respect for the life of the unborn are permitted, if they
are not a substantial obstacle to the woman's exercise of the right to choose.
See (infra), at - (addressing Pennsylvania's parental consent requirement).
Unless it has that effect on her right of choice, a state measure designed
to persuade her to choose childbirth over abortion will be upheld if reasonably
related to that goal. Regulations designed to foster the health of a woman
seeking an abortion are valid if they do not constitute an undue burden. |
| [134] | Even when jurists reason from shared premises, some disagreement is inevitable.
Compare Hodgson, 497 U.S., at - (opinion of KENNEDY, J.) with id., at -
(O'CONNOR, J., Concurring in part and Concurring in judgment in part). That
is to be expected in the application of any legal standard which must accommodate
life's complexity. We do not expect it to be otherwise with respect to the
undue burden standard. We give this summary: |
| [135] | (a) To protect the central right recognized by Roe v. Wade while at the
same time accommodating the State's profound interest in potential life,
we will employ the undue burden analysis as explained in this opinion. An
undue burden exists, and therefore a provision of law is invalid, if its
purpose or effect is to place a substantial obstacle in the path of a woman
seeking an abortion before the fetus attains viability. |
| [136] | (b) We reject the rigid trimester framework of Roe v. Wade. To promote
the State's profound interest in potential life, throughout pregnancy the
State may take measures to ensure that the woman's choice is informed, and
measures designed to advance this interest will not be invalidated as long
as their purpose is to persuade the woman to choose childbirth over abortion.
These measures must not be an undue burden on the right. |
| [137] | (c) As with any medical procedure, the State may enact regulations to
further the health or safety of a woman seeking an abortion. Unnecessary
health regulations that have the purpose or effect of presenting a substantial
obstacle to a woman seeking an abortion impose an undue burden on the right. |
| [138] | (d) Our adoption of the undue burden analysis does not disturb the central
holding of Roe v. Wade, and we reaffirm that holding. Regardless of whether
exceptions are made for particular circumstances, a State may not prohibit
any woman from making the ultimate decision to terminate her pregnancy before
viability. |
| [139] | (e) We also reaffirm Roe 's holding that "subsequent to viability,
the State in promoting its interest in the potentiality of human life may,
if it chooses, regulate, and even proscribe, abortion except where it is
necessary, in appropriate medical judgment, for the preservation of the
life or health of the mother." Roe v. Wade, 410 U.S., at 164-165. |
| [140] | These principles control our assessment of the Pennsylvania statute, and
we now turn to the issue of the validity of its challenged provisions. |
| [141] | V |
| [142] | The Court of Appeals applied what it believed to be the undue burden standard
and upheld each of the provisions except for the husband notification requirement.
We agree generally with this Conclusion, but refine the undue burden analysis
in accordance with the principles articulated above. We now consider the
separate statutory sections at issue. |
| [143] | A |
| [144] | Because it is central to the operation of various other requirements,
we begin with the statute's definition of medical emergency. Under the statute,
a medical emergency is |
| [145] | "that condition which, on the basis of the physician's good faith
clinical judgment, so complicates the medical condition of a pregnant woman
as to necessitate the immediate abortion of her pregnancy to avert her death
or for which a delay will create serious risk of substantial and irreversible
impairment of a major bodily function." 18 Pa. Cons. Stat. (1990).
§ 3203. |
| [146] | Petitioners argue that the definition is too narrow, contending that it
forecloses the possibility of an immediate abortion despite some significant
health risks. If the contention were correct, we would be required to invalidate
the restrictive operation of the provision, for the essential holding of
Roe forbids a State from interfering with a woman's choice to undergo an
abortion procedure if continuing her pregnancy would constitute a threat
to her health. 410 U.S., at 164. See also Harris v. McRae, 448 U.S., at
316. |
| [147] | The District Court found that there were three serious conditions which
would not be covered by the statute: preeclampsia, inevitable abortion,
and premature ruptured membrane. 744 F. Supp., at 1378. Yet, as the Court
of Appeals observed, 947 F.2d, at 700-701, it is undisputed that under some
circumstances each of these conditions could lead to an illness with substantial
and irreversible consequences. While the definition could be interpreted
in an unconstitutional manner, the Court of Appeals construed the phrase
"serious risk" to include those circumstances. Id., at 701. It
stated: "we read the medical emergency exception as intended by the
Pennsylvania legislature to assure that compliance with its abortion regulations
would not in any way pose a significant threat to the life or health of
a woman." Ibid. As we said in Brockett v. Spokane Arcades, Inc., 472
U.S. 491, 499-500 (1985): "Normally, . . . we defer to the construction
of a state statute given it by the lower federal courts." Indeed, we
have said that we will defer to lower court interpretations of state law
unless they amount to "plain" error. Palmer v. Hoffman, 318 U.S.
109, 118 (1943). This "'reflect our belief that district courts and
courts of appeals are better schooled in and more able to interpret the
laws of their respective States.'" Frisby v. Schultz, 487 U.S. 474,
482 (1988) (citation omitted). We adhere to that course today, and conclude
that, as construed by the Court of Appeals, the medical emergency definition
imposes no undue burden on a woman's abortion right. |
| [148] | B |
| [149] | We next consider the informed consent requirement. 18 Pa. Cons. Stat.
Ann. § 3205. Except in a medical emergency, the statute requires that at
least 24 hours before performing an abortion a physician inform the woman
of the nature of the procedure, the health risks of the abortion and of
childbirth, and the "probable gestational age of the unborn child."
The physician or a qualified nonphysician must inform the woman of the availability
of printed materials published by the State describing the fetus and providing
information about medical assistance for childbirth, information about child
support from the father, and a list of agencies which provide adoption and
other services as alternatives to abortion. An abortion may not be performed
unless the woman certifies in writing that she has been informed of the
availability of these printed materials and has been provided them if she
chooses to view them. |
| [150] | Our prior decisions establish that as with any medical procedure, the
State may require a woman to give her written informed consent to an abortion.
See Planned Parenthood of Central Mo. v. Danforth, 428 U.S., at 67. In this
respect, the statute is unexceptional. Petitioners challenge the statute's
definition of informed consent because it includes the provision of specific
information by the doctor and the mandatory 24-hour waiting period. The
Conclusions reached by a majority of the Justices in the separate opinions
filed today and the undue burden standard adopted in this opinion require
us to overrule in part some of the Court's past decisions, decisions driven
by the trimester framework's prohibition of all previability regulations
designed to further the State's interest in fetal life. |
| [151] | In Akron I, 462 U.S. 416 (1983), we invalidated an ordinance which required
that a woman seeking an abortion be provided by her physician with specific
information "designed to influence the woman's informed choice between
abortion or childbirth." Id., at 444. As we later described the Akron
I holding in Thornburgh v. American College of Obstetricians and Gynecologists,
476 U.S., at 762, there were two purported flaws in the Akron ordinance:
the information was designed to dissuade the woman from having an abortion
and the ordinance imposed "a rigid requirement that a specific body
of information be given in all cases, irrespective of the particular needs
of the patient . . . ." Ibid. |
| [152] | To the extent Akron I and Thornburgh find a constitutional violation when
the government requires, as it does here, the giving of truthful, non-misleading
information about the nature of the procedure, the attendant health risks
and those of childbirth, and the "probable gestational age" of
the fetus, those cases go too far, are inconsistent with Roe 's acknowledgment
of an important interest in potential life, and are overruled. This is clear
even on the very terms of Akron I and Thornburgh. Those decisions, along
with Danforth, recognize a substantial government interest justifying a
requirement that a woman be apprised of the health risks of abortion and
childbirth. E.g., Danforth, (supra) , at 66-67. It cannot be questioned
that psychological well-being is a facet of health. Nor can it be doubted
that most women considering an abortion would deem the impact on the fetus
relevant, if not dispositive, to the decision. In attempting to ensure that
a woman apprehend the full consequences of her decision, the State furthers
the legitimate purpose of reducing the risk that a woman may elect an abortion,
only to discover later, with devastating psychological consequences, that
her decision was not fully informed. If the information the State requires
to be made available to the woman is truthful and not misleading, the requirement
may be permissible. |
| [153] | We also see no reason why the State may not require doctors to inform
a woman seeking an abortion of the availability of materials relating to
the consequences to the fetus, even when those consequences have no direct
relation to her health. An example illustrates the point. We would think
it constitutional for the State to require that in order for there to be
informed consent to a kidney transplant operation the recipient must be
supplied with information about risks to the donor as well as risks to himself
or herself. A requirement that the physician make available information
similar to that mandated by the statute here was described in Thornburgh
as "an outright attempt to wedge the Commonwealth's message discouraging
abortion into the privacy of the informed-consent dialogue between the woman
and her physician." 476 U.S., at 762. We conclude, however, that informed
choice need not be defined in such narrow terms that all considerations
of the effect on the fetus are made irrelevant. As we have made clear, we
depart from the holdings of Akron I and Thornburgh to the extent that we
permit a State to further its legitimate goal of protecting the life of
the unborn by enacting legislation aimed at ensuring a decision that is
mature and informed, even when in so doing the State expresses a preference
for childbirth over abortion. In short, requiring that the woman be informed
of the availability of information relating to fetal development and the
assistance available should she decide to carry the pregnancy to full term
is a reasonable measure to insure an informed choice, one which might cause
the woman to choose childbirth over abortion. This requirement cannot be
considered a substantial obstacle to obtaining an abortion, and, it follows,
there is no undue burden. |
| [154] | Our prior cases also suggest that the "straitjacket," Thornburgh,
(supra) , at 762 (quoting Danforth, (supra) , at 67, n. 8), of particular
information which must be given in each case interferes with a constitutional
right of privacy between a pregnant woman and her physician. As a preliminary
matter, it is worth noting that the statute now before us does not require
a physician to comply with the informed consent provisions "if he or
she can demonstrate by a preponderance of the evidence, that he or she reasonably
believed that furnishing the information would have resulted in a severely
adverse effect on the physical or mental health of the patient." 18
Pa. Cons. Stat. § 3205 (1990). In this respect, the statute does not prevent
the physician from exercising his or her medical judgment. |
| [155] | Whatever constitutional status the doctor-patient relation may have as
a general matter, in the present context it is derivative of the woman's
position. The doctor-patient relation does not underlie or override the
two more general rights under which the abortion right is justified: the
right to make family decisions and the right to physical autonomy. On its
own, the doctor-patient relation here is entitled to the same solicitude
it receives in other contexts. Thus, a requirement that a doctor give a
woman certain information as part of obtaining her consent to an abortion
is, for constitutional purposes, no different from a requirement that a
doctor give certain specific information about any medical procedure. |
| [156] | All that is left of petitioners' argument is an asserted First Amendment
right of a physician not to provide information about the risks of abortion,
and childbirth, in a manner mandated by the State. To be sure, the physician's
First Amendment rights not to speak are implicated, see Wooley v. Maynard,
430 U.S. 705 (1977), but only as part of the practice of medicine, subject
to reasonable licensing and regulation by the State. Cf. Whalen v. Roe,
429 U.S. 589, 603 (1977). We see no constitutional infirmity in the requirement
that the physician provide the information mandated by the State here. |
| [157] | The Pennsylvania statute also requires us to reconsider the holding in
Akron I that the State may not require that a physician, as opposed to a
qualified assistant, provide information relevant to a woman's informed
consent. 462 U.S., at 448. Since there is no evidence on this record that
requiring a doctor to give the information as provided by the statute would
amount in practical terms to a substantial obstacle to a woman seeking an
abortion, we conclude that it is not an undue burden. Our cases reflect
the fact that the Constitution gives the States broad latitude to decide
that particular functions may be performed only by licensed professionals,
even if an objective assessment might suggest that those same tasks could
be performed by others. See Williamson v. Lee Optical of Oklahoma, Inc.,
348 U.S. 483 (1955). Thus, we uphold the provision as a reasonable means
to insure that the woman's consent is informed. |
| [158] | Our analysis of Pennsylvania's 24-hour waiting period between the provision
of the information deemed necessary to informed consent and the performance
of an abortion under the undue burden standard requires us to reconsider
the premise behind the decision in Akron I invalidating a parallel requirement.
In Akron I we said: "Nor are we convinced that the State's legitimate
concern that the woman's decision be informed is reasonably served by requiring
a 24-hour delay as a matter of course." 462 U.S., at 450. We consider
that Conclusion to be wrong. The idea that important decisions will be more
informed and deliberate if they follow some period of reflection does not
strike us as unreasonable, particularly where the statute directs that important
information become part of the background of the decision. The statute,
as construed by the Court of Appeals, permits avoidance of the waiting period
in the event of a medical emergency and the record evidence shows that in
the vast majority of cases, a 24-hour delay does not create any appreciable
health risk. In theory, at least, the waiting period is a reasonable measure
to implement the State's interest in protecting the life of the unborn,
a measure that does not amount to an undue burden. |
| [159] | Whether the mandatory 24-hour waiting period is nonetheless invalid because
in practice it is a substantial obstacle to a woman's choice to terminate
her pregnancy is a closer question. The findings of fact by the District
Court indicate that because of the distances many women must travel to reach
an abortion provider, the practical effect will often be a delay of much
more than a day because the waiting period requires that a woman seeking
an abortion make at least two visits to the doctor. The District Court also
found that in many instances this will increase the exposure of women seeking
abortions to "the harassment and hostility of anti-abortion protestors
demonstrating outside a clinic." 744 F. Supp., at 1351. As a result,
the District Court found that for those women who have the fewest financial
resources, those who must travel long distances, and those who have difficulty
explaining their whereabouts to husbands, employers, or others, the 24-hour
waiting period will be "particularly burdensome." Id., at 1352. |
| [160] | These findings are troubling in some respects, but they do not demonstrate
that the waiting period constitutes an undue burden. We do not doubt that,
as the District Court held, the waiting period has the effect of "increasing
the cost and risk of delay of abortions," id., at 1378, but the District
Court did not conclude that the increased costs and potential delays amount
to substantial obstacles. Rather, applying the trimester framework's strict
prohibition of all regulation designed to promote the State's interest in
potential life before viability, see id., at 1374, the District Court concluded
that the waiting period does not further the state "interest in maternal
health" and "infringes the physician's discretion to exercise
sound medical judgment." Id., at 1378. Yet, as we have stated, under
the undue burden standard a State is permitted to enact persuasive measures
which favor childbirth over abortion, even if those measures do not further
a health interest. And while the waiting period does limit a physician's
discretion, that is not, standing alone, a reason to invalidate it. In light
of the construction given the statute's definition of medical emergency
by the Court of Appeals, and the District Court's findings, we cannot say
that the waiting period imposes a real health risk. |
| [161] | We also disagree with the District Court's Conclusion that the "particularly
burdensome" effects of the waiting period on some women require its
invalidation. A particular burden is not of necessity a substantial obstacle.
Whether a burden falls on a particular group is a distinct inquiry from
whether it is a substantial obstacle even as to the women in that group.
And the District Court did not conclude that the waiting period is such
an obstacle even for the women who are most burdened by it. Hence, on the
record before us, and in the context of this facial challenge, we are not
convinced that the 24-hour waiting period constitutes an undue burden. |
| [162] | We are left with the argument that the various aspects of the informed
consent requirement are unconstitutional because they place barriers in
the way of abortion on demand. Even the broadest reading of Roe, however,
has not suggested that there is a constitutional right to abortion on demand.
See, e.g., Doe v. Bolton, 410 U.S., at 189. Rather, the right protected
by Roe is a right to decide to terminate a pregnancy free of undue interference
by the State. Because the informed consent requirement facilitates the wise
exercise of that right it cannot be classified as an interference with the
right Roe protects. The informed consent requirement is not an undue burden
on that right. |
| [163] | C |
| [164] | Section 3209 of Pennsylvania's abortion law provides, except in cases
of medical emergency, that no physician shall perform an abortion on a married
woman without receiving a signed statement from the woman that she has notified
her spouse that she is about to undergo an abortion. The woman has the option
of providing an alternative signed statement certifying that her husband
is not the man who impregnated her; that her husband could not be located;
that the pregnancy is the result of spousal sexual assault which she has
reported; or that the woman believes that notifying her husband will cause
him or someone else to inflict bodily injury upon her. A physician who performs
an abortion on a married woman without receiving the appropriate signed
statement will have his or her license revoked, and is liable to the husband
for damages. |
| [165] | The District Court heard the testimony of numerous expert witnesses, and
made detailed findings of fact regarding the effect of this statute. These
included: |
| [166] | "273. The vast majority of women consult their husbands prior to
deciding to terminate their pregnancy. . . . |
| [167] | "279. The bodily injury' exception could not be invoked by a married
woman whose husband, if notified, would, in her reasonable belief, threaten
to (a) publicize her intent to have an abortion to family, friends or acquaintances;
(b) retaliate against her in future child custody or divorce proceedings;
(c) inflict psychological intimidation or emotional harm upon her, her children
or other persons; (d) inflict bodily harm on other persons such as children,
family members or other loved ones; or (e) use his control over finances
to deprive of necessary monies for herself or her children. . . . |
| [168] | "281. Studies reveal that family violence occurs in two million families
in the United States. This figure, however, is a conservative one that substantially
understates (because battering is usually not reported until it reaches
life-threatening proportions) the actual number of families affected by
domestic violence. In fact, researchers estimate that one of every two women
will be battered at some time in their life. . . . |
| [169] | "282. A wife may not elect to notify her husband of her intention
to have an abortion for a variety of reasons, including the husband's illness,
concern about her own health, the imminent failure of the marriage, or the
husband's absolute opposition to the abortion. . . . |
| [170] | "283. The required filing of the spousal consent form would require
plaintiff-clinics to change their counseling procedures and force women
to reveal their most intimate decision-making on pain of criminal sanctions.
The confidentiality of these revelations could not be guaranteed, since
the woman's records are not immune from subpoena. . . . |
| [171] | "284. Women of all class levels, educational backgrounds, and racial,
ethnic and religious groups are battered. . . . |
| [172] | "285. Wife-battering or abuse can take on many physical and psychological
forms. The nature and scope of the battering can cover a broad range of
actions and be gruesome and torturous. . . . |
| [173] | "286. Married women, victims of battering, have been killed in Pennsylvania
and throughout the United States. . . . |
| [174] | "287. Battering can often involve a substantial amount of sexual
abuse, including marital rape and sexual mutilation. . . . |
| [175] | "288. In a domestic abuse situation, it is common for the battering
husband to also abuse the children in an attempt to coerce the wife. . .
. |
| [176] | "289. Mere notification of pregnancy is frequently a flash-point
for battering and violence within the family. The number of battering incidents
is high during the pregnancy and often the worst abuse can be associated
with pregnancy. . . . The battering husband may deny parentage and use the
pregnancy as an excuse for abuse. . . . |
| [177] | "290. Secrecy typically shrouds abusive families. Family members
are instructed not to tell anyone, especially police or doctors, about the
abuse and violence. Battering husbands often threaten their wives or her
children with further abuse if she tells an outsider of the violence and
tells her that nobody will believe her. A battered woman, therefore, is
highly unlikely to disclose the violence against her for fear of retaliation
by the abuser. . . . |
| [178] | "291. Even when confronted directly by medical personnel or other
helping professionals, battered women often will not admit to the battering
because they have not admitted to themselves that they are battered. . .
. |
| [179] | "294. A woman in a shelter or a safe house unknown to her husband
is not reasonably likely' to have bodily harm inflicted upon her by her
batterer, however her attempt to notify her husband pursuant to section
3209 could accidentally disclose her whereabouts to her husband. Her fear
of future ramifications would be realistic under the circumstances. |
| [180] | "295. Marital rape is rarely discussed with others or reported to
law enforcement authorities, and of those reported only few are prosecuted.
. . . |
| [181] | "296. It is common for battered women to have sexual intercourse
with their husbands to avoid being battered. While this type of coercive
sexual activity would be spousal sexual assault as defined by the Act, many
women may not consider it to be so and others would fear disbelief. . .
. |
| [182] | "297. The marital rape exception to section 3209 cannot be claimed
by women who are victims of coercive sexual behavior other than penetration.
The 90-day reporting requirement of the spousal sexual assault statute,
18 Pa. Con. Stat. Ann. § 3218(c), further narrows the class of sexually
abused wives who can claim the exception, since many of these women may
be psychologically unable to discuss or report the rape for several years
after the incident. . . . |
| [183] | "298. Because of the nature of the battering relationship, battered
women are unlikely to avail themselves of the exceptions to section 3209
of the Act, regardless of whether the section applies to them." 744
F. Supp., at 1360-1362. |
| [184] | These findings are supported by studies of domestic violence. The American
Medical Association (AMA) has published a summary of the recent research
in this field, which indicates that in an average 12-month period in this
country, approximately two million women are the victims of severe assaults
by their male partners. In a 1985 survey, women reported that nearly one
of every eight husbands had assaulted their wives during the past year.
The AMA views these figures as "marked underestimates," because
the nature of these incidents discourages women from reporting them, and
because surveys typically exclude the very poor, those who do not speak
English well, and women who are homeless or in institutions or hospitals
when the survey is conducted. According to the AMA, "researchers on
family violence agree that the true incidence of partner violence is probably
double the above estimates; or four million severely assaulted women per
year. Studies suggest that from one-fifth to one-third of all women will
be physically assaulted by a partner or ex-partner during their lifetime."
AMA Council on Scientific Affairs, Violence Against Women 7 (1991) (emphasis
in original). Thus on an average day in the United States, nearly 11,000
women are severely assaulted by their male partners. Many of these incidents
involve sexual assault. Id., at 3-4; Shields & Hanneke, Battered Wives'
Reactions to Marital Rape, in The Dark Side of Families: Current Family
Violence Research 131, 144 (D. Finkelhor, R. Gelles, G. Hataling, &
M. Straus eds. 1983). In families where wife-beating takes place, moreover,
child abuse is often present as well. Violence Against Women, (supra) ,
at 12. |
| [185] | Other studies fill in the rest of this troubling picture. Physical violence
is only the most visible form of abuse. Psychological abuse, particularly
forced social and economic isolation of women, is also common. L. Walker,
The Battered Woman Syndrome 27-28 (1984). Many victims of domestic violence
remain with their abusers, perhaps because they perceive no superior alternative.
Herbert, Silver, & Ellard, Coping with an Abusive Relationship: I. How
and Why do Women Stay?, 53 J. Marriage & the Family 311 (1991). Many
abused women who find temporary refuge in shelters return to their husbands,
in large part because they have no other source of income. Aguirre, Why
Do They Return? Abused Wives in Shelters, 30 J. Nat. Assn. of Social Workers
350, 352 (1985). Returning to one's abuser can be dangerous. Recent Federal
Bureau of Investigation statistics disclose that 8.8% of all homicide victims
in the United States are killed by their spouse. Mercy & Saltzman, Fatal
Violence Among Spouses in the United States, 1976-85, 79 Am. J. Public Health
595 (1989). Thirty percent of female homicide victims are killed by their
male partners. Domestic Violence: Terrorism in the Home, Hearing before
the Subcommittee on Children, Family, Drugs and Alcoholism of the Senate
Committee on Labor and Human Resources, 101st Cong., 2d Sess., 3 (1990). |
| [186] | The limited research that has been conducted with respect to notifying
one's husband about an abortion, although involving samples too small to
be representative, also supports the District Court's findings of fact.
The vast majority of women notify their male partners of their decision
to obtain an abortion. In many cases in which married women do not notify
their husbands, the pregnancy is the result of an extramarital affair. Where
the husband is the father, the primary reason women do not notify their
husbands is that the husband and wife are experiencing marital difficulties,
often accompanied by incidents of violence. Ryan & Plutzer, When Married
Women Have Abortions: Spousal Notification and Marital Interaction, 51 J.
Marriage & the Family 41, 44 (1989). |
| [187] | This information and the District Court's findings reinforce what common
sense would suggest. In well-functioning marriages, spouses discuss important
intimate decisions such as whether to bear a child. But there are millions
of women in this country who are the victims of regular physical and psychological
abuse at the hands of their husbands. Should these women become pregnant,
they may have very good reasons for not wishing to inform their husbands
of their decision to obtain an abortion. Many may have justifiable fears
of physical abuse, but may be no less fearful of the consequences of reporting
prior abuse to the Commonwealth of Pennsylvania. Many may have a reasonable
fear that notifying their husbands will provoke further instances of child
abuse; these women are not exempt from § 3209's notification requirement.
Many may fear devastating forms of psychological abuse from their husbands,
including verbal harassment, threats of future violence, the destruction
of possessions, physical confinement to the home, the withdrawal of financial
support, or the disclosure of the abortion to family and friends. These
methods of psychological abuse may act as even more of a deterrent to notification
than the possibility of physical violence, but women who are the victims
of the abuse are not exempt from § 3209's notification requirement. And
many women who are pregnant as a result of sexual assaults by their husbands
will be unable to avail themselves of the exception for spousal sexual assault,
§ 3209(b)(3), because the exception requires that the woman have notified
law enforcement authorities within 90 days of the assault, and her husband
will be notified of her report once an investigation begins. § 3128(c).
If anything in this field is certain, it is that victims of spousal sexual
assault are extremely reluctant to report the abuse to the government; hence,
a great many spousal rape victims will not be exempt from the notification
requirement imposed by § 3209. |
| [188] | The spousal notification requirement is thus likely to prevent a significant
number of women from obtaining an abortion. It does not merely make abortions
a little more difficult or expensive to obtain; for many women, it will
impose a substantial obstacle. We must not blind ourselves to the fact that
the significant number of women who fear for their safety and the safety
of their children are likely to be deterred from procuring an abortion as
surely as if the Commonwealth had outlawed abortion in all cases. |
| [189] | Respondents attempt to avoid the Conclusion that § 3209 is invalid by
pointing out that it imposes almost no burden at all for the vast majority
of women seeking abortions. They begin by noting that only about 20 percent
of the women who obtain abortions are married. They then note that of these
women about 95 percent notify their husbands of their own volition. Thus,
respondents argue, the effects of § 3209 are felt by only one percent of
the women who obtain abortions. Respondents argue that since some of these
women will be able to notify their husbands without adverse consequences
or will qualify for one of the exceptions, the statute affects fewer than
one percent of women seeking abortions. For this reason, it is asserted,
the statute cannot be invalid on its face. See Brief for Respondents 83-86.
We disagree with respondents' basic method of analysis. |
| [190] | The analysis does not end with the one percent of women upon whom the
statute operates; it begins there. Legislation is measured for consistency
with the Constitution by its impact on those whose conduct it affects. For
example, we would not say that a law which requires a newspaper to print
a candidate's reply to an unfavorable editorial is valid on its face because
most newspapers would adopt the policy even absent the law. See Miami Herald
Publishing Co. v. Tornillo, 418 U.S. 241 (1974). The proper focus of constitutional
inquiry is the group for whom the law is a restriction, not the group for
whom the law is irrelevant. |
| [191] | Respondents' argument itself gives implicit recognition to this principle,
at one of its critical points. Respondents speak of the one percent of women
seeking abortions who are married and would choose not to notify their husbands
of their plans. By selecting as the controlling class women who wish to
obtain abortions, rather than all women or all pregnant women, respondents
in effect concede that § 3209 must be Judged by reference to those for whom
it is an actual rather than irrelevant restriction. Of course, as we have
said, § 3209's real target is narrower even than the class of women seeking
abortions identified by the State: it is married women seeking abortions
who do not wish to notify their husbands of their intentions and who do
not qualify for one of the statutory exceptions to the notice requirement.
The unfortunate yet persisting conditions we document above will mean that
in a large fraction of the cases in which § 3209 is relevant, it will operate
as a substantial obstacle to a woman's choice to undergo an abortion. It
is an undue burden, and therefore invalid. |
| [192] | This Conclusion is in no way inconsistent with our decisions upholding
parental notification or consent requirements. See, e.g., Akron II, 497
U.S., at ; Bellotti v. Baird, 443 U.S. 622 (1979) (Bellotti II); Planned
Parenthood of Central Mo. v. Danforth, 428 U.S., at 74. Those enactments,
and our judgment that they are constitutional, are based on the quite reasonable
assumption that minors will benefit from consultation with their parents
and that children will often not realize that their parents have their best
interests at heart. We cannot adopt a parallel assumption about adult women. |
| [193] | We recognize that a husband has a "deep and proper concern and interest
. . . in his wife's pregnancy and in the growth and development of the fetus
she is carrying." Danforth, (supra) , at 69. With regard to the children
he has fathered and raised, the Court has recognized his "cognizable
and substantial" interest in their custody. Stanley v. Illinois, 405
U.S. 645, 651-652 (1972); see also Quilloin v. Walcott, 434 U.S. 246 (1978);
Caban v. Mohammed, 441 U.S. 380 (1979); Lehr v. Robertson, 463 U.S. 248
(1983). If this case concerned a State's ability to require the mother to
notify the father before taking some action with respect to a living child
raised by both, therefore, it would be reasonable to conclude as a general
matter that the father's interest in the welfare of the child and the mother's
interest are equal. |
| [194] | Before birth, however, the issue takes on a very different cast. It is
an inescapable biological fact that state regulation with respect to the
child a woman is carrying will have a far greater impact on the mother's
liberty than on the father's. The effect of state regulation on a woman's
protected liberty is doubly deserving of scrutiny in such a case, as the
State has touched not only upon the private sphere of the family but upon
the very bodily integrity of the pregnant woman. Cf. Cruzan v. Director,
Missouri Dept. of Health, 497 U.S., at 281. The Court has held that "when
the wife and the husband disagree on this decision, the view of only one
of the two marriage partners can prevail. Inasmuch as it is the woman who
physically bears the child and who is the more directly and immediately
affected by the pregnancy, as between the two, the balance weighs in her
favor." Danforth, supra, at 71. This Conclusion rests upon the basic
nature of marriage and the nature of our Constitution: "The marital
couple is not an independent entity with a mind and heart of its own, but
an association of two individuals each with a separate intellectual and
emotional makeup. If the right of privacy means anything, it is the right
of the individual, married or single, to be free from unwarranted governmental
intrusion into matters so fundamentally affecting a person as the decision
whether to bear or beget a child." Eisenstadt v. Baird, 405 U.S., at
453 (emphasis in original). The Constitution protects individuals, men and
women alike, from unjustified state interference, even when that interference
is enacted into law for the benefit of their spouses. |
| [195] | There was a time, not so long ago, when a different understanding of the
family and of the Constitution prevailed. In Bradwell v. Illinois, 16 Wall.
130 (1873), three Members of this Court reaffirmed the common-law principle
that "a woman had no legal existence separate from her husband, who
was regarded as her head and representative in the social state; and, notwithstanding
some recent modifications of this civil status, many of the special rules
of law flowing from and dependent upon this cardinal principle still exist
in full force in most States." Id., at 141 (Bradley J., joined by Swayne
and Field, JJ., Concurring in judgment). Only one generation has passed
since this Court observed that "woman is still regarded as the center
of home and family life," with attendant "special responsibilities"
that precluded full and independent legal status under the Constitution.
Hoyt v. Florida, 368 U.S. 57, 62 (1961). These views, of course, are no
longer consistent with our understanding of the family, the individual,
or the Constitution. |
| [196] | In keeping with our rejection of the common-law understanding of a woman's
role within the family, the Court held in Danforth that the Constitution
does not permit a State to require a married woman to obtain her husband's
consent before undergoing an abortion. 428 U.S., at 69. The principles that
guided the Court in Danforth should be our guides today. For the great many
women who are victims of abuse inflicted by their husbands, or whose children
are the victims of such abuse, a spousal notice requirement enables the
husband to wield an effective veto over his wife's decision. Whether the
prospect of notification itself deters such women from seeking abortions,
or whether the husband, through physical force or psychological pressure
or economic coercion, prevents his wife from obtaining an abortion until
it is too late, the notice requirement will often be tantamount to the veto
found unconstitutional in Danforth. The women most affected by this law
-- those who most reasonably fear the consequences of notifying their husbands
that they are pregnant -- are in the gravest danger. |
| [197] | The husband's interest in the life of the child his wife is carrying does
not permit the State to empower him with this troubling degree of authority
over his wife. The contrary view leads to consequences reminiscent of the
common law. A husband has no enforceable right to require a wife to advise
him before she exercises her personal choices. If a husband's interest in
the potential life of the child outweighs a wife's liberty, the State could
require a married woman to notify her husband before she uses a postfertilization
contraceptive. Perhaps next in line would be a statute requiring pregnant
married women to notify their husbands before engaging in conduct causing
risks to the fetus. After all, if the husband's interest in the fetus' safety
is a sufficient predicate for state regulation, the State could reasonably
conclude that pregnant wives should notify their husbands before drinking
alcohol or smoking. Perhaps married women should notify their husbands before
using contraceptives or before undergoing any type of surgery that may have
complications affecting the husband's interest in his wife's reproductive
organs. And if a husband's interest justifies notice in any of these cases,
one might reasonably argue that it justifies exactly what the Danforth Court
held it did not justify -- a requirement of the husband's consent as well.
A State may not give to a man the kind of dominion over his wife that parents
exercise over their children. |
| [198] | Section 3209 embodies a view of marriage consonant with the common-law
status of married women but repugnant to our present understanding of marriage
and of the nature of the rights secured by the Constitution. Women do not
lose their constitutionally protected liberty when they marry. The Constitution
protects all individuals, male or female, married or unmarried, from the
abuse of governmental power, even where that power is employed for the supposed
benefit of a member of the individual's family. These considerations confirm
our Conclusion that § 3209 is invalid. |
| [199] | D |
| [200] | We next consider the parental consent provision. Except in a medical emergency,
an unemancipated young woman under 18 may not obtain an abortion unless
she and one of her parents (or guardian) provides informed consent as defined
above. If neither a parent nor a guardian provides consent, a court may
authorize the performance of an abortion upon a determination that the young
woman is mature and capable of giving informed consent and has in fact given
her informed consent, or that an abortion would be in her best interests. |
| [201] | We have been over most of this ground before. Our cases establish, and
we reaffirm today, that a State may require a minor seeking an abortion
to obtain the consent of a parent or guardian, provided that there is an
adequate judicial bypass procedure. See, e.g., Akron II, 497 U.S., at ;
Hodgson, 497 U.S., at ; Akron I, supra, at 440; Bellotti II, supra, at 643-644
(plurality opinion). Under these precedents, in our view, the one-parent
consent requirement and judicial bypass procedure are constitutional. |
| [202] | The only argument made by petitioners respecting this provision and to
which our prior decisions do not speak is the contention that the parental
consent requirement is invalid because it requires informed parental consent.
For the most part, petitioners' argument is a reprise of their argument
with respect to the informed consent requirement in general, and we reject
it for the reasons given above. Indeed, some of the provisions regarding
informed consent have particular force with respect to minors: the waiting
period, for example, may provide the parent or parents of a pregnant young
woman the opportunity to consult with her in private, and to discuss the
consequences of her decision in the context of the values and moral or religious
principles of their family. See Hodgson, (supra) , at . |
| [203] | E |
| [204] | Under the recordkeeping and reporting requirements of the statute, every
facility which performs abortions is required to file a report stating its
name and address as well as the name and address of any related entity,
such as a controlling or subsidiary organization. In the case of state-funded
institutions, the information becomes public. |
| [205] | For each abortion performed, a report must be filed identifying: the physician
(and the second physician where required); the facility; the referring physician
or agency; the woman's age; the number of prior pregnancies and prior abortions
she has had; gestational age; the type of abortion procedure; the date of
the abortion; whether there were any pre-existing medical conditions which
would complicate pregnancy; medical complications with the abortion; where
applicable, the basis for the determination that the abortion was medically
necessary; the weight of the aborted fetus; and whether the woman was married,
and if so, whether notice was provided or the basis for the failure to give
notice. Every abortion facility must also file quarterly reports showing
the number of abortions performed broken down by trimester. See 18 Pa. Cons.
Stat. §§ 3207, 3214 (1990). In all events, the identity of each woman who
has had an abortion remains confidential. |
| [206] | In Danforth, 428 U.S., at 80, we held that recordkeeping and reporting
provisions "that are reasonably directed to the preservation of maternal
health and that properly respect a patient's confidentiality and privacy
are permissible." We think that under this standard, all the provisions
at issue here except that relating to spousal notice are constitutional.
Although they do not relate to the State's interest in informing the woman's
choice, they do relate to health. The collection of information with respect
to actual patients is a vital element of medical research, and so it cannot
be said that the requirements serve no purpose other than to make abortions
more difficult. Nor do we find that the requirements impose a substantial
obstacle to a woman's choice. At most they might increase the cost of some
abortions by a slight amount. While at some point increased cost could become
a substantial obstacle, there is no such showing on the record before us. |
| [207] | Subsection (12) of the reporting provision requires the reporting of,
among other things, a married woman's "reason for failure to provide
notice" to her husband. § 3214(a)(12). This provision in effect requires
women, as a condition of obtaining an abortion, to provide the Commonwealth
with the precise information we have already recognized that many women
have pressing reasons not to reveal. Like the spousal notice requirement
itself, this provision places an undue burden on a woman's choice, and must
be invalidated for that reason. |
| [208] | VI |
| [209] | Our Constitution is a covenant running from the first generation of Americans
to us and then to future generations. It is a coherent succession. Each
generation must learn anew that the Constitution's written terms embody
ideas and aspirations that must survive more ages than one. We accept our
responsibility not to retreat from interpreting the full meaning of the
covenant in light of all of our precedents. We invoke it once again to define
the freedom guaranteed by the Constitution's own promise, the promise of
liberty. |
| [210] | The judgment in No. 91-902 is affirmed. The judgment in No. 91-744 is
affirmed in part and reversed in part, and the case is remanded for proceedings
consistent with this opinion, including consideration of the question of
severability. |
| [211] | It is so ordered. |
| [212] | APPENDIX TO OPINION |
| [213] | Selected Provisions of the 1988 and 1989 |
| [214] | Amendments to the Pennsylvania |
| [215] | Abortion Control Act of 1982 |
| [216] | 18 PA. CONS. STAT. ANN. (1990). |
| [217] | "§ 3203. Definitions. |
| [218] | "'Medical emergency.'" That condition which, on the basis of
the physician's good faith clinical judgment, so complicates the medical
condition of a pregnant woman as to necessitate the immediate abortion of
her pregnancy to avert her death or for which a delay will create serious
risk of substantial and irreversible impairment of major bodily function." |
| [219] | "§ 3205. Informed Consent. |
| [220] | "(a) General Rule. -- No abortion shall be performed or induced except
with the voluntary and informed consent of the woman upon whom the abortion
is to be performed or induced. Except in the case of a medical emergency,
consent to an abortion is voluntary and informed if and only if: |
| [221] | "(1) At least 24 hours prior to the abortion, the physician who is
to perform the abortion or the referring physician has orally informed the
woman of: |
| [222] | "(i) The nature of the proposed procedure or treatment and of those
risks and alternatives to the procedure or treatment that a reasonable patient
would consider material to the decision of whether or not to undergo the
abortion. |
| [223] | "(ii) The probable gestational age of the unborn child at the time
the abortion is to be performed. |
| [224] | "(iii) The medical risks associated with carrying her child to term. |
| [225] | "(2) At least 24 hours prior to the abortion, the physician who is
to perform the abortion or the referring physician, or a qualified physician
assistant, health care practitioner, technician or social worker to whom
the responsibility has been delegated by either physician, has informed
the pregnant woman that: |
| [226] | "(i) The department publishes printed materials which describe the
unborn child and list agencies which offer alternatives to abortion and
that she has a right to review the printed materials and that a copy will
be provided to her free of charge if she chooses to review it. |
| [227] | "(ii) Medical assistance benefits may be available for prenatal care,
childbirth and neonatal care, and that more detailed information on the
availability of such assistance is contained in the printed materials published
by the department. |
| [228] | "(iii) The father of the unborn child is liable to assist in the
support of her child, even in instances where he has offered to pay for
the abortion. In the case of rape, this information may be omitted. |
| [229] | "(3) A copy of the printed materials has been provided to the woman
if she chooses to view these materials. |
| [230] | "(4) The pregnant woman certifies in writing, prior to the abortion,
that the information required to be provided under paragraphs (1), (2) and
(3) has been provided. |
| [231] | "(b) Emergency. -- Where a medical emergency compels the performance
of an abortion, the physician shall inform the woman, prior to the abortion
if possible, of the medical indications supporting his judgment that an
abortion is necessary to avert her death or to avert substantial and irreversible
impairment of major bodily function. |
| [232] | "(c) Penalty. -- Any physician who violates the provisions of this
section is guilty of 'unprofessional conduct' and his license for the practice
of medicine and surgery shall be subject to suspension or revocation in
accordance with procedures provided under the act of October 5, 1978 (P.L.
1109, No. 261), known as the Osteopathic Medical Practice Act, the act of
December 20, 1985 (P.L. 457, No. 112), known as the Medical Practice Act
of 1985, or their successor acts. Any physician who performs or induces
an abortion without first obtaining the certification required by subsection
(a)(4) or with knowledge or reason to know that the informed consent of
the woman has not been obtained shall for the first offense be guilty of
a summary offense and for each subsequent offense be guilty of a misdemeanor
of the third degree. No physician shall be guilty of violating this section
for failure to furnish the information required by subsection (a) if he
or she can demonstrate, by a preponderance of the evidence, that he or she
reasonably believed that furnishing the information would have resulted
in a severely adverse effect on the physical or mental health of the patient. |
| [233] | "(d) Limitation on Civil Liability. -- Any physician who complies
with the provisions of this section may not be held civilly liable to his
patient for failure to obtain informed consent to the abortion within the
meaning of that term as defined by the act of October 15, 1975 (P.L. 390,
No. 111), known as the Health Care Services Malpractice Act." |
| [234] | "§ 3206. Parental Consent. |
| [235] | "(a) General rule. -- Except in the case of a medical emergency or
except as provided in this section, if a pregnant woman is less than 18
years of age and not emancipated, or if she has been adJudged an incompetent
under 20 Pa. C.S. § 5511 (relating to petition and hearing; examination
by court-appointed physician), a physician shall not perform an abortion
upon her unless, in the case of a woman who is less than 18 years of age,
he first obtains the informed consent both of the pregnant woman and of
one of her parents; or, in the case of a woman who is incompetent, he first
obtains the informed consent of her guardian. In deciding whether to grant
such consent, a pregnant woman's parent or guardian shall consider only
their child's or ward's best interests. In the case of a pregnancy that
is the result of incest, where the father is a party to the incestuous act,
the pregnant woman need only obtain the consent of her mother. |
| [236] | "(b) Unavailability of parent or guardian. -- If both parents have
died or are otherwise unavailable to the physician within a reasonable time
and in a reasonable manner, consent of the pregnant woman's guardian or
guardians shall be sufficient. If the pregnant woman's parents are divorced,
consent of the parent having custody shall be sufficient. If neither any
parent nor a legal guardian is available to the physician within a reasonable
time and in a reasonable manner, consent of any adult person standing in
loco parentis shall be sufficient. |
| [237] | "(c) Petition to the court for consent. -- If both of the parents
or guardians of the pregnant woman refuse to consent to the performance
of an abortion or if she elects not to seek the consent of either of her
parents or of her guardian, the court of common pleas of the judicial district
in which the applicant resides or in which the abortion is sought shall,
upon petition or motion, after an appropriate hearing, authorize a physician
to perform the abortion if the court determines that the pregnant woman
is mature and capable of giving informed consent to the proposed abortion,
and has, in fact, given such consent. |
| [238] | "(d) Court order. -- If the court determines that the pregnant woman
is not mature and capable of giving informed consent or if the pregnant
woman does not claim to be mature and capable of giving informed consent,
the court shall determine whether the performance of an abortion upon her
would be in her best interests. If the court determines that the performance
of an abortion would be in the best interests of the woman, it shall authorize
a physician to perform the abortion. |
| [239] | "(e) Representation in proceedings. -- The pregnant woman may participate
in proceedings in the court on her own behalf and the court may appoint
a guardian ad litem to assist her. The court shall, however, advise her
that she has a right to court appointed counsel, and shall provide her with
such counsel unless she wishes to appear with private counsel or has knowingly
and intelligently waived representation by counsel." |
| [240] | "§ 3207. Abortion Facilities. |
| [241] | "(b) Reports. -- Within 30 days after the effective date of this
chapter, every facility at which abortions are performed shall file, and
update immediately upon any change, a report with the department, containing
the following information: |
| [242] | "(1) Name and address of the facility. |
| [243] | "(2) Name and address of any parent, subsidiary or affiliated organizations,
corporations or associations. |
| [244] | "(3) Name and address of any parent, subsidiary or affiliated organizations,
corporations or associations having contemporaneous commonality of ownership,
beneficial interest, directorship or officership with any other facility. |
| [245] | The information contained in those reports which are filed pursuant to
this subsection by facilities which receive State-appropriated funds during
the 12-calendar-month period immediately preceding a request to inspect
or copy such reports shall be deemed public information. Reports filed by
facilities which do not receive State-appropriated funds shall only be available
to law enforcement officials, the State Board of Medicine and the State
Board of Osteopathic Medicine for use in the performance of their official
duties. Any facility failing to comply with the provisions of this subsection
shall be assessed by the department a fine of $500 for each day it is in
violation hereof." |
| [246] | "§ 3208. Printed Information. |
| [247] | "(a) General Rule. -- The department shall cause to be published
in English, Spanish and Vietnamese, within 60 days after this chapter becomes
law, and shall update on an annual basis, the following easily comprehensible
printed materials: |
| [248] | "(1) Geographically indexed materials designed to inform the woman
of public and private agencies and services available to assist a woman
through pregnancy, upon childbirth and while the child is dependent, including
adoption agencies, which shall include a comprehensive list of the agencies
available, a description of the services they offer and a description of
the manner, including telephone numbers, in which they might be contacted,
or, at the option of the department, printed materials including a toll-free
24-hour a day telephone number which may be called to obtain, orally, such
a list and description of agencies in the locality of the caller and of
the services they offer. The materials shall provide information on the
availability of medical assistance benefits for prenatal care, childbirth
and neonatal care, and state that it is unlawful for any individual to coerce
a woman to undergo abortion, that any physician who performs an abortion
upon a woman without obtaining her informed consent or without according
her a private medical consultation may be liable to her for damages in a
civil action at law, that the father of a child is liable to assist in the
support of that child, even in instances where the father has offered to
pay for an abortion and that the law permits adoptive parents to pay costs
of prenatal care, childbirth and neonatal care. |
| [249] | "(2) Materials designed to inform the woman of the probable anatomical
and physiological characteristics of the unborn child at two-week gestational
increments from fertilization to full term, including pictures representing
the development of unborn children at two-week gestational increments, and
any relevant information on the possibility of the unborn child's survival;
provided that any such pictures or drawings must contain the dimensions
of the fetus and must be realistic and appropriate for the woman's stage
of pregnancy. The materials shall be objective, non-judgmental and designed
to convey only accurate scientific information about the unborn child at
the various gestational ages. The material shall also contain objective
information describing the methods of abortion procedures commonly employed,
the medical risks commonly associated with each such procedure, and the
medical risks commonly associated with carrying a child to term. |
| [250] | "(b) Format. -- The materials shall be printed in a typeface large
enough to be clearly legible. |
| [251] | "(c) Free distribution. -- The materials required under this section
shall be available at no cost from the department upon request and in appropriate
number to any person, facility or hospital." |
| [252] | "§ 3209. Spousal Notice. |
| [253] | "(a) Spousal notice required. -- In order to further the Commonwealth's
interest in promoting the integrity of the marital relationship and to protect
a spouse's interests in having children within marriage and in protecting
the prenatal life of that spouse's child, no physician shall perform an
abortion on a married woman, except as provided in subsections (b) and (c),
unless he or she has received a signed statement, which need not be notarized,
from the woman upon whom the abortion is to be performed, that she has notified
her spouse that she is about to undergo an abortion. The statement shall
bear a notice that any false statement made therein is punishable by law. |
| [254] | "(b) Exceptions. -- The statement certifying that the notice required
by subsection (a) has been given need not be furnished where the woman provides
the physician a signed statement certifying at least one of the following: |
| [255] | "(1) Her spouse is not the father of the child. |
| [256] | "(2) Her spouse, after diligent effort, could not be located. |
| [257] | "(3) The pregnancy is a result of spousal sexual assault as described
in section 3128 (relating to spousal sexual assault), which has been reported
to a law enforcement agency having the requisite jurisdiction. |
| [258] | "(4) The woman has reason to believe that the furnishing of notice
to her spouse is likely to result in the infliction of bodily injury upon
her by her spouse or by another individual. |
| [259] | Such statement need not be notarized, but shall bear a notice that any
false statements made therein are punishable by law. |
| [260] | "(c) Medical emergency. -- The requirements of subsection (a) shall
not apply in case of a medical emergency. |
| [261] | "(d) Forms. -- The department shall cause to be published, forms
which may be utilized for purposes of providing the signed statements required
by subsections (a) and (b). The department shall distribute an adequate
supply of such forms to all abortion facilities in this Commonwealth. |
| [262] | "(e) Penalty; civil action. -- Any physician who violates the provisions
of this section is guilty of unprofessional conduct,' and his or her license
for the practice of medicine and surgery shall be subject to suspension
or revocation in accordance with procedures provided under the act of October
5, 1978 (P.L. 1109, No. 261), known as the Osteopathic Medical Practice
Act, the act of December 20, 1985 (P.L. 457, No. 112), known as the Medical
Practice Act of 1985, or their successor acts. In addition, any physician
who knowingly violates the provisions of this section shall be civilly liable
to the spouse who is the father of the aborted child for any damages caused
thereby and for punitive damages in the amount of $5,000, and the court
shall award a prevailing plaintiff a reasonable attorney fee as part of
costs." |
| [263] | "§ 3214. Reporting. |
| [264] | "(a) General rule. -- For the purpose of promotion of maternal health
and life by adding to the sum of medical and public health knowledge through
the compilation of relevant data, and to promote the Commonwealth's interest
in protection of the unborn child, a report of each abortion performed shall
be made to the department on forms prescribed by it. The report forms shall
not identify the individual patient by name and shall include the following
information: |
| [265] | "(1) Identification of the physician who performed the abortion,
the Concurring physician as required by section 3211(c)(2) (relating to
abortion on unborn child of 24 or more weeks gestational age), the second
physician as required by section 3211(c)(5) and the facility where the abortion
was performed and of the referring physician, agency or service, if any. |
| [266] | "(2) The county and state in which the woman resides. |
| [267] | "(3) The woman's age. |
| [268] | "(4) The number of prior pregnancies and prior abortions of the woman. |
| [269] | "(5) The gestational age of the unborn child at the time of the abortion. |
| [270] | "(6) The type of procedure performed or prescribed and the date of
the abortion. |
| [271] | "(7) Pre-existing medical conditions of the woman which would complicate
pregnancy, if any, and if known, any medical complication which resulted
from the abortion itself. |
| [272] | "(8) The basis for the medical judgment of the physician who performed
the abortion that the abortion was necessary to prevent either the death
of the pregnant woman or the substantial and irreversible impairment of
a major bodily function of the woman, where an abortion has been performed
pursuant to section 3211(b)(1). |
| [273] | "(9) The weight of the aborted child for any abortion performed pursuant
to section 3211(b)(1). |
| [274] | "(10) Basis for any medical judgment that a medical emergency existed
which excused the physician from compliance with any provision of this chapter. |
| [275] | "(11) The information required to be reported under section 3210(a)
(relating to determination of gestational age). |
| [276] | "(12) Whether the abortion was performed upon a married woman and,
if so, whether notice to her spouse was given. If no notice to her spouse
was given, the report shall also indicate the reason for failure to provide
notice. |
| [277] | "(f) Report by facility. -- Every facility in which an abortion is
performed within this Commonwealth during any quarter year shall file with
the department a report showing the total number of abortions performed
within the hospital or other facility during that quarter year. This report
shall also show the total abortions performed in each trimester of pregnancy.
Any report shall be available for public inspection and copying only if
the facility receives State-appropriated funds within the 12-calendar-month
period immediately preceding the filing of the report. These reports shall
be submitted on a form prescribed by the department which will enable a
facility to indicate whether or not it is receiving State-appropriated funds.
If the facility indicates on the form that it is not receiving State-appropriated
funds, the department shall regard its report as confidential unless it
receives other evidence which causes it to conclude that the facility receives
State-appropriated funds." |
| [278] | JUSTICE STEVENS, Concurring in part and Dissenting in part. |
| [279] | The portions of the Court's opinion that I have joined are more important
than those with which I disagree. I shall therefore first comment on significant
areas of agreement, and then explain the limited character of my disagreement. |
| [280] | I |
| [281] | The Court is unquestionably correct in concluding that the doctrine of
stare decisis has controlling significance in a case of this kind, notwithstanding
an individual Justice's concerns about the merits. *fn1
The central holding of Roe v. Wade, 410 U.S. 113 (1973), has been a "part
of our law" for almost two decades. Planned Parenthood of Central Mo.
v. Danforth, 428 U.S. 52, 101 (1976) (STEVENS, J., Concurring in part and
Dissenting in part). It was a natural sequel to the protection of individual
liberty established in Griswold v. Connecticut, 381 U.S. 479 (1965). See
also Carey v. Population Services Int'l, 431 U.S. 678, 687, 702 (1977) (WHITE,
J., Concurring in part and Concurring in result). The societal costs of
overruling Roe at this late date would be enormous. Roe is an integral part
of a correct understanding of both the concept of liberty and the basic
equality of men and women. |
| [282] | Stare decisis also provides a sufficient basis for my agreement with the
joint opinion's reaffirmation of Roe 's post-viability analysis. Specifically,
I accept the proposition that "if the State is interested in protecting
fetal life after viability, it may go so far as to proscribe abortion during
that period, except when it is necessary to preserve the life or health
of the mother." 410 U.S., at 163-164; see ante, at 36-37. |
| [283] | I also accept what is implicit in the Court's analysis, namely, a reaffirmation
of Roe 's explanation of why the State's obligation to protect the life
or health of the mother must take precedence over any duty to the unborn.
The Court in Roe carefully considered, and rejected, the State's argument
"that the fetus is a 'person' within the language and meaning of the
Fourteenth Amendment." 410 U.S., at 156. After analyzing the usage
of "person" in the Constitution, the Court concluded that that
word "has application only postnatally." Id., at 157. Commenting
on the contingent property interests of the unborn that are generally represented
by guardians ad litem, the Court noted: "Perfection of the interests
involved, again, has generally been contingent upon live birth. In short,
the unborn have never been recognized in the law as persons in the whole
sense." Id., at 162. Accordingly, an abortion is not "the termination
of life entitled to Fourteenth Amendment protection." Id., at 159.
From this holding, there was no Dissent, see id., at 173; indeed, no member
of the Court has ever questioned this fundamental proposition. Thus, as
a matter of federal constitutional law, a developing organism that is not
yet a "person" does not have what is sometimes described as a
"right to life." *fn2
This has been and, by the Court's holding today, remains a fundamental premise
of our constitutional law governing reproductive autonomy. |
| [284] | II |
| [285] | My disagreement with the joint opinion begins with its understanding of
the trimester framework established in Roe. Contrary to the suggestion of
the joint opinion, ante, at 33, it is not a "contradiction" to
recognize that the State may have a legitimate interest in potential human
life and, at the same time, to conclude that that interest does not justify
the regulation of abortion before viability (although other interests, such
as maternal health, may). The fact that the State's interest is legitimate
does not tell us when, if ever, that interest outweighs the pregnant woman's
interest in personal liberty. It is appropriate, therefore, to consider
more carefully the nature of the interests at stake. |
| [286] | First, it is clear that, in order to be legitimate, the State's interest
must be secular; consistent with the First Amendment the State may not promote
a theological or sectarian interest. See Thornburgh v. American College
of Obstetricians and Gynecologists, 476 U.S. 747, 778 (1986) (STEVENS, J.,
Concurring); see generally Webster v. Reproductive Health Services, 492
U.S. 490, 563-572 (1989) (STEVENS, J., Concurring in part and Dissenting
in part). Moreover, as discussed above, the state interest in potential
human life is not an interest in loco parentis, for the fetus is not a person. |
| [287] | Identifying the State's interests -- which the States rarely articulate
with any precision -- makes clear that the interest in protecting potential
life is not grounded in the Constitution. It is, instead, an indirect interest
supported by both humanitarian and pragmatic concerns. Many of our citizens
believe that any abortion reflects an unacceptable disrespect for potential
human life and that the performance of more than a million abortions each
year is intolerable; many find third-trimester abortions performed when
the fetus is approaching personhood particularly offensive. The State has
a legitimate interest in minimizing such offense. The State may also have
a broader interest in expanding the population, *fn3
believing society would benefit from the services of additional productive
citizens -- or that the potential human lives might include the occasional
Mozart or Curie. These are the kinds of concerns that comprise the State's
interest in potential human life. |
| [288] | In counterpoise is the woman's constitutional interest in liberty. One
aspect of this liberty is a right to bodily integrity, a right to control
one's person. See e.g., Rochin v. California, 342 U.S. 165 (1952); Skinner
v. Oklahoma, 316 U.S. 535 (1942). This right is neutral on the question
of abortion: The Constitution would be equally offended by an absolute requirement
that all women undergo abortions as by an absolute prohibition on abortions.
"Our whole constitutional heritage rebels at the thought of giving
government the power to control men's minds." Stanley v. Georgia, 394
U.S. 557, 565 (1969). The same holds true for the power to control women's
bodies. |
| [289] | The woman's constitutional liberty interest also involves her freedom
to decide matters of the highest privacy and the most personal nature. Cf.
Whalen v. Roe, 429 U.S. 589, 598-600 (1977). A woman considering abortion
faces "a difficult choice having serious and personal consequences
of major importance to her own future -- perhaps to the salvation of her
own immortal soul." Thornburgh, 476 U.S., at 781. The authority to
make such traumatic and yet empowering decisions is an element of basic
human dignity. As the joint opinion so eloquently demonstrates, a woman's
decision to terminate her pregnancy is nothing less than a matter of conscience. |
| [290] | Weighing the State's interest in potential life and the woman's liberty
interest, I agree with the joint opinion that the State may "'expres
a preference for normal childbirth,'" that the State may take steps
to ensure that a woman's choice "is thoughtful and informed,"
and that "States are free to enact laws to provide a reasonable framework
for a woman to make a decision that has such profound and lasting meaning."
Ante, at 30. Serious questions arise, however, when a State attempts to
"persuade the woman to choose childbirth over abortion." Ante,
at 36. Decisional autonomy must limit the State's power to inject into a
woman's most personal deliberations its own views of what is best. The State
may promote its preferences by funding childbirth, by creating and maintaining
alternatives to abortion, and by espousing the virtues of family; but it
must respect the individual's freedom to make such judgments. |
| [291] | This theme runs throughout our decisions concerning reproductive freedom.
In general, Roe 's requirement that restrictions on abortions before viability
be justified by the State's interest in maternal health has prevented States
from interjecting regulations designed to influence a woman's decision.
Thus, we have upheld regulations of abortion that are not efforts to sway
or direct a woman's choice but rather are efforts to enhance the deliberative
quality of that decision or are neutral regulations on the health aspects
of her decision. We have, for example, upheld regulations requiring written
informed consent, see Planned Parenthood of Central Mo. v. Danforth, 428
U.S. 52 (1976); limited recordkeeping and reporting, see ibid. ; and pathology
reports, see Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft,
462 U.S. 476 (1983); as well as various licensing and qualification provisions,
see e.g., Roe, 410 U.S., at 150; Simopoulos v. Virginia, 462 U.S. 506 (1983).
Conversely, we have consistently rejected state efforts to prejudice a woman's
choice, either by limiting the information available to her, see Bigelow
v. Virginia, 421 U.S. 809 (1975), or by "requiring the delivery of
information designed 'to influence the woman's informed choice between abortion
or childbirth.'" Thornburgh, 476 U.S., at 760; see also Akron v. Akron
Center for Reproductive Health, Inc., 462 U.S. 416, 442-449 (1983). |
| [292] | In my opinion, the principles established in this long line of cases and
the wisdom reflected in Justice Powell's opinion for the Court in Akron
(and followed by the Court just six years ago in Thornburgh) should govern
our decision today. Under these principles, §§ 3205(a)(2)(i)-(iii) of the
Pennsylvania statute are unconstitutional. Those sections require a physician
or counselor to provide the woman with a range of materials clearly designed
to persuade her to choose not to undergo the abortion. While the State is
free, pursuant to § 3208 of the Pennsylvania law, to produce and disseminate
such material, the State may not inject such information into the woman's
deliberations just as she is weighing such an important choice. |
| [293] | Under this same analysis, §§ 3205(a)(1)(i) and (iii) of the Pennsylvania
statute are constitutional. Those sections, which require the physician
to inform a woman of the nature and risks of the abortion procedure and
the medical risks of carrying to term, are neutral requirements comparable
to those imposed in other medical procedures. Those sections indicate no
effort by the State to influence the woman's choice in any way. If anything,
such requirements enhance, rather than skew, the woman's decisionmaking. |
| [294] | III |
| [295] | The 24-hour waiting period required by §§ 3205(a)(1)-(2) of the Pennsylvania
statute raises even more serious concerns. Such a requirement arguably furthers
the State's interests in two ways, neither of which is constitutionally
permissible. |
| [296] | First, it may be argued that the 24-hour delay is justified by the mere
fact that it is likely to reduce the number of abortions, thus furthering
the State's interest in potential life. But such an argument would justify
any form of coercion that placed an obstacle in the woman's path. The State
cannot further its interests by simply wearing down the ability of the pregnant
woman to exercise her constitutional right. |
| [297] | Second, it can more reasonably be argued that the 24-hour delay furthers
the State's interest in ensuring that the woman's decision is informed and
thoughtful. But there is no evidence that the mandated delay benefits women
or that it is necessary to enable the physician to convey any relevant information
to the patient. The mandatory delay thus appears to rest on outmoded and
unacceptable assumptions about the decisionmaking capacity of women. While
there are well-established and consistently maintained reasons for the State
to view with skepticism the ability of minors to make decisions, see Hodgson
v. Minnesota, 497 U.S. 417, 449 (1990), *fn4
none of those reasons applies to an adult woman's decisionmaking ability.
Just as we have left behind the belief that a woman must consult her husband
before undertaking serious matters, see ante, at 54-57, so we must reject
the notion that a woman is less capable of deciding matters of gravity.
Cf. Reed v. Reed, 404 U.S. 71 (1971). |
| [298] | In the alternative, the delay requirement may be premised on the belief
that the decision to terminate a pregnancy is presumptively wrong. This
premise is illegitimate. Those who disagree vehemently about the legality
and morality of abortion agree about one thing: The decision to terminate
a pregnancy is profound and difficult. No person undertakes such a decision
lightly -- and States may not presume that a woman has failed to reflect
adequately merely because her Conclusion differs from the State's preference.
A woman who has, in the privacy of her thoughts and conscience, weighed
the options and made her decision cannot be forced to reconsider all, simply
because the State believes she has come to the wrong Conclusion. *fn5 |
| [299] | Part of the constitutional liberty to choose is the equal dignity to which
each of us is entitled. A woman who decides to terminate her pregnancy is
entitled to the same respect as a woman who decides to carry the fetus to
term. The mandatory waiting period denies women that equal respect. |
| [300] | IV |
| [301] | In my opinion, a correct application of the "undue burden" standard
leads to the same Conclusion concerning the constitutionality of these requirements.
A state-imposed burden on the exercise of a constitutional right is measured
both by its effects and by its character: A burden may be "undue"
either because the burden is too severe or because it lacks a legitimate,
rational justification. *fn6 |
| [302] | The 24-hour delay requirement fails both parts of this test. The findings
of the District Court establish the severity of the burden that the 24-hour
delay imposes on many pregnant women. Yet even in those cases in which the
delay is not especially onerous, it is, in my opinion, "undue"
because there is no evidence that such a delay serves a useful and legitimate
purpose. As indicated above, there is no legitimate reason to require a
woman who has agonized over her decision to leave the clinic or hospital
and return again another day. While a general requirement that a physician
notify her patients about the risks of a proposed medical procedure is appropriate,
a rigid requirement that all patients wait 24 hours or (what is true in
practice) much longer to evaluate the significance of information that is
either common knowledge or irrelevant is an irrational and, therefore, "undue"
burden. |
| [303] | The counseling provisions are similarly infirm. Whenever government commands
private citizens to speak or to listen, careful review of the justification
for that command is particularly appropriate. In this case, the Pennsylvania
statute directs that counselors provide women seeking abortions with information
concerning alternatives to abortion, the availability of medical assistance
benefits, and the possibility of child-support payments. §§ 3205(a)(2)(i)-(iii).
The statute requires that this information be given to all women seeking
abortions, including those for whom such information is clearly useless,
such as those who are married, those who have undergone the procedure in
the past and are fully aware of the options, and those who are fully convinced
that abortion is their only reasonable option. Moreover, the statute requires
physicians to inform all of their patients of "the probable gestational
age of the unborn child." § 3205(a)(1)(ii). This information is of
little decisional value in most cases, because 90% of all abortions are
performed during the first trimester *fn7
when fetal age has less relevance than when the fetus nears viability. Nor
can the information required by the statute be justified as relevant to
any "philosophic" or "social" argument, ante, at 30,
either favoring or disfavoring the abortion decision in a particular case.
In light of all of these facts, I conclude that the information requirements
in § 3205(a)(1)(ii) and §§ 3205(a)(2)(i)-(iii) do not serve a useful purpose
and thus constitute an unnecessary -- and therefore undue -- burden on the
woman's constitutional liberty to decide to terminate her pregnancy. |
| [304] | Accordingly, while I disagree with Parts IV, V-B, and V-D of the joint
opinion, *fn8 I join the remainder
of the Court's opinion. |
| [305] | JUSTICE BLACKMUN, Concurring in part, Concurring in the judgment in part,
and Dissenting in part. |
| [306] | I join parts I, II, III, V-A, V-C, and VI of the joint opinion of JUSTICES
O'CONNOR, KENNEDY, and SOUTER, ante. |
| [307] | Three years ago, in Webster v. Reproductive Health Serv., 492 U.S. 490
(1989), four Members of this Court appeared poised to "cast into darkness
the hopes and visions of every woman in this country" who had come
to believe that the Constitution guaranteed her the right to reproductive
choice. Id., at 557 (BLACKMUN, J., Dissenting). See id., at 499 (opinion
of REHNQUIST, C.J.); id., at 532 (opinion of SCALIA, J.). All that remained
between the promise of Roe and the darkness of the plurality was a single,
flickering flame. Decisions since Webster gave little reason to hope that
this flame would cast much light. See, e.g., Ohio v. Akron Center for Reproductive
Health, 497 U.S. 502, 524 (1990) (opinion of BLACKMUN, J.). But now, just
when so many expected the darkness to fall, the flame has grown bright. |
| [308] | I do not underestimate the significance of today's joint opinion. Yet
I remain steadfast in my belief that the right to reproductive choice is
entitled to the full protection afforded by this Court before Webster. And
I fear for the darkness as four Justices anxiously await the single vote
necessary to extinguish the light. |
| [309] | I |
| [310] | Make no mistake, the joint opinion of JUSTICES O'CONNOR, KENNEDY, and
SOUTER is an act of personal courage and constitutional principle. In contrast
to previous decisions in which JUSTICES O'CONNOR and KENNEDY postponed reconsideration
of Roe v. Wade, 410 U.S. 113 (1973), the authors of the joint opinion today
join JUSTICE STEVENS and me in concluding that "the essential holding
of Roe should be retained and once again reaffirmed." Ante, at 3. In
brief, five Members of this Court today recognize that "the Constitution
protects a woman's right to terminate her pregnancy in its early stages."
Id., at 1. |
| [311] | A fervent view of individual liberty and the force of stare decisis have
led the Court to this Conclusion. Ante, at 11. Today a majority reaffirms
that the Due Process Clause of the Fourteenth Amendment establishes "a
realm of personal liberty which the government may not enter," ante,
at 5 -- a realm whose outer limits cannot be determined by interpretations
of the Constitution that focus only on the specific practices of States
at the time the Fourteenth Amendment was adopted. See ante, at 6. Included
within this realm of liberty is "'the right of the individual, married
or single, to be free from unwarranted governmental intrusion into matters
so fundamentally affecting a person as the decision whether to bear or beget
a child.'" Ante, at 9, quoting Eisenstadt v. Baird, 405 U.S. 438, 453
(1972) (emphasis in original). "These matters, involving the most intimate
and personal choices a person may make in a lifetime, choices central to
personal dignity and autonomy, are central to the liberty protected by the
Fourteenth Amendment." Ante, at 9 (emphasis added). Finally, the Court
today recognizes that in the case of abortion, "the liberty of the
woman is at stake in a sense unique to the human condition and so unique
to the law. The mother who carries a child to full term is subject to anxieties,
to physical constraints, to pain that only she must bear." Ante, at
10. |
| [312] | The Court's reaffirmation of Roe 's central holding is also based on the
force of stare decisis. "No erosion of principle going to liberty or
personal autonomy has left Roe 's central holding a doctrinal remnant; Roe
portends no developments at odds with other precedent for the analysis of
personal liberty; and no changes of fact have rendered viability more or
less appropriate as the point at which the balance of interests tips."
Ante, at 18. Indeed, the Court acknowledges that Roe 's limitation on state
power could not be removed "without serious inequity to those who have
relied upon it or significant damage to the stability of the society governed
by the rule in question." Ante, at 13. In the 19 years since Roe was
decided, that case has shaped more than reproductive planning -- "an
entire generation has come of age free to assume Roe 's concept of liberty
in defining the capacity of women to act in society and to make reproductive
decisions." Ante, at 18. The Court understands that, having "called
the contending sides . . . to end their national division by accepting a
common mandate rooted in the Constitution," ante, at 24, a decision
to overrule Roe "would seriously weaken the Court's capacity to exercise
the judicial power and to function as the Supreme Court of a Nation dedicated
to the rule of law." Ante, at 22. What has happened today should serve
as a model for future Justices and a warning to all who have tried to turn
this Court into yet another political branch. |
| [313] | In striking down the Pennsylvania statute's spousal notification requirement,
the Court has established a framework for evaluating abortion regulations
that responds to the social context of women facing issues of reproductive
choice.1 In determining the burden imposed by the challenged regulation,
the Court inquires whether the regulation's " purpose or effect is
to place a substantial obstacle in the path of a woman seeking an abortion
before the fetus attains viability." Ante, at 35 (emphasis added).
The Court reaffirms: "The proper focus of constitutional inquiry is
the group for whom the law is a restriction, not the group for whom the
law is irrelevant." Ante, at 53-54. Looking at this group, the Court
inquires, based on expert testimony, empirical studies, and common sense,
whether "in a large fraction of the cases in which [the restriction]
is relevant, it will operate as a substantial obstacle to a woman's choice
to undergo an abortion." Id., at 54. "A statute with this purpose
is invalid because the means chosen by the State to further the interest
in potential life must be calculated to inform the woman's free choice,
not hinder it." Ante, at 35. And in applying its test, the Court remains
sensitive to the unique role of women in the decision-making process. Whatever
may have been the practice when the Fourteenth Amendment was adopted, the
Court observes, "women do not lose their constitutionally protected
liberty when they marry. The Constitution protects all individuals, male
or female, married or unmarried, from the abuse of governmental power, even
where that power is employed for the supposed benefit of a member of the
individual's family." Ante, at 57-58.2 |
| [314] | Lastly, while I believe that the joint opinion errs in failing to invalidate
the other regulations, I am pleased that the joint opinion has not ruled
out the possibility that these regulations may be shown to impose an unconstitutional
burden. The joint opinion makes clear that its specific holdings are based
on the insufficiency of the record before it. See, e.g., id., at 43. I am
confident that in the future evidence will be produced to show that "in
a large fraction of the cases in which [these regulations are] relevant,
will operate as a substantial obstacle to a woman's choice to undergo an
abortion." Ante, at 54. |
| [315] | II |
| [316] | Today, no less than yesterday, the Constitution and decisions of this
Court require that a State's abortion restrictions be subjected to the strictest
of judicial scrutiny. Our precedents and the joint opinion's principles
require us to subject all non- de minimis abortion regulations to strict
scrutiny. Under this standard, the Pennsylvania statute's provisions requiring
content-based counseling, a 24-hour delay, informed parental consent, and
reporting of abortion-related information must be invalidated. |
| [317] | A |
| [318] | The Court today reaffirms the long recognized rights of privacy and bodily
integrity. As early as 1891, the Court held, "no right is held more
sacred, or is more carefully guarded by the commonlaw, than the right of
every individual to the possession and control of his own person, free from
all restraint or interference of others . . . ." Union Pacific R. Co.
v. Botsford, 141 U.S. 250, 251 (1891). Throughout this century, this Court
also has held that the fundamental right of privacy protects citizens against
governmental intrusion in such intimate family matters as procreation, childrearing,
marriage, and contraceptive choice. See ante, at 5-6. These cases embody
the principle that personal decisions that profoundly affect bodily integrity,
identity, and destiny should be largely beyond the reach of government.
Eisenstadt, 405 U.S., at 453. In Roe v. Wade, this Court correctly applied
these principles to a woman's right to choose abortion. |
| [319] | State restrictions on abortion violate a woman's right of privacy in two
ways. First, compelled continuation of a pregnancy infringes upon a woman's
right to bodily integrity by imposing substantial physical intrusions and
significant risks of physical harm. During pregnancy, women experience dramatic
physical changes and a wide range of health consequences. Labor and delivery
pose additional health risks and physical demands. In short, restrictive
abortion laws force women to endure physical invasions far more substantial
than those this Court has held to violate the constitutional principle of
bodily integrity in other contexts. See, e.g., Winston v. Lee, 470 U.S.
753 (1985) (invalidating surgical removal of bullet from murder suspect);
Rochin v. California, 342 U.S. 165 (1952) (invalidating stomach-pumping).3 |
| [320] | Further, when the State restricts a woman's right to terminate her pregnancy,
it deprives a woman of the right to make her own decision about reproduction
and family planning -- critical life choices that this Court long has deemed
central to the right to privacy. The decision to terminate or continue a
pregnancy has no less an impact on a woman's life than decisions about contraception
or marriage. 410 U.S., at 153. Because motherhood has a dramatic impact
on a woman's educational prospects, employment opportunities, and self-determination,
restrictive abortion laws deprive her of basic control over her life. For
these reasons, "the decision whether or not to beget or bear a child"
lies at "the very heart of this cluster of constitutionally protected
choices." Carey v. Population Services, Int'l, 431 U.S. 678 (1977). |
| [321] | A State's restrictions on a woman's right to terminate her pregnancy also
implicate constitutional guarantees of gender equality. State restrictions
on abortion compel women to continue pregnancies they otherwise might terminate.
By restricting the right to terminate pregnancies, the State conscripts
women's bodies into its service, forcing women to continue their pregnancies,
suffer the pains of childbirth, and in most instances, provide years of
maternal care. The State does not compensate women for their services; instead,
it assumes that they owe this duty as a matter of course. This assumption
-- that women can simply be forced to accept the "natural" status
and incidents of motherhood -- appears to rest upon a conception of women's
role that has triggered the protection of the Equal Protection Clause. See,
e.g., Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724-726 (1982);
Craig v. Boren, 429 U.S. 190, 198-199 (1976).4 The joint opinion recognizes
that these assumptions about women's place in society "are no longer
consistent with our understanding of the family, the individual, or the
Constitution." Ante, at 55. |
| [322] | B |
| [323] | The Court has held that limitations on the right of privacy are permissible
only if they survive "strict" constitutional scrutiny -- that
is, only if the governmental entity imposing the restriction can demonstrate
that the limitation is both necessary and narrowly tailored to serve a compelling
governmental interest. Griswold v. Connecticut, 381 U.S. 479, 485 (1965).
We have applied this principle specifically in the context of abortion regulations.
Roe v. Wade, 410 U.S., at 155.5 |
| [324] | Roe implemented these principles through a framework that was designed
"to insure that the woman's right to choose not become so subordinate
to the State's interest in promoting fetal life that her choice exists in
theory but not in fact," ante, at 30. Roe identified two relevant State
interests: "an interest in preserving and protecting the health of
the pregnant woman" and an interest in "protecting the potentiality
of human life." 410 U.S., at 162. With respect to the State's interest
in the health of the mother, "the compelling' point . . . is at approximately
the end of the first trimester," because it is at that point that the
mortality rate in abortion approaches that in childbirth. Roe, 410 U.S.,
at 163. With respect to the State's interest in potential life, "the
'compelling' point is at viability," because it is at that point that
the fetus "presumably has the capability of meaningful life outside
the mother's womb." Ibid. In order to fulfill the requirement of narrow
tailoring, "the State is obligated to make a reasonable effort to limit
the effect of its regulations to the period in the trimester during which
its health interest will be furthered." Akron, 462 U.S., at 434. |
| [325] | In my view, application of this analytical framework is no less warranted
than when it was approved by seven Members of this Court in Roe. Strict
scrutiny of state limitations on reproductive choice still offers the most
secure protection of the woman's right to make her own reproductive decisions,
free from state coercion. No majority of this Court has ever agreed upon
an alternative approach. The factual premises of the trimester framework
have not been undermined, see Webster, 492 U.S., at 553 (BLACKMUN, J., Dissenting),
and the Roe framework is far more administrable, and far less manipulable,
than the "undue burden" standard adopted by the joint opinion. |
| [326] | Nonetheless, three criticisms of the trimester framework continue to be
uttered. First, the trimester framework is attacked because its key elements
do not appear in the text of the Constitution. My response to this attack
remains the same as it was in Webster : |
| [327] | "Were this a true concern, we would have to abandon most of our constitutional
jurisprudence. The 'critical elements' of countless constitutional doctrines
nowhere appear in the Constitution's text . . . . The Constitution makes
no mention, for example, of the First Amendment's 'actual malice' standard
for proving certain libels, see New York Times Co. v. Sullivan, 376 U.S.
254 (1964). . . . Similarly, the Constitution makes no mention of the rational-basis
test, or the specific verbal formulations of intermediate and strict scrutiny
by which this Court evaluates claims under the Equal Protection Clause.
The reason is simple. Like the Roe framework, these tests or standards are
not, and do not purport to be, rights protected by the Constitution. Rather,
they are Judge-made methods for evaluating and measuring the strength and
scope of constitutional rights or for balancing the constitutional rights
of individuals against the competing interests of government." 492
U.S., at 548. |
| [328] | The second criticism is that the framework more closely resembles a regulatory
code than a body of constitutional doctrine. Again, my answer remains the
same as in Webster. |
| [329] | "If this were a true and genuine concern, we would have to abandon
vast areas of our constitutional jurisprudence. . . . Are [the distinctions
entailed in the trimester framework] any finer, or more 'regulatory,' than
the distinctions we have often drawn in our First Amendment jurisprudence,
where, for example, we have held that a 'release time' program permitting
public-school students to leave school grounds during school hours receive
religious instruction does not violate the Establishment Clause, even though
a release-time program permitting religious instruction on school grounds
does violate the Clause? Compare Zorach v. Clauson, 343 U.S. 306 (1952),
with Illinois ex rel. McCollum v. Board of Education of School Dist. No.
71, Champaign County, 333 U.S. 203 (1948). . . . Similarly, in a Sixth Amendment
case, the Court held that although an overnight ban on attorney-client communication
violated the constitutionally guaranteed right to counsel, Geders v. United
States, 425 U.S. 80 (1976), that right was not violated when a trial Judge
separated a defendant from his lawyer during a 15-minute recess after the
defendant's direct testimony. Perry v. Leeke, 488 U.S. 272 (1989). That
numerous constitutional doctrines result in narrow differentiations between
similar circumstances does not mean that this Court has abandoned adjudication
in favor of regulation." Id., at 549-550. |
| [330] | The final, and more genuine, criticism of the trimester framework is that
it fails to find the State's interest in potential human life compelling
throughout pregnancy. No member of this Court -- nor for that matter, the
Solicitor General, Tr. of Oral Arg. 42 -- has ever questioned our holding
in Roe that an abortion is not "the termination of life entitled to
Fourteenth Amendment protection." 410 U.S., at 159. Accordingly, a
State's interest in protecting fetal life is not grounded in the Constitution.
Nor, consistent with our Establishment Clause, can it be a theological or
sectarian interest. See Thornburgh, 476 U.S., at 778 (STEVENS, J., Concurring).
It is, instead, a legitimate interest grounded in humanitarian or pragmatic
concerns. See ante, at 4-5 (opinion of STEVENS, J.). |
| [331] | But while a State has "legitimate interests from the outset of the
pregnancy in protecting the health of the woman and the life of the fetus
that may become a child," ante, at 4, legitimate interests are not
enough. To overcome the burden of strict scrutiny, the interests must be
compelling. The question then is how best to accommodate the State's interest
in potential human life with the constitutional liberties of pregnant women.
Again, I stand by the views I expressed in Webster : |
| [332] | "I remain convinced, as six other Members of this Court 16 years
ago were convinced, that the Roe framework, and the viability standard in
particular, fairly, sensibly, and effectively functions to safeguard the
constitutional liberties of pregnant women while recognizing and accommodating
the State's interest in potential human life. The viability line reflects
the biological facts and truths of fetal development; it marks that threshold
moment prior to which a fetus cannot survive separate from the woman and
cannot reasonably and objectively be regarded as a subject of rights or
interests distinct from, or paramount to, those of the pregnant woman. At
the same time, the viability standard takes account of the undeniable fact
that as the fetus evolves into its postnatal form, and as it loses its dependence
on the uterine environment, the State's interest in the fetus' potential
human life, and in fostering a regard for human life in general, becomes
compelling. As a practical matter, because viability follows 'quickening'
-- the point at which a woman feels movement in her womb -- and because
viability occurs no earlier than 23 weeks gestational age, it establishes
an easily applicable standard for regulating abortion while providing a
pregnant woman ample time to exercise her fundamental right with her responsible
physician to terminate her pregnancy." 492 U.S., at 553-554.6 |
| [333] | Roe 's trimester framework does not ignore the State's interest in prenatal
life. Like JUSTICE STEVENS, I agree that the State may take steps to ensure
that a woman's choice "is thoughtful and informed," ante, at 29,
and that "States are free to enact laws to provide a reasonable framework
for a woman to make a decision that has such profound and lasting meaning."
Ante, at 30. But |
| [334] | "serious questions arise when a State attempts to 'persuade the woman
to choose childbirth over abortion.' Ante, at 36. Decisional autonomy must
limit the State's power to inject into a woman's most personal deliberations
its own views of what is best. The State may promote its preferences by
funding childbirth, by creating and maintaining alternatives to abortion,
and by espousing the virtues of family, but it must respect the individual's
freedom to make such judgments." Ante, at 6 (opinion of STEVENS, J.). |
| [335] | As the joint opinion recognizes, "the means chosen by the State to
further the interest in potential life must be calculated to inform the
woman's free choice, not hinder it." Ante, at 35. |
| [336] | In sum, Roe 's requirement of strict scrutiny as implemented through a
trimester framework should not be disturbed. No other approach has gained
a majority, and no other is more protective of the woman's fundamental right.
Lastly, no other approach properly accommodates the woman's constitutional
right with the State's legitimate interests. |
| [337] | C |
| [338] | Application of the strict scrutiny standard results in the invalidation
of all the challenged provisions. Indeed, as this Court has invalidated
virtually identical provisions in prior cases, stare decisis requires that
we again strike them down. |
| [339] | This Court has upheld informed and written consent requirements only where
the State has demonstrated that they genuinely further important health-related
state concerns. See Danforth, 428 U.S., at 65-67. A State may not, under
the guise of securing informed consent, "require the delivery of information
'designed to influence the woman's informed choice between abortion or childbirth.'"
Thornburgh v. American College of Obstetricians & Gynecologists, 476
U.S. 747, 760 (1986), (quoting Akron, 462 U.S., at 443-444). Rigid requirements
that a specific body of information be imparted to a woman in all cases,
regardless of the needs of the patient, improperly intrude upon the discretion
of the pregnant woman's physician and thereby impose an "'undesired
and uncomfortable straitjacket.'" Thornburgh, 476 U.S., at 762 (quoting
Danforth, 428 U.S., at 67, n. 8). |
| [340] | Measured against these principles, some aspects of the Pennsylvania informed-consent
scheme are unconstitutional. While it is unobjectionable for the Commonwealth
to require that the patient be informed of the nature of the procedure,
the health risks of the abortion and of childbirth, and the probable gestational
age of the unborn child, compare §§ 3205(a)(i)-(iii) with Akron, 462 U.S.,
at 446, n. 37, I remain unconvinced that there is a vital state need for
insisting that the information be provided by a physician rather than a
counselor. Id., at 448. The District Court found that the physician-only
requirement necessarily would increase costs to the plaintiff-clinics, costs
that undoubtedly would be passed on to patients. And because trained women
counselors are often more understanding than physicians, and generally have
more time to spend with patients, see A366a-387a, the physician-only disclosure
requirement is not narrowly tailored to serve the Commonwealth's interest
in protecting maternal health. |
| [341] | Sections 3205(a)(2)(i)-(iii) of the Act further requires that the physician
or a qualified non-physician inform the woman that printed materials are
available from the Commonwealth that describe the fetus and provide information
about medical assistance for childbirth, information about child support
from the father, and a list of agencies offering that provide adoption and
other services as alternatives to abortion. Thornburgh invalidated biased
patient-counseling requirements virtually identical to the one at issue
here. What we said of those requirements fully applies in this case: |
| [342] | "the listing of agencies in the printed Pennsylvania form presents
serious problems; it contains names of agencies that well may be out of
step with the needs of the particular woman and thus places the physician
in an awkward position and infringes upon his or her professional responsibilities.
Forcing the physician or counselor to present the materials and the list
to the woman makes him or her in effect an agent of the State in treating
the woman and places his or her imprimatur upon both the materials and the
list. All this is, or comes close to being, state medicine imposed upon
the woman, not the professional medical guidance she seeks, and it officially
structures -- as it obviously was intended to do -- the dialogue between
the woman and her physician. |
| [343] | "The requirements . . . that the woman be advised that medical assistance
benefits may be available, and that the father is responsible for financial
assistance in the support of the child similarly are poorly disguised elements
of discouragement for the abortion decision. Much of this . . ., for many
patients, would be irrelevant and inappropriate. For a patient with a life-threatening
pregnancy, the information' in its very rendition may be cruel as well as
destructive of the physician-patient relationship. As any experienced social
worker or other counselor knows, theoretical financial responsibility often
does not equate with fulfillment . . . . Under the guise of informed consent,
the Act requires the dissemination of information that is not relevant to
such consent, and, thus, it advances no legitimate state interest."
476 U.S., at 763. |
| [344] | "This type of compelled information is the antithesis of informed
consent," id., at 764, and goes far beyond merely describing the general
subject matter relevant to the woman's decision. "That the Commonwealth
does not, and surely would not, compel similar disclosure of every possible
peril of necessary surgery or of simple vaccination, reveals the anti-abortion
character of the statute and its real purpose." Ibid.7 |
| [345] | The 24-hour waiting period following the provision of the foregoing information
is also clearly unconstitutional. The District Court found that the mandatory
24-hour delay could lead to delays in excess of 24 hours, thus increasing
health risks, and that it would require two visits to the abortion provider,
thereby increasing travel time, exposure to further harassment, and financial
cost. Finally, the District Court found that the requirement would pose
especially significant burdens on women living in rural areas and those
women that have difficulty explaining their whereabouts. Ato Pet. for Cert.
in No. 91-902, 380a-382a (hereinafter App.). In Akron this Court invalidated
a similarly arbitrary or inflexible waiting period because, as here, it
furthered no legitimate state interest.8 |
| [346] | As JUSTICE STEVENS insightfully concludes, the mandatory delay rests either
on outmoded or unacceptable assumptions about the decisionmaking capacity
of women or the belief that the decision to terminate the pregnancy is presumptively
wrong. Ante, at 8. The requirement that women consider this obvious and
slanted information for an additional 24 hours contained in these provisions
will only influence the woman's decision in improper ways. The vast majority
of women will know this information -- of the few that do not, it is less
likely that their minds will be changed by this information than it will
be either by the realization that the State opposes their choice or the
need once again to endure abuse and harassment on return to the clinic.
*fn9 |
| [347] | Except in the case of a medical emergency, § 3206 requires a physician
to obtain the informed consent of a parent or guardian before performing
an abortion on an unemancipated minor or an incompetent woman. Based on
evidence in the record, the District Court concluded that, in order to fulfill
the informed-consent requirement, generally accepted medical principles
would require an in-person visit by the parent to the facility. App. 399a.
Although the Court "has recognized that the State has somewhat broader
authority to regulate the activities of children than of adults," the
State nevertheless must demonstrate that there is a " significant state
interest in conditioning an abortion . . . that is not present in the case
of an adult." Danforth, 428 U.S., at 74-75 (emphasis added). The requirement
of an in-person visit would carry with it the risk of a delay of several
days or possibly weeks, even where the parent is willing to consent. While
the State has an interest in encouraging parental involvement in the minor's
abortion decision, § 3206 is not narrowly drawn to serve that interest.
*fn10 |
| [348] | Finally, the Pennsylvania statute requires every facility performing abortions
to report its activities to the Commonwealth. Pennsylvania contends that
this requirement is valid under Danforth, in which this Court held that
recordkeeping and reporting requirements that are reasonably directed to
the preservation of maternal health and that properly respect a patient's
confidentiality are permissible. 428 U.S., at 79-81. The Commonwealth attempts
to justify its required reports on the ground that the public has a right
to know how its tax dollars are spent. A regulation designed to inform the
public about public expenditures does not further the Commonwealth's interest
in protecting maternal health. Accordingly, such a regulation cannot justify
a legally significant burden on a woman's right to obtain an abortion. |
| [349] | The confidential reports concerning the identities and medical judgment
of physicians involved in abortions at first glance may seem valid, given
the State's interest in maternal health and enforcement of the Act. The
District Court found, however, that, notwithstanding the confidentiality
protections, many physicians, particularly those who have previously discontinued
performing abortions because of harassment, would refuse to refer patients
to abortion clinics if their names were to appear on these reports. A447a-448a.
The Commonwealth has failed to show that the name of the referring physician
either adds to the pool of scientific knowledge concerning abortion or is
reasonably related to the Commonwealth's interest in maternal health. I
therefore agree with the District Court's Conclusion that the confidential
reporting requirements are unconstitutional insofar as they require the
name of the referring physician and the basis for his or her medical judgment. |
| [350] | In sum, I would affirm the judgment in No. 91-902 and reverse the judgment
in No. 91-744 and remand the cases for further proceedings. |
| [351] | III |
| [352] | At long last, THE CHIEF JUSTICE admits it. Gone are the contentions that
the issue need not be (or has not been) considered. There, on the first
page, for all to see, is what was expected: "We believe that Roe was
wrongly decided, and that it can and should be overruled consistently with
our traditional approach to stare decisis in constitutional cases."
Post, at 1. If there is much reason to applaud the advances made by the
joint opinion today, there is far more to fear from THE CHIEF JUSTICE's
opinion. |
| [353] | THE CHIEF JUSTICE's criticism of Roe follows from his stunted conception
of individual liberty. While recognizing that the Due Process Clause protects
more than simple physical liberty, he then goes on to construe this Court's
personal-liberty cases as establishing only a laundry list of particular
rights, rather than a principled account of how these particular rights
are grounded in a more general right of privacy. Post, at 9. This constricted
view is reinforced by THE CHIEF JUSTICE's exclusive reliance on tradition
as a source of fundamental rights. He argues that the record in favor of
a right to abortion is no stronger than the record in Michael H. v. Gerald
D., 491 U.S. 110 (1989), where the plurality found no fundamental right
to visitation privileges by an adulterous father, or in Bowers v. Hardwick,
478 U.S. 186 (1986), where the Court found no fundamental right to engage
in homosexual sodomy, or in a case involving the "firing of a gun .
. . into another person's body." Post, at 9-10. In THE CHIEF JUSTICE's
world, a woman considering whether to terminate a pregnancy is entitled
to no more protection than adulterers, murderers, and so-called "sexual
deviates." *fn11 Given THE
CHIEF JUSTICE's exclusive reliance on tradition, people using contraceptives
seem the next likely candidate for his list of outcasts. |
| [354] | Even more shocking than THE CHIEF JUSTICE's cramped notion of individual
liberty is his complete omission of any Discussion of the effects that compelled
childbirth and motherhood have on women's lives. The only expression of
concern with women's health is purely instrumental -- for THE CHIEF JUSTICE,
only women's psychological health is a concern, and only to the extent that
he assumes that every woman who decides to have an abortion does so without
serious consideration of the moral implications of their decision. Post,
at 25-26. In short, THE CHIEF JUSTICE's view of the State's compelling interest
in maternal health has less to do with health than it does with compelling
women to be maternal. |
| [355] | Nor does THE CHIEF JUSTICE give any serious consideration to the doctrine
of stare decisis. For THE CHIEF JUSTICE, the facts that gave rise to Roe
are surprisingly simple: "women become pregnant, there is a point somewhere,
depending on medical technology, where a fetus becomes viable, and women
give birth to children." Ante, at 13. This characterization of the
issue thus allows THE CHIEF JUSTICE quickly to discard the joint opinion's
reliance argument by asserting that "reproductive planning could take
. . . virtually immediate account of a decision overruling Roe." Id.,
at 14 (internal quotations omitted). |
| [356] | THE CHIEF JUSTICE's narrow conception of individual liberty and stare
decisis leads him to propose the same standard of review proposed by the
plurality in Webster. "States may regulate abortion procedures in ways
rationally related to a legitimate state interest. Williamson v. Lee Optical
Co., 348 U.S. 483, 491 (1955); cf. Stanley v. Illinois, 405 U.S. 645, 651-653
(1972)." Post, at 24. THE CHIEF JUSTICE then further weakens the test
by providing an insurmountable requirement for facial challenges: petitioners
must "'show that no set of circumstances exists under which the would
be valid.'" Post, at 30, quoting Ohio v. Akron Center for Reproductive
Health, 497 U.S., at 514. In short, in his view, petitioners must prove
that the statute cannot constitutionally be applied to anyone. Finally,
in applying his standard to the spousal-notification provision, THE CHIEF
JUSTICE contends that the record lacks any "hard evidence" to
support the joint opinion's contention that a "large fraction"
of women who prefer not to notify their husbands involve situations of battered
women and unreported spousal assault. Post, at 31, n. 2. Yet throughout
the explication of his standard, THE CHIEF JUSTICE never explains what hard
evidence is, how large a fraction is required, or how a battered women is
supposed to pursue an as-applied challenge. |
| [357] | Under his standard, States can ban abortion if that ban is rationally
related to a legitimate state interest -- a standard which the United States
calls "deferential, but not toothless." Yet when pressed at oral
argument to describe the teeth, the best protection that the Solicitor General
could offer to women was that a prohibition, enforced by criminal penalties,
with no exception for the life of the mother, "could raise very serious
questions." Tr. of Oral Arg. 49. Perhaps, the Solicitor General offered,
the failure to include an exemption for the life of the mother would be
"arbitrary and capricious." Id., at 49. If, as THE CHIEF JUSTICE
contends, the undue burden test is made out of whole cloth, the so-called
"arbitrary and capricious" limit is the Solicitor General's "new
clothes." |
| [358] | Even if it is somehow "irrational" for a State to require a
woman to risk her life for her child, what protection is offered for women
who become pregnant through rape or incest? Is there anything arbitrary
or capricious about a State's prohibiting the sins of the father from being
visited upon his offspring? *fn12 |
| [359] | But, we are reassured, there is always the protection of the democratic
process. While there is much to be praised about our democracy, our country
since its founding has recognized that there are certain fundamental liberties
that are not to be left to the whims of an election. A woman's right to
reproductive choice is one of those fundamental liberties. Accordingly,
that liberty need not seek refuge at the ballot box. |
| [360] | IV |
| [361] | In one sense, the Court's approach is worlds apart from that of THE CHIEF
JUSTICE and JUSTICE SCALIA. And yet, in another sense, the distance between
the two approaches is short -- the distance is but a single vote. |
| [362] | I am 83 years old. I cannot remain on this Court forever, and when I do
step down, the confirmation process for my successor well may focus on the
issue before us today. That, I regret, may be exactly where the choice between
the two worlds will be made. |
| [363] | CHIEF JUSTICE REHNQUIST, with whom JUSTICE WHITE, JUSTICE SCALIA, and
JUSTICE THOMAS join, Concurring in the judgment in part and Dissenting in
part. |
| [364] | The joint opinion, following its newly-minted variation on stare decisis,
retains the outer shell of Roe v. Wade, 410 U.S. 113 (1973), but beats a
wholesale retreat from the substance of that case. We believe that Roe was
wrongly decided, and that it can and should be overruled consistently with
our traditional approach to stare decisis in constitutional cases. We would
adopt the approach of the plurality in Webster v. Reproductive Health Services,
492 U.S. 490 (1989), and uphold the challenged provisions of the Pennsylvania
statute in their entirety. |
| [365] | I |
| [366] | In ruling on this case below, the Court of Appeals for the Third Circuit
first observed that "this appeal does not directly implicate Roe ;
this case involves the regulation of abortions rather than their outright
prohibition." 947 F.2d 682, 687 (1991). Accordingly, the court directed
its attention to the question of the standard of review for abortion regulations.
In attempting to settle on the correct standard, however, the court confronted
the confused state of this Court's abortion jurisprudence. After considering
the several opinions in Webster v. Reproductive Health Services, (supra)
, and Hodgson v. Minnesota, 497 U.S. 417 (1990), the Court of Appeals concluded
that JUSTICE O'CONNOR's "undue burden" test was controlling, as
that was the narrowest ground on which we had upheld recent abortion regulations.
947 F.2d, at 693-697 ("'When a fragmented court decides a case and
no single rationale explaining the result enjoys the assent of five Justices,
the holding of the Court may be viewed as that position taken by those Members
who concurred in the judgments on the narrowest grounds'" (quoting
Marks v. United States, 430 U.S. 188, 193 (1977) (internal quotation marks
omitted)). Applying this standard, the Court of Appeals upheld all of the
challenged regulations except the one requiring a woman to notify her spouse
of an intended abortion. |
| [367] | In arguing that this Court should invalidate each of the provisions at
issue, petitioners insist that we reaffirm our decision in Roe v. Wade,
supra, in which we held unconstitutional a Texas statute making it a crime
to procure an abortion except to save the life of the mother.1 We agree
with the Court of Appeals that our decision in Roe is not directly implicated
by the Pennsylvania statute, which does not prohibit, but simply regulates,
abortion. But, as the Court of Appeals found, the state of our post- Roe
decisional law dealing with the regulation of abortion is confusing and
uncertain, indicating that a reexamination of that line of cases is in order.
Unfortunately for those who must apply this Court's decisions, the reexamination
undertaken today leaves the Court no less divided than beforehand. Although
they reject the trimester framework that formed the underpinning of Roe,
JUSTICES O'CONNOR, KENNEDY, and SOUTER adopt a revised undue burden standard
to analyze the challenged regulations. We conclude, however, that such an
outcome is an unjustified constitutional compromise, one which leaves the
Court in a position to closely scrutinize all types of abortion regulations
despite the fact that it lacks the power to do so under the Constitution. |
| [368] | In Roe, the Court opined that the State "does have an important and
legitimate interest in preserving and protecting the health of the pregnant
woman, . . . and that it has still another important and legitimate interest
in protecting the potentiality of human life." 410 U.S., at 162 (emphasis
omitted). In the companion case of Doe v. Bolton, 410 U.S. 179 (1973), the
Court referred to its Conclusion in Roe "that a pregnant woman does
not have an absolute constitutional right to an abortion on her demand."
410 U.S., at 189. But while the language and holdings of these cases appeared
to leave States free to regulate abortion procedures in a variety of ways,
later decisions based on them have found considerably less latitude for
such regulations than might have been expected. |
| [369] | For example, after Roe, many States have sought to protect their young
citizens by requiring that a minor seeking an abortion involve her parents
in the decision. Some States have simply required notification of the parents,
while others have required a minor to obtain the consent of her parents.
In a number of decisions, however, the Court has substantially limited the
States in their ability to impose such requirements. With regard to parental
notice requirements, we initially held that a State could require a minor
to notify her parents before proceeding with an abortion. H. L. v. Matheson,
450 U.S. 398, 407-410 (1981). Recently, however, we indicated that a State's
ability to impose a notice requirement actually depends on whether it requires
notice of one or both parents. We concluded that although the Constitution
might allow a State to demand that notice be given to one parent prior to
an abortion, it may not require that similar notice be given to two parents,
unless the State incorporates a judicial bypass procedure in that two-parent
requirement. Hodgson v. Minnesota, supra. |
| [370] | We have treated parental consent provisions even more harshly. Three years
after Roe, we invalidated a Missouri regulation requiring that an unmarried
woman under the age of 18 obtain the consent of one her parents before proceeding
with an abortion. We held that our abortion jurisprudence prohibited the
State from imposing such a "blanket provision . . . requiring the consent
of a parent." Planned Parenthood of Central Mo. v. Danforth, 428 U.S.
52, 74 (1976). In Bellotti v. Baird, 443 U.S. 622 (1979), the Court struck
down a similar Massachusetts parental consent statute. A majority of the
Court indicated, however, that a State could constitutionally require parental
consent, if it alternatively allowed a pregnant minor to obtain an abortion
without parental consent by showing either that she was mature enough to
make her own decision, or that the abortion would be in her best interests.
See id., at 643-644 (plurality opinion); id., at 656-657 (WHITE, J., Dissenting).
In light of Bellotti, we have upheld one parental consent regulation which
incorporated a judicial bypass option we viewed as sufficient, see Planned
Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476 (1983),
but have invalidated another because of our belief that the judicial procedure
did not satisfy the dictates of Bellotti. See Akron v. Akron Center for
Reproductive Health, Inc., 462 U.S. 416, 439-442 (1983). We have never had
occasion, as we have in the parental notice context, to further parse our
parental consent jurisprudence into one-parent and two-parent components. |
| [371] | In Roe, the Court observed that certain States recognized the right of
the father to participate in the abortion decision in certain circumstances.
Because neither Roe nor Doe involved the assertion of any paternal right,
the Court expressly stated that the case did not disturb the validity of
regulations that protected such a right. Roe v. Wade, 410 U.S., at 165,
n. 67. But three years later, in Danforth, the Court extended its abortion
jurisprudence and held that a State could not require that a woman obtain
the consent of her spouse before proceeding with an abortion. Planned Parenthood
of Central Mo. v. Danforth, 428 U.S., at 69-71. |
| [372] | States have also regularly tried to ensure that a woman's decision to
have an abortion is an informed and well-considered one. In Danforth, we
upheld a requirement that a woman sign a consent form prior to her abortion,
and observed that "it is desirable and imperative that [the decision]
be made with full knowledge of its nature and consequences." Id., at
67. Since that case, however, we have twice invalidated state statutes designed
to impart such knowledge to a woman seeking an abortion. In Akron, we held
unconstitutional a regulation requiring a physician to inform a woman seeking
an abortion of the status of her pregnancy, the development of her fetus,
the date of possible viability, the complications that could result from
an abortion, and the availability of agencies providing assistance and information
with respect to adoption and childbirth. Akron v. Akron Center for Reproductive
Health, supra, at 442-445. More recently, in Thornburgh v. American College
of Obstetricians and Gynecologists, 476 U.S. 747 (1986), we struck down
a more limited Pennsylvania regulation requiring that a woman be informed
of the risks associated with the abortion procedure and the assistance available
to her if she decided to proceed with her pregnancy, because we saw the
compelled information as "the antithesis of informed consent."
Id., at 764. Even when a State has sought only to provide information that,
in our view, was consistent with the Roe framework, we concluded that the
State could not require that a physician furnish the information, but instead
had to alternatively allow nonphysician counselors to provide it. Akron
v. Akron Center for Reproductive Health, 462 U.S., at 448-449. In Akron
as well, we went further and held that a State may not require a physician
to wait 24 hours to perform an abortion after receiving the consent of a
woman. Although the State sought to ensure that the woman's decision was
carefully considered, the Court concluded that the Constitution forbade
the State from imposing any sort of delay. Id., at 449-451. |
| [373] | We have not allowed States much leeway to regulate even the actual abortion
procedure. Although a State can require that second-trimester abortions
be performed in outpatient clinics, see Simopoulos v. Virginia, 462 U.S.
506 (1983), we concluded in Akron and Ashcroft that a State could not require
that such abortions be performed only in hospitals. See Akron v. Akron Center
for Reproductive Health, supra, at 437-439; Planned Parenthood Assn. of
Kansas City, Mo., Inc. v. Ashcroft, supra, at 481-482. Despite the fact
that Roe expressly allowed regulation after the first trimester in furtherance
of maternal health, "'present medical knowledge,'" in our view,
could not justify such a hospitalization requirement under the trimester
framework. Akron v. Akron Center for Reproductive Health, supra, at 437
(quoting Roe v. Wade, supra, at 163). And in Danforth, the Court held that
Missouri could not outlaw the saline amniocentesis method of abortion, concluding
that the Missouri Legislature had "failed to appreciate and to consider
several significant facts" in making its decision. 428 U.S., at 77. |
| [374] | Although Roe allowed state regulation after the point of viability to
protect the potential life of the fetus, the Court subsequently rejected
attempts to regulate in this manner. In Colautti v. Franklin, 439 U.S. 379
(1979), the Court struck down a statute that governed the determination
of viability. Id., at 390-397. In the process, we made clear that the trimester
framework incorporated only one definition of viability -- ours -- as we
forbade States from deciding that a certain objective indicator -- "be
it weeks of gestation or fetal weight or any other single factor" --
should govern the definition of viability. Id., at 389. In that same case,
we also invalidated a regulation requiring a physician to use the abortion
technique offering the best chance for fetal survival when performing postviability
abortions. See id., at 397-401; see also Thornburgh v. American College
of Obstetricians and Gynecologists, supra, at 768-769 (invalidating a similar
regulation). In Thornburgh, the Court struck down Pennsylvania's requirement
that a second physician be present at postviability abortions to help preserve
the health of the unborn child, on the ground that it did not incorporate
a sufficient medical emergency exception. Id., at 769-771. Regulations governing
the treatment of aborted fetuses have met a similar fate. In Akron, we invalidated
a provision requiring physicians performing abortions to "insure that
the remains of the unborn child are disposed of in a humane and sanitary
manner." 462 U.S., at 451 (internal quotation marks omitted). |
| [375] | Dissents in these cases expressed the view that the Court was expanding
upon Roe in imposing ever greater restrictions on the States. See Thornburgh
v. American College of Obstetricians and Gynecologists, 476 U.S., at 783
(Burger, C. J., Dissenting) ("The extent to which the Court has departed
from the limitations expressed in Roe is readily apparent"); id., at
814 (WHITE, J., Dissenting) ("The majority indiscriminately strikes
down statutory provisions that in no way contravene the right recognized
in Roe "). And, when confronted with State regulations of this type
in past years, the Court has become increasingly more divided: the three
most recent abortion cases have not commanded a Court opinion. See Ohio
v. Akron Center for Reproductive Health, 497 U.S. 502 (1990); Hodgson v.
Minnesota, 497 U.S. 417 (1990); Webster v. Reproductive Health Services,
492 U.S. 490 (1989). |
| [376] | The task of the Court of Appeals in the present case was obviously complicated
by this confusion and uncertainty. Following Marks v. United States, 430
U.S. 188 (1977), it concluded that in light of Webster and Hodgson, the
strict scrutiny standard enunciated in Roe was no longer applicable, and
that the "undue burden" standard adopted by JUSTICE O'CONNOR was
the governing principle. This state of confusion and disagreement warrants
reexamination of the "fundamental right" accorded to a woman's
decision to abort a fetus in Roe, with its concomitant requirement that
any state regulation of abortion survive "strict scrutiny." See
Payne v. Tennessee, 501 U.S. , , 111 S. Ct. 2597, 115 L. Ed. 2d 720- (1991)
(slip op., at 17-20) (observing that reexamination of constitutional decisions
is appropriate when those decisions have generated uncertainty and failed
to provide clear guidance, because "correction through legislative
action is practically impossible" (internal quotation marks omitted));
Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 546-547,
557 (1985). |
| [377] | We have held that a liberty interest protected under the Due Process Clause
of the Fourteenth Amendment will be deemed fundamental if it is "implicit
in the concept of ordered liberty." Palko v. Connecticut, 302 U.S.
319, 325 (1937). Three years earlier, in Snyder v. Massachusetts, 291 U.S.
97 (1934), we referred to a "principle of Justice so rooted in the
traditions and conscience of our people as to be ranked as fundamental."
Id., at 105; see also Michael H. v. Gerald D., 491 U.S. 110, 122 (1989)
(plurality opinion) (citing the language from Snyder). These expressions
are admittedly not precise, but our decisions implementing this notion of
"fundamental" rights do not afford any more elaborate basis on
which to base such a classification. |
| [378] | In construing the phrase "liberty" incorporated in the Due Process
Clause of the Fourteenth Amendment, we have recognized that its meaning
extends beyond freedom from physical restraint. In Pierce v. Society of
Sisters, 268 U.S. 510 (1925), we held that it included a parent's right
to send a child to private school; in Meyer v. Nebraska, 262 U.S. 390 (1923),
we held that it included a right to teach a foreign language in a parochial
school. Building on these cases, we have held that that the term "liberty"
includes a right to marry, Loving v. Virginia, 388 U.S. 1 (1967); a right
to procreate, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942);
and a right to use contraceptives. Griswold v. Connecticut, 381 U.S. 479
(1965); Eisenstadt v. Baird, 405 U.S. 438 (1972). But a reading of these
opinions makes clear that they do not endorse any all-encompassing "right
of privacy." |
| [379] | In Roe v. Wade, the Court recognized a "guarantee of personal privacy"
which "is broad enough to encompass a woman's decision whether or not
to terminate her pregnancy." 410 U.S., at 152-153. We are now of the
view that, in terming this right fundamental, the Court in Roe read the
earlier opinions upon which it based its decision much too broadly. Unlike
marriage, procreation and contraception, abortion "involves the purposeful
termination of potential life." Harris v. McRae, 448 U.S. 297, 325
(1980). The abortion decision must therefore "be recognized as sui
generis, different in kind from the others that the Court has protected
under the rubric of personal or family privacy and autonomy." Thornburgh
v. American College of Obstetricians and Gynecologists, supra, at 792 (WHITE,
J., Dissenting). One cannot ignore the fact that a woman is not isolated
in her pregnancy, and that the decision to abort necessarily involves the
destruction of a fetus. See Michael H. v. Gerald D., supra, at 124, n. 4
(To look "at the act which is assertedly the subject of a liberty interest
in isolation from its effect upon other people like inquiring whether there
is a liberty interest in firing a gun where the case at hand happens to
involve its discharge into another person's body"). |
| [380] | Nor do the historical traditions of the American people support the view
that the right to terminate one's pregnancy is "fundamental."
The common law which we inherited from England made abortion after "quickening"
an offense. At the time of the adoption of the Fourteenth Amendment, statutory
prohibitions or restrictions on abortion were commonplace; in 1868, at least
28 of the then-37 States and 8 Territories had statutes banning or limiting
abortion. J. Mohr, Abortion in America 200 (1978). By the turn of the century
virtually every State had a law prohibiting or restricting abortion on its
books. By the middle of the present century, a liberalization trend had
set in. But 21 of the restrictive abortion laws in effect in 1868 were still
in effect in 1973 when Roe was decided, and an overwhelming majority of
the States prohibited abortion unless necessary to preserve the life or
health of the mother. Roe v. Wade, 410 U.S., at 139-140; id., at 176-177,
n. 2 (REHNQUIST, J., Dissenting). On this record, it can scarcely be said
that any deeply rooted tradition of relatively unrestricted abortion in
our history supported the classification of the right to abortion as "fundamental"
under the Due Process Clause of the Fourteenth Amendment. |
| [381] | We think, therefore, both in view of this history and of our decided cases
dealing with substantive liberty under the Due Process Clause, that the
Court was mistaken in Roe when it classified a woman's decision to terminate
her pregnancy as a "fundamental right" that could be abridged
only in a manner which withstood "strict scrutiny." In so concluding,
we repeat the observation made in Bowers v. Hardwick, 478 U.S. 186 (1986): |
| [382] | "Nor are we inclined to take a more expansive view of our authority
to discover new fundamental rights imbedded in the Due Process Clause. The
Court is most vulnerable and comes nearest to illegitimacy when it deals
with Judge-made constitutional law having little or no cognizable roots
in the language or design of the Constitution." Id., at 194. |
| [383] | We believe that the sort of constitutionally imposed abortion code of
the type illustrated by our decisions following Roe is inconsistent "with
the notion of a Constitution cast in general terms, as ours is, and usually
speaking in general principles, as ours does." Webster v. Reproductive
Health Services, 492 U.S., at 518 (plurality opinion). The Court in Roe
reached too far when it analogized the right to abort a fetus to the rights
involved in Pierce, Meyer, Loving, and Griswold, and thereby deemed the
right to abortion fundamental. |
| [384] | II |
| [385] | The joint opinion of JUSTICES O'CONNOR, KENNEDY, and SOUTER cannot bring
itself to say that Roe was correct as an original matter, but the authors
are of the view that "the immediate question is not the soundness of
Roe 's resolution of the issue, but the precedential force that must be
accorded to its holding." Ante, at 29. Instead of claiming that Roe
was correct as a matter of original constitutional interpretation, the opinion
therefore contains an elaborate Discussion of stare decisis. This Discussion
of the principle of stare decisis appears to be almost entirely dicta, because
the joint opinion does not apply that principle in dealing with Roe. Roe
decided that a woman had a fundamental right to an abortion. The joint opinion
rejects that view. Roe decided that abortion regulations were to be subjected
to "strict scrutiny" and could be justified only in the light
of "compelling state interests." The joint opinion rejects that
view. Ante, at 29-30; see Roe v. Wade, (supra) , at 162-164. Roe analyzed
abortion regulation under a rigid trimester framework, a framework which
has guided this Court's decisionmaking for 19 years. The joint opinion rejects
that framework. Ante, at 31. |
| [386] | Stare decisis is defined in Black's Law Dictionary as meaning "to
abide by, or adhere to, decided cases." Black's Law Dictionary 1406
(6th ed. 1990). Whatever the "central holding" of Roe that is
left after the joint opinion finishes dissecting it is surely not the result
of that principle. While purporting to adhere to precedent, the joint opinion
instead revises it. Roe continues to exist, but only in the way a storefront
on a western movie set exists: a mere facade to give the illusion of reality.
Decisions following Roe, such as Akron v. Akron Center for Reproductive
Health, Inc., 462 U.S. 416 (1983), and Thornburgh v. American College of
Obstetricians and Gynecologists, 476 U.S. 747 (1986), are frankly overruled
in part under the "undue burden" standard expounded in the joint
opinion. Ante, at 39-42. |
| [387] | In our view, authentic principles of stare decisis do not require that
any portion of the reasoning in Roe be kept intact. " Stare decisis
is not . . . a universal, inexorable command," especially in cases
involving the interpretation of the Federal Constitution. Burnet v. Coronado
Oil & Gas Co., 285 U.S. 393, 405 (1932) (Brandeis, J., Dissenting).
Erroneous decisions in such constitutional cases are uniquely durable, because
correction through legislative action, save for constitutional amendment,
is impossible. It is therefore our duty to reconsider constitutional interpretations
that "depart from a proper understanding" of the Constitution.
Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S., at 557;
see United States v. Scott, 437 U.S. 82, 101 (1978) ("'In cases involving
the Federal Constitution, . . . the Court bows to the lessons of experience
and the force of better reasoning, recognizing that the process of trial
and error, so fruitful in the physical sciences, is appropriate also in
the judicial function.'" (quoting Burnet v. Coronado Oil & Gas
Co., (supra) , at 406-408 (Brandeis, J., Dissenting))); Smith v. Allwright,
321 U.S. 649, 665 (1944). Our constitutional watch does not cease merely
because we have spoken before on an issue; when it becomes clear that a
prior constitutional interpretation is unsound we are obliged to re-examine
the question. See, e.g., West Virginia State Bd. of Education v. Barnette,
319 U.S. 624, 642 (1943); Erie R. Co. v. Tompkins, 304 U.S. 64, 74-78 (1938). |
| [388] | The joint opinion discusses several stare decisis factors which, it asserts,
point toward retaining a portion of Roe. Two of these factors are that the
main "factual underpinning" of Roe has remained the same, and
that its doctrinal foundation is no weaker now than it was in 1973. Ante,
at 14-18. Of course, what might be called the basic facts which gave rise
to Roe have remained the same -- women become pregnant, there is a point
somewhere, depending on medical technology, where a fetus becomes viable,
and women give birth to children. But this is only to say that the same
facts which gave rise to Roe will continue to give rise to similar cases.
It is not a reason, in and of itself, why those cases must be decided in
the same incorrect manner as was the first case to deal with the question.
And surely there is no requirement, in considering whether to depart from
stare decisis in a constitutional case, that a decision be more wrong now
than it was at the time it was rendered. If that were true, the most outlandish
constitutional decision could survive forever, based simply on the fact
that it was no more outlandish later than it was when originally rendered. |
| [389] | Nor does the joint opinion faithfully follow this alleged requirement.
The opinion frankly concludes that Roe and its progeny were wrong in failing
to recognize that the State's interests in maternal health and in the protection
of unborn human life exist throughout pregnancy. Ante, 29-31. But there
is no indication that these components of Roe are any more incorrect at
this juncture than they were at its inception. |
| [390] | The joint opinion also points to the reliance interests involved in this
context in its effort to explain why precedent must be followed for precedent's
sake. Certainly it is true that where reliance is truly at issue, as in
the case of judicial decisions that have formed the basis for private decisions,
"considerations in favor of stare decisis are at their acme."
Payne v. Tennessee, 501 U.S., at , 111 S. Ct. 2597, 115 L. Ed. 2d 720 (slip
op., at 18). But, as the joint opinion apparently agrees, ante, at 13-14,
any traditional notion of reliance is not applicable here. The Court today
cuts back on the protection afforded by Roe, and no one claims that this
action defeats any reliance interest in the disavowed trimester framework.
Similarly, reliance interests would not be diminished were the Court to
go further and acknowledge the full error of Roe, as "reproductive
planning could take virtually immediate account of" this action. Ante,
at 14. |
| [391] | The joint opinion thus turns to what can only be described as an unconventional
-- and unconvincing -- notion of reliance, a view based on the surmise that
the availability of abortion since Roe has led to "two decades of economic
and social developments" that would be undercut if the error of Roe
were recognized. Ibid. The joint opinion's assertion of this fact is undeveloped
and totally conclusory. In fact, one can not be sure to what economic and
social developments the opinion is referring. Surely it is dubious to suggest
that women have reached their "places in society" in reliance
upon Roe, rather than as a result of their determination to obtain higher
education and compete with men in the job market, and of society's increasing
recognition of their ability to fill positions that were previously thought
to be reserved only for men. Ibid. |
| [392] | In the end, having failed to put forth any evidence to prove any true
reliance, the joint opinion's argument is based solely on generalized assertions
about the national psyche, on a belief that the people of this country have
grown accustomed to the Roe decision over the last 19 years and have "ordered
their thinking and living around" it. Ibid. As an initial matter, one
might inquire how the joint opinion can view the "central holding"
of Roe as so deeply rooted in our constitutional culture, when it so casually
uproots and disposes of that same decision's trimester framework. Furthermore,
at various points in the past, the same could have been said about this
Court's erroneous decisions that the Constitution allowed "separate
but equal" treatment of minorities, see Plessy v. Ferguson, 163 U.S.
537 (1896), or that "liberty" under the Due Process Clause protected
"freedom of contract." See Adkins v. Children's Hospital of D.C.,
261 U.S. 525 (1923); Lochner v. New York, 198 U.S. 45 (1905). The "separate
but equal" doctrine lasted 58 years after Plessy, and Lochner 's protection
of contractual freedom lasted 32 years. However, the simple fact that a
generation or more had grown used to these major decisions did not prevent
the Court from correcting its errors in those cases, nor should it prevent
us from correctly interpreting the Constitution here. See Brown v. Board
of Education, 347 U.S. 483 (1954) (rejecting the "separate but equal"
doctrine); West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (overruling
Adkins v. Children's Hospital, (supra) , in upholding Washington's minimum
wage law). |
| [393] | Apparently realizing that conventional stare decisis principles do not
support its position, the joint opinion advances a belief that retaining
a portion of Roe is necessary to protect the "legitimacy" of this
Court. Ante, at 19-27. Because the Court must take care to render decisions
"grounded truly in principle," and not simply as political and
social compromises, ante, at 23, the joint opinion properly declares it
to be this Court's duty to ignore the public criticism and protest that
may arise as a result of a decision. Few would quarrel with this statement,
although it may be doubted that Members of this Court, holding their tenure
as they do during constitutional "good behavior," are at all likely
to be intimidated by such public protests. |
| [394] | But the joint opinion goes on to state that when the Court "resolves
the sort of intensely divisive controversy reflected in Roe and those rare,
comparable cases," its decision is exempt from reconsideration under
established principles of stare decisis in constitutional cases. Ante, at
24. This is so, the joint opinion contends, because in those "intensely
divisive" cases the Court has "called the contending sides of
a national controversy to end their national division by accepting a common
mandate rooted in the Constitution," and must therefore take special
care not to be perceived as "surrendering to political pressure"
and continued opposition. Ante, at 24-25. This is a truly novel principle,
one which is contrary to both the Court's historical practice and to the
Court's traditional willingness to tolerate criticism of its opinions. Under
this principle, when the Court has ruled on a divisive issue, it is apparently
prevented from overruling that decision for the sole reason that it was
incorrect, unless opposition to the original decision has died away. |
| [395] | The first difficulty with this principle lies in its assumption that cases
which are "intensely divisive" can be readily distinguished from
those that are not. The question of whether a particular issue is "intensely
divisive" enough to qualify for special protection is entirely subjective
and dependent on the individual assumptions of the members of this Court.
In addition, because the Court's duty is to ignore public opinion and criticism
on issues that come before it, its members are in perhaps the worst position
to Judge whether a decision divides the Nation deeply enough to justify
such uncommon protection. Although many of the Court's decisions divide
the populace to a large degree, we have not previously on that account shied
away from applying normal rules of stare decisis when urged to reconsider
earlier decisions. Over the past 21 years, for example, the Court has overruled
in whole or in part 34 of its previous constitutional decisions. See Payne
v. Tennessee, (supra) , at , and n. 1 (slip op., at 18-19, and n. 1) (listing
cases). |
| [396] | The joint opinion picks out and discusses two prior Court rulings that
it believes are of the "intensely divisive" variety, and concludes
that they are of comparable dimension to Roe. Ante, at 19-22 (discussing
Lochner v. New York, (supra) , and Plessy v. Ferguson, (supra) ). It appears
to us very odd indeed that the joint opinion chooses as benchmarks two cases
in which the Court chose not to adhere to erroneous constitutional precedent,
but instead enhanced its stature by acknowledging and correcting its error,
apparently in violation of the joint opinion's "legitimacy" principle.
See West Coast Hotel Co. v. Parrish, (supra) ; Brown v. Board of Education,
(supra) . One might also wonder how it is that the joint opinion puts these,
and not others, in the "intensely divisive" category, and how
it assumes that these are the only two lines of cases of comparable dimension
to Roe. There is no reason to think that either Plessy or Lochner produced
the sort of public protest when they were decided that Roe did. There were
undoubtedly large segments of the bench and bar who agreed with the Dissenting
views in those cases, but surely that cannot be what the Court means when
it uses the term "intensely divisive," or many other cases would
have to be added to the list. In terms of public protest, however, Roe,
so far as we know, was unique. But just as the Court should not respond
to that sort of protest by retreating from the decision simply to allay
the concerns of the protesters, it should likewise not respond by determining
to adhere to the decision at all costs lest it seem to be retreating under
fire. Public protests should not alter the normal application of stare decisis,
lest perfectly lawful protest activity be penalized by the Court itself. |
| [397] | Taking the joint opinion on its own terms, we doubt that its distinction
between Roe, on the one hand, and Plessy and Lochner, on the other, withstands
analysis. The joint opinion acknowledges that the Court improved its stature
by overruling Plessy in Brown on a deeply divisive issue. And our decision
in West Coast Hotel, which overruled Adkins v. Children's Hospital, (supra)
, and Lochner, was rendered at a time when Congress was considering President
Franklin Roosevelt's proposal to "reorganize" this Court and enable
him to name six additional Justices in the event that any member of the
Court over the age of 70 did not elect to retire. It is difficult to imagine
a situation in which the Court would face more intense opposition to a prior
ruling than it did at that time, and, under the general principle proclaimed
in the joint opinion, the Court seemingly should have responded to this
opposition by stubbornly refusing to re-examine the Lochner rationale, lest
it lose legitimacy by appearing to "overrule under fire." Ante,
at 25. |
| [398] | The joint opinion agrees that the Court's stature would have been seriously
damaged if in Brown and West Coast Hotel it had dug in its heels and refused
to apply normal principles of stare decisis to the earlier decisions. But
the opinion contends that the Court was entitled to overrule Plessy and
Lochner in those cases, despite the existence of opposition to the original
decisions, only because both the Nation and the Court had learned new lessons
in the interim. This is at best a feebly supported, post hoc rationalization
for those decisions. |
| [399] | For example, the opinion asserts that the Court could justifiably overrule
its decision in Lochner only because the Depression had convinced "most
people" that constitutional protection of contractual freedom contributed
to an economy that failed to protect the welfare of all. Ante, at 19. Surely
the joint opinion does not mean to suggest that people saw this Court's
failure to uphold minimum wage statutes as the cause of the Great Depression!
In any event, the Lochner Court did not base its rule upon the policy judgment
that an unregulated market was fundamental to a stable economy; it simple
believed, erroneously, that "liberty" under the Due Process Clause
protected the "right to make a contract." Lochner v. New York,
198 U.S., at 53. Nor is it the case that the people of this Nation only
discovered the dangers of extreme laissez faire economics because of the
Depression. State laws regulating maximum hours and minimum wages were in
existence well before that time. A Utah statute of that sort enacted in
1896 was involved in our decision in Holden v. Hardy, 169 U.S. 366 (1898),
and other states followed suit shortly afterwards. See, e.g., Muller v.
Oregon, 208 U.S. 412 (1908); Bunting v. Oregon, 243 U.S. 426 (1917). These
statutes were indeed enacted because of a belief on the part of their sponsors
that "freedom of contract" did not protect the welfare of workers,
demonstrating that that belief manifested itself more than a generation
before the Great Depression. Whether "most people" had come to
share it in the hard times of the 1930's is, insofar as anything the joint
opinion advances, entirely speculative. The crucial failing at that time
was not that workers were not paid a fair wage, but that there was no work
available at any wage. |
| [400] | When the Court finally recognized its error in West Coast Hotel, it did
not engage in the post hoc rationalization that the joint opinion attributes
to it today; it did not state that Lochner had been based on an economic
view that had fallen into disfavor, and that it therefore should be overruled.
Chief Justice Hughes in his opinion for the Court simply recognized what
Justice Holmes had previously recognized in his Lochner Dissent, that "the
Constitution does not speak of freedom of contract." West Coast Hotel
Co. v. Parrish, 300 U.S., at 391; Lochner v. New York, (supra) , at 75 (Holmes,
J., Dissenting) (" Constitution is not intended to embody a particular
economic theory, whether of paternalism and the organic relation of the
citizen to the State or of laissez faire "). Although the Court did
acknowledge in the last paragraph of its opinion the state of affairs during
the then-current Depression, the theme of the opinion is that the Court
had been mistaken as a matter of constitutional law when it embraced "freedom
of contract" 32 years previously. |
| [401] | The joint opinion also agrees that the Court acted properly in rejecting
the doctrine of "separate but equal" in Brown. In fact, the opinion
lauds Brown in comparing it to Roe. Ante, at 25. This is strange, in that
under the opinion's "legitimacy" principle the Court would seemingly
have been forced to adhere to its erroneous decision in Plessy because of
its "intensely divisive" character. To us, adherence to Roe today
under the guise of "legitimacy" would seem to resemble more closely
adherence to Plessy on the same ground. Fortunately, the Court did not choose
that option in Brown, and instead frankly repudiated Plessy. The joint opinion
concludes that such repudiation was justified only because of newly discovered
evidence that segregation had the effect of treating one race as inferior
to another. But it can hardly be argued that this was not urged upon those
who decided Plessy, as Justice Harlan observed in his Dissent that the law
at issue "puts the brand of servitude and degradation upon a large
class of our fellow-citizens, our equals before the law." Plessy v.
Ferguson, 163 U.S., at 562 (Harlan, J., Dissenting). It is clear that the
same arguments made before the Court in Brown were made in Plessy as well.
The Court in Brown simply recognized, as Justice Harlan had recognized beforehand,
that the Fourteenth Amendment does not permit racial segregation. The rule
of Brown is not tied to popular opinion about the evils of segregation;
it is a judgment that the Equal Protection Clause does not permit racial
segregation, no matter whether the public might come to believe that it
is beneficial. On that ground it stands, and on that ground alone the Court
was justified in properly concluding that the Plessy Court had erred. |
| [402] | There is also a suggestion in the joint opinion that the propriety of
overruling a "divisive" decision depends in part on whether "most
people" would now agree that it should be overruled. Either the demise
of opposition or its progression to substantial popular agreement apparently
is required to allow the Court to reconsider a divisive decision. How such
agreement would be ascertained, short of a public opinion poll, the joint
opinion does not say. But surely even the suggestion is totally at war with
the idea of "legitimacy" in whose name it is invoked. The Judicial
Branch derives its legitimacy, not from following public opinion, but from
deciding by its best lights whether legislative enactments of the popular
branches of Government comport with the Constitution. The doctrine of stare
decisis is an adjunct of this duty, and should be no more subject to the
vagaries of public opinion than is the basic judicial task. |
| [403] | There are other reasons why the joint opinion's Discussion of legitimacy
is unconvincing as well. In assuming that the Court is perceived as "surrendering
to political pressure" when it overrules a controversial decision,
ante, at 25, the joint opinion forgets that there are two sides to any controversy.
The joint opinion asserts that, in order to protect its legitimacy, the
Court must refrain from overruling a controversial decision lest it be viewed
as favoring those who oppose the decision. But a decision to adhere to prior
precedent is subject to the same criticism, for in such a case one can easily
argue that the Court is responding to those who have demonstrated in favor
of the original decision. The decision in Roe has engendered large demonstrations,
including repeated marches on this Court and on Congress, both in opposition
to and in support of that opinion. A decision either way on Roe can therefore
be perceived as favoring one group or the other. But this perceived dilemma
arises only if one assumes, as the joint opinion does, that the Court should
make its decisions with a view toward speculative public perceptions. If
one assumes instead, as the Court surely did in both Brown and West Coast
Hotel, that the Court's legitimacy is enhanced by faithful interpretation
of the Constitution irrespective of public opposition, such self-engendered
difficulties may be put to one side. |
| [404] | Roe is not this Court's only decision to generate conflict. Our decisions
in some recent capital cases, and in Bowers v. Hardwick, 478 U.S. 186 (1986),
have also engendered demonstrations in opposition. The joint opinion's message
to such protesters appears to be that they must cease their activities in
order to serve their cause, because their protests will only cement in place
a decision which by normal standards of stare decisis should be reconsidered.
Nearly a century ago, Justice David J. Brewer of this Court, in an article
discussing criticism of its decisions, observed that "many criticisms
may be, like their authors, devoid of good taste, but better all sorts of
criticism than no criticism at all." Justice Brewer on "The Nation's
Anchor," 57 Albany L.J. 166, 169 (1898). This was good advice to the
Court then, as it is today. Strong and often misguided criticism of a decision
should not render the decision immune from reconsideration, lest a fetish
for legitimacy penalize freedom of expression. |
| [405] | The end result of the joint opinion's paeans of praise for legitimacy
is the enunciation of a brand new standard for evaluating state regulation
of a woman's right to abortion -- the "undue burden" standard.
As indicated above, Roe v. Wade adopted a "fundamental right"
standard under which state regulations could survive only if they met the
requirement of "strict scrutiny." While we disagree with that
standard, it at least had a recognized basis in constitutional law at the
time Roe was decided. The same cannot be said for the "undue burden"
standard, which is created largely out of whole cloth by the authors of
the joint opinion. It is a standard which even today does not command the
support of a majority of this Court. And it will not, we believe, result
in the sort of "simple limitation," easily applied, which the
joint opinion anticipates. Ante, at 13. In sum, it is a standard which is
not built to last. |
| [406] | In evaluating abortion regulations under that standard, Judges will have
to decide whether they place a "substantial obstacle" in the path
of a woman seeking an abortion. Ante, at 34. In that this standard is based
even more on a Judge's subjective determinations than was the trimester
framework, the standard will do nothing to prevent "Judges from roaming
at large in the constitutional field" guided only by their personal
views. Griswold v. Connecticut, 381 U.S., at 502 (Harlan, J., Concurring
in judgment). Because the undue burden standard is plucked from nowhere,
the question of what is a "substantial obstacle" to abortion will
undoubtedly engender a variety of conflicting views. For example, in the
very matter before us now, the authors of the joint opinion would uphold
Pennsylvania's 24-hour waiting period, concluding that a "particular
burden" on some women is not a substantial obstacle. Ante, at 44. But
the authors would at the same time strike down Pennsylvania's spousal notice
provision, after finding that in a "large fraction" of cases the
provision will be a substantial obstacle. Ante, at 53. And, while the authors
conclude that the informed consent provisions do not constitute an "undue
burden," JUSTICE STEVENS would hold that they do. Ante, at 9-11. |
| [407] | Furthermore, while striking down the spousal notice regulation, the joint
opinion would uphold a parental consent restriction that certainly places
very substantial obstacles in the path of a minor's abortion choice. The
joint opinion is forthright in admitting that it draws this distinction
based on a policy judgment that parents will have the best interests of
their children at heart, while the same is not necessarily true of husbands
as to their wives. Ante, at 53. This may or may not be a correct judgment,
but it is quintessentially a legislative one. The "undue burden"
inquiry does not in any way supply the distinction between parental consent
and spousal consent which the joint opinion adopts. Despite the efforts
of the joint opinion, the undue burden standard presents nothing more workable
than the trimester framework which it discards today. Under the guise of
the Constitution, this Court will still impart its own preferences on the
States in the form of a complex abortion code. |
| [408] | The sum of the joint opinion's labors in the name of stare decisis and
"legitimacy" is this: Roe v. Wade stands as a sort of judicial
Potemkin Village, which may be pointed out to passers by as a monument to
the importance of adhering to precedent. But behind the facade, an entirely
new method of analysis, without any roots in constitutional law, is imported
to decide the constitutionality of state laws regulating abortion. Neither
stare decisis nor "legitimacy" are truly served by such an effort. |
| [409] | We have stated above our belief that the Constitution does not subject
state abortion regulations to heightened scrutiny. Accordingly, we think
that the correct analysis is that set forth by the plurality opinion in
Webster. A woman's interest in having an abortion is a form of liberty protected
by the Due Process Clause, but States may regulate abortion procedures in
ways rationally related to a legitimate state interest. Williamson v. Lee
Optical of Okla., Inc., 348 U.S. 483, 491 (1955); cf. Stanley v. Illinois,
405 U.S. 645, 651-653 (1972). With this rule in mind, we examine each of
the challenged provisions. |
| [410] | III |
| [411] | A |
| [412] | Section 3205 of the Act imposes certain requirements related to the informed
consent of a woman seeking an abortion. 18 Pa. Cons. Stat. § 3205 (1990).
Section 3205(a)(1) requires that the referring or performing physician must
inform a woman contemplating an abortion of (i) the nature of the procedure,
and the risks and alternatives that a reasonable patient would find material;
(ii) the fetus' probable gestational age; and (iii) the medical risks involved
in carrying her pregnancy to term. Section 3205(a)(2) requires a physician
or a nonphysician counselor to inform the woman that (i) the state health
department publishes free materials describing the fetus at different stages
and listing abortion alternatives; (ii) medical assistance benefits may
be available for prenatal, childbirth, and neonatal care; and (iii) the
child's father is liable for child support. The Act also imposes a 24-hour
waiting period between the time that the woman receives the required information
and the time that the physician is allowed to perform the abortion. See
Appendix, ante, at 61-63. |
| [413] | This Court has held that it is certainly within the province of the States
to require a woman's voluntary and informed consent to an abortion. See
Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S.,
at 760. Here, Pennsylvania seeks to further its legitimate interest in obtaining
informed consent by ensuring that each woman "is aware not only of
the reasons for having an abortion, but also of the risks associated with
an abortion and the availability of assistance that might make the alternative
of normal childbirth more attractive than it might otherwise appear."
Id., at 798-799 (WHITE, J., Dissenting). |
| [414] | We conclude that this provision of the statute is rationally related to
the State's interest in assuring that a woman's consent to an abortion be
a fully informed decision. |
| [415] | Section 3205(a)(1) requires a physician to disclose certain information
about the abortion procedure and its risks and alternatives. This requirement
is certainly no large burden, as the Court of Appeals found that "the
record shows that the clinics, without exception, insist on providing this
information to women before an abortion is performed." 947 F.2d, at
703. We are of the view that this information "clearly is related to
maternal health and to the State's legitimate purpose in requiring informed
consent." Akron v. Akron Center for Reproductive Health, 462 U.S.,
at 446. An accurate description of the gestational age of the fetus and
of the risks involved in carrying a child to term helps to further both
those interests and the State's legitimate interest in unborn human life.
See id., at 445-446, n. 37 (required disclosure of gestational age of the
fetus "certainly is not objectionable"). Although petitioners
contend that it is unreasonable for the State to require that a physician,
as opposed to a nonphysician counselor, disclose this information, we agree
with the Court of Appeals that a State "may rationally decide that
physicians are better qualified than counselors to impart this information
and answer questions about the medical aspects of the available alternatives."
947 F.2d, at 704. |
| [416] | Section 3205(a)(2) compels the disclosure, by a physician or a counselor,
of information concerning the availability of paternal child support and
state-funded alternatives if the woman decides to proceed with her pregnancy.
Here again, the Court of Appeals observed that "the record indicates
that most clinics already require that a counselor consult in person with
the woman about alternatives to abortion before the abortion is performed."
Id., at 704-705. And petitioners do not claim that the information required
to be disclosed by statute is in any way false or inaccurate; indeed, the
Court of Appeals found it to be "relevant, accurate, and non-inflammatory."
Id., at 705. We conclude that this required presentation of "balanced
information" is rationally related to the State's legitimate interest
in ensuring that the woman's consent is truly informed, Thornburgh v. American
College of Obstetricians and Gynecologists, 476 U.S., at 830 (O'CONNOR,
J., Dissenting), and in addition furthers the State's interest in preserving
unborn life. That the information might create some uncertainty and persuade
some women to forgo abortions does not lead to the Conclusion that the Constitution
forbids the provision of such information. Indeed, it only demonstrates
that this information might very well make a difference, and that it is
therefore relevant to a woman's informed choice. Cf. id., at 801 (WHITE,
J., Dissenting) ("The ostensible objective of Roe v. Wade is not maximizing
the number of abortions, but maximizing choice"). We acknowledge that
in Thornburgh this Court struck down informed consent requirements similar
to the ones at issue here. See id., at 760-764. It is clear, however, that
while the detailed framework of Roe led to the Court's invalidation of those
informational requirements, they "would have been sustained under any
traditional standard of judicial review, . . . or for any other surgical
procedure except abortion." Webster v. Reproductive Health Services,
492 U.S., at 517 (plurality opinion) (citing Thornburgh v. American College
of Obstetricians and Gynecologists, 476 U.S., at 802 (WHITE, J., Dissenting);
id., at 783 (Burger, C. J., Dissenting)). In light of our rejection of Roe
's "fundamental right" approach to this subject, we do not regard
Thornburgh as controlling. |
| [417] | For the same reason, we do not feel bound to follow this Court's previous
holding that a State's 24-hour mandatory waiting period is unconstitutional.
See Akron v. Akron Center for Reproductive Health, 462 U.S., at 449-451.
Petitioners are correct that such a provision will result in delays for
some women that might not otherwise exist, therefore placing a burden on
their liberty. But the provision in no way prohibits abortions, and the
informed consent and waiting period requirements do not apply in the case
of a medical emergency. See 18 Pa. Cons. Stat. §§ 3205(a), (b) (1990). We
are of the view that, in providing time for reflection and reconsideration,
the waiting period helps ensure that a woman's decision to abort is a well-considered
one, and reasonably furthers the State's legitimate interest in maternal
health and in the unborn life of the fetus. It "is surely a small cost
to impose to ensure that the woman's decision is well considered in light
of its certain and irreparable consequences on fetal life, and the possible
effects on her own." Id., at 474 (O'CONNOR, J., Dissenting). |
| [418] | B |
| [419] | In addition to providing her own informed consent, before an unemancipated
woman under the age of 18 may obtain an abortion she must either furnish
the consent of one of her parents, or must opt for the judicial procedure
that allows her to bypass the consent requirement. Under the judicial bypass
option, a minor can obtain an abortion if a state court finds that she is
capable of giving her informed consent and has indeed given such consent,
or determines that an abortion is in her best interests. Records of these
court proceedings are kept confidential. The Act directs the state trial
court to render a decision within three days of the woman's application,
and the entire procedure, including appeal to Pennsylvania Superior Court,
is to last no longer than eight business days. The parental consent requirement
does not apply in the case of a medical emergency. 18 Pa. Cons. Stat. §
3206 (1990). See Appendix, ante, at 64-65. |
| [420] | This provision is entirely consistent with this Court's previous decisions
involving parental consent requirements. See Planned Parenthood Association
of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476 (1983) (upholding parental
consent requirement with a similar judicial bypass option); Akron v. Akron
Center for Reproductive Health, supra, at 439-440 (approving of parental
consent statutes that include a judicial bypass option allowing a pregnant
minor to "demonstrate that she is sufficiently mature to make the abortion
decision herself or that, despite her immaturity, an abortion would be in
her best interests"); Bellotti v. Baird, 443 U.S. 622 (1979). |
| [421] | We think it beyond dispute that a State "has a strong and legitimate
interest in the welfare of its young citizens, whose immaturity, inexperience,
and lack of judgment may sometimes impair their ability to exercise their
rights wisely." Hodgson v. Minnesota, 497 U.S., at 444 (opinion of
STEVENS, J.). A requirement of parental consent to abortion, like myriad
other restrictions placed upon minors in other contexts, is reasonably designed
to further this important and legitimate state interest. In our view, it
is entirely "rational and fair for the State to conclude that, in most
instances, the family will strive to give a lonely or even terrified minor
advice that is both compassionate and mature." Ohio v. Akron Center
for Reproductive Health, 497 U.S., at 520 (opinion of KENNEDY, J.); see
also Planned Parenthood of Central Mo. v. Danforth, 428 U.S., at 91 (Stewart,
J., Concurring) ("There can be little doubt that the State furthers
a constitutionally permissible end by encouraging an unmarried pregnant
minor to seek the help and advice of her parents in making the very important
decision whether or not to bear a child"). We thus conclude that Pennsylvania's
parental consent requirement should be upheld. |
| [422] | C |
| [423] | Section 3209 of the Act contains the spousal notification provision. It
requires that, before a physician may perform an abortion on a married woman,
the woman must sign a statement indicating that she has notified her husband
of her planned abortion. A woman is not required to notify her husband if
(1) her husband is not the father, (2) her husband, after diligent effort,
cannot be located, (3) the pregnancy is the result of a spousal sexual assault
that has been reported to the authorities, or (4) the woman has reason to
believe that notifying her husband is likely to result in the infliction
of bodily injury upon her by him or by another individual. In addition,
a woman is exempted from the notification requirement in the case of a medical
emergency. 18 Pa. Cons. Stat. § 3209 (1990). See Appendix, ante, at 68-69. |
| [424] | We first emphasize that Pennsylvania has not imposed a spousal consent
requirement of the type the Court struck down in Planned Parenthood of Central
Mo. v. Danforth, 428 U.S., at 67-72. Missouri's spousal consent provision
was invalidated in that case because of the Court's view that it unconstitutionally
granted to the husband "a veto power exercisable for any reason whatsoever
or for no reason at all." Id., at 71. But this case involves a much
less intrusive requirement of spousal notification, not consent. Such a
law requiring only notice to the husband "does not give any third party
the legal right to make the [woman's] decision for her, or to prevent her
from obtaining an abortion should she choose to have one performed."
Hodgson v. Minnesota, supra, at 496 (KENNEDY, J., Concurring in judgment
in part and Dissenting in part); see H. L. v. Matheson, 450 U.S., at 411,
n. 17. Danforth thus does not control our analysis. Petitioners contend
that it should, however; they argue that the real effect of such a notice
requirement is to give the power to husbands to veto a woman's abortion
choice. The District Court indeed found that the notification provision
created a risk that some woman who would otherwise have an abortion will
be prevented from having one. 947 F.2d, at 712. For example, petitioners
argue, many notified husbands will prevent abortions through physical force,
psychological coercion, and other types of threats. But Pennsylvania has
incorporated exceptions in the notice provision in an attempt to deal with
these problems. For instance, a woman need not notify her husband if the
pregnancy is result of a reported sexual assault, or if she has reason to
believe that she would suffer bodily injury as a result of the notification.
18 Pa. Cons. Stat. § 3209(b) (1990). Furthermore, because this is a facial
challenge to the Act, it is insufficient for petitioners to show that the
notification provision "might operate unconstitutionally under some
conceivable set of circumstances." United States v. Salerno, 481 U.S.
739, 745 (1987). Thus, it is not enough for petitioners to show that, in
some "worst-case" circumstances, the notice provision will operate
as a grant of veto power to husbands. Ohio v. Akron Center for Reproductive
Health, 497 U.S., at 514. Because they are making a facial challenge to
the provision, they must "show that no set of circumstances exists
under which the would be valid." Ibid. (internal quotation marks omitted).
This they have failed to do.2 |
| [425] | The question before us is therefore whether the spousal notification requirement
rationally furthers any legitimate state interests. We conclude that it
does. First, a husband's interests in procreation within marriage and in
the potential life of his unborn child are certainly substantial ones. See
Planned Parenthood of Central Mo. v. Danforth, 428 U.S., at 69 ("We
are not unaware of the deep and proper concern and interest that a devoted
and protective husband has in his wife's pregnancy and in the growth and
development of the fetus she is carrying"); id., at 93 (WHITE, J.,
Concurring in part and Dissenting in part); Skinner v. Oklahoma ex rel.
Williamson, 316 U.S., at 541. The State itself has legitimate interests
both in protecting these interests of the father and in protecting the potential
life of the fetus, and the spousal notification requirement is reasonably
related to advancing those state interests. By providing that a husband
will usually know of his spouse's intent to have an abortion, the provision
makes it more likely that the husband will participate in deciding the fate
of his unborn child, a possibility that might otherwise have been denied
him. This participation might in some cases result in a decision to proceed
with the pregnancy. As Judge Alito observed in his Dissent below, "the
Pennsylvania legislature could have rationally believed that some married
women are initially inclined to obtain an abortion without their husbands'
knowledge because of perceived problems -- such as economic constraints,
future plans, or the husbands' previously expressed opposition -- that may
be obviated by Discussion prior to the abortion." 947 F.2d, at 726
(Alito, J., Concurring in part and Dissenting in part). |
| [426] | The State also has a legitimate interest in promoting "the integrity
of the marital relationship." 18 Pa. Cons. Stat. § 3209(a) (1990).
This Court has previously recognized "the importance of the marital
relationship in our society." Planned Parenthood of Central Mo. v.
Danforth, supra, at 69. In our view, the spousal notice requirement is a
rational attempt by the State to improve truthful communication between
spouses and encourage collaborative decisionmaking, and thereby fosters
marital integrity. See Labine v. Vincent, 401 U.S. 532, 538 (1971) ("The
power to make rules to establish, protect, and strengthen family life"
is committed to the state legislatures). Petitioners argue that the notification
requirement does not further any such interest; they assert that the majority
of wives already notify their husbands of their abortion decisions, and
the remainder have excellent reasons for keeping their decisions a secret.
In the first case, they argue, the law is unnecessary, and in the second
case it will only serve to foster marital discord and threats of harm. Thus,
petitioners see the law as a totally irrational means of furthering whatever
legitimate interest the State might have. But, in our view, it is unrealistic
to assume that every husband-wife relationship is either (1) so perfect
that this type of truthful and important communication will take place as
a matter of course, or (2) so imperfect that, upon notice, the husband will
react selfishly, violently, or contrary to the best interests of his wife.
See Planned Parenthood of Central Mo. v. Danforth, supra, at 103-104 (STEVENS,
J., Concurring in part and Dissenting in part) (making a similar point in
the context of a parental consent statute). The spousal notice provision
will admittedly be unnecessary in some circumstances, and possibly harmful
in others, but "the existence of particular cases in which a feature
of a statute performs no function (or is even counterproductive) ordinarily
does not render the statute unconstitutional or even constitutionally suspect."
Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S.,
at 800 (WHITE, J., Dissenting). The Pennsylvania Legislature was in a position
to weigh the likely benefits of the provision against its likely adverse
effects, and presumably concluded, on balance, that the provision would
be beneficial. Whether this was a wise decision or not, we cannot say that
it was irrational. We therefore conclude that the spousal notice provision
comports with the Constitution. See Harris v. McRae, 448 U.S., at 325-326
("It is not the mission of this Court or any other to decide whether
the balance of competing interests . . . is wise social policy"). |
| [427] | D |
| [428] | The Act also imposes various reporting requirements. Section 3214(a) requires
that abortion facilities file a report on each abortion performed. The reports
do not include the identity of the women on whom abortions are performed,
but they do contain a variety of information about the abortions. For example,
each report must include the identities of the performing and referring
physicians, the gestational age of the fetus at the time of abortion, and
the basis for any medical judgment that a medical emergency existed. See
18 Pa. Cons. Stat. § 3214(a)(1), (5), (10) (1990). See Appendix, ante, at
69-71. The District Court found that these reports are kept completely confidential.
947 F.2d, at 716. We further conclude that these reporting requirements
rationally further the State's legitimate interests in advancing the state
of medical knowledge concerning maternal health and prenatal life, in gathering
statistical information with respect to patients, and in ensuring compliance
with other provisions of the Act. |
| [429] | Section 3207 of the Act requires each abortion facility to file a report
with its name and address, as well as the names and addresses of any parent,
subsidiary or affiliated organizations. 18 Pa. Cons. Stat. § 3207(b) (1990).
Section 3214(f) further requires each facility to file quarterly reports
stating the total number of abortions performed, broken down by trimester.
Both of these reports are available to the public only if the facility received
state funds within the preceding 12 months. See Appendix, ante, at 65-66,
71. Petitioners do not challenge the requirement that facilities provide
this information. They contend, however, that the forced public disclosure
of the information given by facilities receiving public funds serves no
legitimate state interest. We disagree. Records relating to the expenditure
of public funds are generally available to the public under Pennsylvania
law. See Pa. Stat. Ann., Tit. 65, §§ 66.1, 66.2 (Purdon 1959 and Su1991-1992).
As the Court of Appeals observed, "when a state provides money to a
private commercial enterprise, there is a legitimate public interest in
informing taxpayers who the funds are benefiting and what services the funds
are supporting." 947 F.2d, at 718. These reporting requirements rationally
further this legitimate state interest. |
| [430] | E |
| [431] | Finally, petitioners challenge the medical emergency exception provided
for by the Act. The existence of a medical emergency exempts compliance
with the Act's informed consent, parental consent, and spousal notice requirements.
See 18 Pa. Cons. Stat. §§ 3205(a), 3206(a), 3209(c) (1990). The Act defines
a "medical emergency" as |
| [432] | "that condition which, on the basis of the physician's good faith
clinical judgment, so complicates the medical condition of a pregnant woman
as to necessitate the immediate abortion of her pregnancy to avert her death
or for which a delay will create serious risk of substantial and irreversible
impairment of major bodily function." § 3203. |
| [433] | Petitioners argued before the District Court that the statutory definition
was inadequate because it did not cover three serious conditions that pregnant
women can suffer -- preeclampsia, inevitable abortion, and prematurely ruptured
membrane. The District Court agreed with petitioners that the medical emergency
exception was inadequate, but the Court of Appeals reversed this holding.
In construing the medical emergency provision, the Court of Appeals first
observed that all three conditions do indeed present the risk of serious
injury or death when an abortion is not performed, and noted that the medical
profession's uniformly prescribed treatment for each of the three conditions
is an immediate abortion. See 947 F.2d, at 700-701. Finding that "the
Pennsylvania legislature did not choose the wording of its medical emergency
exception in a vacuum," the court read the exception as intended "to
assure that compliance with its abortion regulations would not in any way
pose a significant threat to the life or health of a woman." Id., at
701. It thus concluded that the exception encompassed each of the three
dangerous conditions pointed to by petitioners. |
| [434] | We observe that Pennsylvania's present definition of medical emergency
is almost an exact copy of that State's definition at the time of this Court's
ruling in Thornburgh, one which the Court made reference to with apparent
approval. 476 U.S., at 771 ("It is clear that the Pennsylvania Legislature
knows how to provide a medical-emergency exception when it chooses to do
so").3 We find that the interpretation of the Court of Appeals in this
case is eminently reasonable, and that the provision thus should be upheld.
When a woman is faced with any condition that poses a "significant
threat to life or health," she is exempted from the Act's consent and
notice requirements and may proceed immediately with her abortion. |
| [435] | IV |
| [436] | For the reasons stated, we therefore would hold that each of the challenged
provisions of the Pennsylvania statute is consistent with the Constitution.
It bears emphasis that our Conclusion in this regard does not carry with
it any necessary approval of these regulations. Our task is, as always,
to decide only whether the challenged provisions of a law comport with the
United States Constitution. If, as we believe, these do, their wisdom as
a matter of public policy is for the people of Pennsylvania to decide. |
| [437] | JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE
THOMAS join, Concurring in the judgment in part and Dissenting in part. |
| [438] | My views on this matter are unchanged from those I set forth in my separate
opinions in Webster v. Reproductive Health Services, 492 U.S. 490, 532 (1989)
(SCALIA, J., Concurring in part and Concurring in judgment), and Ohio v.
Akron Center for Reproductive Health, 497 U.S. 502, 520 (1990) (Akron II)
(SCALIA, J., Concurring). The States may, if they wish, permit abortion-on-demand,
but the Constitution does not require them to do so. The permissibility
of abortion, and the limitations upon it, are to be resolved like most important
questions in our democracy: by citizens trying to persuade one another and
then voting. As the Court acknowledges, "where reasonable people disagree
the government can adopt one position or the other." Ante, at 8. The
Court is correct in adding the qualification that this "assumes a state
of affairs in which the choice does not intrude upon a protected liberty,"
ante, at 9 -- but the crucial part of that qualification is the penultimate
word. A State's choice between two positions on which reasonable people
can disagree is constitutional even when (as is often the case) it intrudes
upon a "liberty" in the absolute sense. Laws against bigamy, for
example -- which entire societies of reasonable people disagree with --
intrude upon men and women's liberty to marry and live with one another.
But bigamy happens not to be a liberty specially "protected" by
the Constitution. |
| [439] | That is, quite simply, the issue in this case: not whether the power of
a woman to abort her unborn child is a "liberty" in the absolute
sense; or even whether it is a liberty of great importance to many women.
Of course it is both. The issue is whether it is a liberty protected by
the Constitution of the United States. I am sure it is not. I reach that
Conclusion not because of anything so exalted as my views concerning the
"concept of existence, of meaning, of the universe, and of the mystery
of human life." Ibid. Rather, I reach it for the same reason I reach
the Conclusion that bigamy is not constitutionally protected -- because
of two simple facts: (1) the Constitution says absolutely nothing about
it, and (2) the longstanding traditions of American society have permitted
it to be legally proscribed.1 Akron II, (supra) , at 520 (SCALIA, J., Concurring). |
| [440] | The Court destroys the proposition, evidently meant to represent my position,
that "liberty" includes "only those practices, defined at
the most specific level, that were protected against government interference
by other rules of law when the Fourteenth Amendment was ratified,"
ante, at 5 (citing Michael H. v. Gerald D., 491 U.S. 110, 127, n. 6 (1989)
(opinion of SCALIA, J.). That is not, however, what Michael H. says; it
merely observes that, in defining "liberty," we may not disregard
a specific, "relevant tradition protecting, or denying protection to,
the asserted right," 491 U.S., at 127, n. 6. But the Court does not
wish to be fettered by any such limitations on its preferences. The Court's
statement that it is "tempting" to acknowledge the authoritativeness
of tradition in order to "curb the discretion of federal Judges,"
ante, at 5, is of course rhetoric rather than reality; no government official
is "tempted" to place restraints upon his own freedom of action,
which is why Lord Acton did not say "Power tends to purify." The
Court's temptation is in the quite opposite and more natural direction --
towards systematically eliminating checks upon its own power; and it succumbs. |
| [441] | Beyond that brief summary of the essence of my position, I will not swell
the United States Reports with repetition of what I have said before; and
applying the rational basis test, I would uphold the Pennsylvania statute
in its entirety. I must, however, respond to a few of the more outrageous
arguments in today's opinion, which it is beyond human nature to leave unanswered.
I shall discuss each of them under a quotation from the Court's opinion
to which they pertain. |
| [442] | "The inescapable fact is that adjudication of substantive due process
claims may call upon the Court in interpreting the Constitution to exercise
that same capacity which by tradition courts always have exercised: reasoned
judgment." |
| [443] | Ante, at 7. |
| [444] | Assuming that the question before us is to be resolved at such a level
of philosophical abstraction, in such isolation from the traditions of American
society, as by simply applying "reasoned judgment," I do not see
how that could possibly have produced the answer the Court arrived at in
Roe v. Wade, 410 U.S. 113 (1973). Today's opinion describes the methodology
of Roe, quite accurately, as weighing against the woman's interest the State's
"'important and legitimate interest in protecting the potentiality
of human life.'" Ante, at 28-29 (quoting Roe, (supra) , at 162). But
"reasoned judgment" does not begin by begging the question, as
Roe and subsequent cases unquestionably did by assuming that what the State
is protecting is the mere "potentiality of human life." See, e.g.,
Roe, (supra) , at 162; Planned Parenthood of Central Mo. v. Danforth, 428
U.S. 52, 61 (1976); Colautti v. Franklin, 439 U.S. 379, 386 (1979); Akron
v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 428 (1983)
(Akron I); Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft,
462 U.S. 476, 482 (1983). The whole argument of abortion opponents is that
what the Court calls the fetus and what others call the unborn child is
a human life. Thus, whatever answer Roe came up with after conducting its
"balancing" is bound to be wrong, unless it is correct that the
human fetus is in some critical sense merely potentially human. There is
of course no way to determine that as a legal matter; it is in fact a value
judgment. Some societies have considered newborn children not yet human,
or the incompetent elderly no longer so. |
| [445] | The authors of the joint opinion, of course, do not squarely contend that
Roe v. Wade was a correct application of "reasoned judgment";
merely that it must be followed, because of stare decisis. Ante, at 11,
18-19, 29. But in their exhaustive Discussion of all the factors that go
into the determination of when stare decisis should be observed and when
disregarded, they never mention "how wrong was the decision on its
face?" Surely, if "the Court's power lies . . . in its legitimacy,
a product of substance and perception," ante, at 23, the "substance"
part of the equation demands that plain error be acknowledged and eliminated.
Roe was plainly wrong -- even on the Court's methodology of "reasoned
judgment," and even more so (of course) if the proper criteria of text
and tradition are applied. |
| [446] | The emptiness of the "reasoned judgment" that produced Roe is
displayed in plain view by the fact that, after more than 19 years of effort
by some of the brightest (and most determined) legal minds in the country,
after more than 10 cases upholding abortion rights in this Court, and after
dozens upon dozens of amicus briefs submitted in this and other cases, the
best the Court can do to explain how it is that the word "liberty"
must be thought to include the right to destroy human fetuses is to rattle
off a collection of adjectives that simply decorate a value judgment and
conceal a political choice. The right to abort, we are told, inheres in
"liberty" because it is among "a person's most basic decisions,"
ante, at 7; it involves a "most intimate and personal choice,"
ante, at 9; it is "central to personal dignity and autonomy,"
ibid. ; it "originates within the zone of conscience and belief,"
ibid. ; it is "too intimate and personal" for state interference,
ante, at 10; it reflects "intimate views" of a "deep, personal
character," ante, at 11; it involves "intimate relationships,"
and notions of "personal autonomy and bodily integrity," ante,
at 15; and it concerns a particularly "'important decision,'"
ante, at 16 (citation omitted).2 But it is obvious to anyone applying "reasoned
judgment" that the same adjectives can be applied to many forms of
conduct that this Court (including one of the Justices in today's majority,
see Bowers v. Hardwick, 478 U.S. 186 (1986)) has held are not entitled to
constitutional protection -- because, like abortion, they are forms of conduct
that have long been criminalized in American society. Those adjectives might
be applied, for example, to homosexual sodomy, polygamy, adult incest, and
suicide, all of which are equally "intimate" and "deeply
personal" decisions involving "personal autonomy and bodily integrity,"
and all of which can constitutionally be proscribed because it is our unquestionable
constitutional tradition that they are proscribable. It is not reasoned
judgment that supports the Court's decision; only personal predilection.
Justice Curtis's warning is as timely today as it was 135 years ago: |
| [447] | "When a strict interpretation of the Constitution, according to the
fixed rules which govern the interpretation of laws, is abandoned, and the
theoretical opinions of individuals are allowed to control its meaning,
we have no longer a Constitution; we are under the government of individual
men, who for the time being have power to declare what the Constitution
is, according to their own views of what it ought to mean." Dred Scott
v. Sandford, 19 How. 393, 621 (1857) (Curtis, J., Dissenting). |
| [448] | "Liberty finds no refuge in a jurisprudence of doubt." |
| [449] | Ante, at 1. |
| [450] | One might have feared to encounter this august and sonorous phrase in
an opinion defending the real Roe v. Wade, rather than the revised version
fabricated today by the authors of the joint opinion. The shortcomings of
Roe did not include lack of clarity: Virtually all regulation of abortion
before the third trimester was invalid. But to come across this phrase in
the joint opinion -- which calls upon federal district Judges to apply an
"undue burden" standard as doubtful in application as it is unprincipled
in origin -- is really more than one should have to bear. |
| [451] | The joint opinion frankly concedes that the amorphous concept of "undue
burden" has been inconsistently applied by the Members of this Court
in the few brief years since that "test" was first explicitly
propounded by JUSTICE O'CONNOR in her Dissent in Akron I, (supra) . See
Ante, at 34.3 Because the three Justices now wish to "set forth a standard
of general application," the joint opinion announces that "it
is important to clarify what is meant by an undue burden," ibid. I
certainly agree with that, but I do not agree that the joint opinion succeeds
in the announced endeavor. To the contrary, its efforts at clarification
make clear only that the standard is inherently manipulable and will prove
hopelessly unworkable in practice. |
| [452] | The joint opinion explains that a state regulation imposes an "undue
burden" if it "has the purpose or effect of placing a substantial
obstacle in the path of a woman seeking an abortion of a nonviable fetus."
Ibid. ; see also ante, at 35-36. An obstacle is "substantial,"
we are told, if it is "calculated, to inform the woman's free choice,
[but to] hinder it." Ante, at 34.4 This latter statement cannot possibly
mean what it says. Any regulation of abortion that is intended to advance
what the joint opinion concedes is the State's "substantial" interest
in protecting unborn life will be "calculated hinder" a decision
to have an abortion. It thus seems more accurate to say that the joint opinion
would uphold abortion regulations only if they do not unduly hinder the
woman's decision. That, of course, brings us right back to square one: Defining
an "undue burden" as an "undue hindrance" (or a "substantial
obstacle") hardly "clarifies" the test. Consciously or not,
the joint opinion's verbal shell game will conceal raw judicial policy choices
concerning what is "appropriate" abortion legislation. |
| [453] | The ultimately standardless nature of the "undue burden" inquiry
is a reflection of the underlying fact that the concept has no principled
or coherent legal basis. As THE CHIEF JUSTICE points out, Roe 's strict-scrutiny
standard "at least had a recognized basis in constitutional law at
the time Roe was decided," ante, at 22, while "the same cannot
be said for the undue burden' standard, which is created largely out of
whole cloth by the authors of the joint opinion," ibid. The joint opinion
is flatly wrong in asserting that "our jurisprudence relating to all
liberties save perhaps abortion has recognized" the permissibility
of laws that do not impose an "undue burden." Ante, at 31. It
argues that the abortion right is similar to other rights in that a law
"not designed to strike at the right itself, [but which] has the incidental
effect of making it more difficult or more expensive to [exercise the right,]"
is not invalid. Ante, at 31-32. I agree, indeed I have forcefully urged,
that a law of general applicability which places only an incidental burden
on a fundamental right does not infringe that right, see R. A. V. v. St.
Paul, 505 U.S. , , 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992) (slip op.,
at 11); Employment Division, Dept. of Human Resources of Ore. v. Smith,
494 U.S. 872, 878-882 (1990), but that principle does not establish the
quite different (and quite dangerous) proposition that a law which directly
regulates a fundamental right will not be found to violate the Constitution
unless it imposes an "undue burden." It is that, of course, which
is at issue here: Pennsylvania has consciously and directly regulated conduct
that our cases have held is constitutionally protected. The appropriate
analogy, therefore, is that of a state law requiring purchasers of religious
books to endure a 24-hour waiting period, or to pay a nominal additional
tax of 1 cents . The joint opinion cannot possibly be correct in suggesting
that we would uphold such legislation on the ground that it does not impose
a "substantial obstacle" to the exercise of First Amendment rights.
The "undue burden" standard is not at all the generally applicable
principle the joint opinion pretends it to be; rather, it is a unique concept
created specially for this case, to preserve some judicial foothold in this
ill-gotten territory. In claiming otherwise, the three Justices show their
willingness to place all constitutional rights at risk in an effort to preserve
what they deem the "central holding in Roe," ante, at 31. |
| [454] | The rootless nature of the "undue burden" standard, a phrase
plucked out of context from our earlier abortion decisions, see n. 3, (supra)
, is further reflected in the fact that the joint opinion finds it necessary
expressly to repudiate the more narrow formulations used in JUSTICE O'CONNOR's
earlier opinions. Ante, at 35. Those opinions stated that a statute imposes
an "undue burden" if it imposes " absolute obstacles or severe
limitations on the abortion decision," Akron I, 462 U.S., at 464 (O'CONNOR,
J., Dissenting) (emphasis added); see also Thornburgh v. American College
of Obstetricians and Gynecologists, 476 U.S. 747, 828 (1986) (O'CONNOR,
J., Dissenting). Those strong adjectives are conspicuously missing from
the joint opinion, whose authors have for some unexplained reason now determined
that a burden is "undue" if it merely imposes a "substantial"
obstacle to abortion decisions. See, e.g., ante, at 53, 59. JUSTICE O'CONNOR
has also abandoned (again without explanation) the view she expressed in
Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S.
476 (1983) (dissenting opinion), that a medical regulation which imposes
an "undue burden" could nevertheless be upheld if it "reasonably
relates to the preservation and protection of maternal health," id.,
at 505 (citation and internal quotation marks omitted). In today's version,
even health measures will be upheld only " if they do not constitute
an undue burden," ante, at 35 (emphasis added). Gone too is JUSTICE
O'CONNOR's statement that "the State possesses compelling interests
in the protection of potential human life . . . throughout pregnancy,"
Akron I, (supra) , at 461 (emphasis added); see also Ashcroft, (supra) ,
at 505 (O'CONNOR, J., Concurring in judgment in part and Dissenting in part);
Thornburgh, (supra) , at 828 (O'CONNOR, J., Dissenting); instead, the State's
interest in unborn human life is stealthily downgraded to a merely "substantial"
or "profound" interest, ante, at 34, 36. (That had to be done,
of course, since designating the interest as "compelling" throughout
pregnancy would have been, shall we say, a "substantial obstacle"
to the joint opinion's determined effort to reaffirm what it views as the
"central holding" of Roe. See Akron I, 462 U.S., at 420, n. 1.)
And "viability" is no longer the "arbitrary" dividing
line previously decried by JUSTICE O'CONNOR in Akron I, id., at 461; the
Court now announces that "the attainment of viability may continue
to serve as the critical fact," ante, at 18.5 It is difficult to maintain
the illusion that we are interpreting a Constitution rather than inventing
one, when we amend its provisions so breezily. |
| [455] | Because the portion of the joint opinion adopting and describing the undue-burden
test provides no more useful guidance than the empty phrases discussed above,
one must turn to the 23 pages applying that standard to the present facts
for further guidance. In evaluating Pennsylvania's abortion law, the joint
opinion relies extensively on the factual findings of the District Court,
and repeatedly qualifies its Conclusions by noting that they are contingent
upon the record developed in this case. Thus, the joint opinion would uphold
the 24-hour waiting period contained in the Pennsylvania statute's informed
consent provision, 18 Pa. Cons. Stat. § 3205 (1990), because "the record
evidence shows that in the vast majority of cases, a 24-hour delay does
not create any appreciable health risk," ante, at 43. The three Justices
therefore conclude that "on the record before us, . . . we are not
convinced that the 24-hour waiting period constitutes an undue burden."
Ante, at 44-45. The requirement that a doctor provide the information pertinent
to informed consent would also be upheld because "there is no evidence
on this record that [this requirement] would amount in practical terms to
a substantial obstacle to a woman seeking an abortion," ante, at 42.
Similarly, the joint opinion would uphold the reporting requirements of
the Act, §§ 3207, 3214, because "there is no . . . showing on the record
before us" that these requirements constitute a "substantial obstacle"
to abortion decisions. Ante, at 59. But at the same time the opinion pointedly
observes that these reporting requirements may increase the costs of abortions
and that "at some point [that fact] could become a substantial obstacle,"
ibid. Most significantly, the joint opinion's Conclusion that the spousal
notice requirement of the Act, see § 3209, imposes an "undue burden"
is based in large measure on the District Court's "detailed findings
of fact," which the joint opinion sets out at great length. Ante, at
45-49. |
| [456] | I do not, of course, have any objection to the notion that, in applying
legal principles, one should rely only upon the facts that are contained
in the record or that are properly subject to judicial notice.6 But what
is remarkable about the joint opinion's fact-intensive analysis is that
it does not result in any measurable clarification of the "undue burden"
standard. Rather, the approach of the joint opinion is, for the most part,
simply to highlight certain facts in the record that apparently strike the
three Justices as particularly significant in establishing (or refuting)
the existence of an undue burden; after describing these facts, the opinion
then simply announces that the provision either does or does not impose
a "substantial obstacle" or an "undue burden." See,
e.g., ante, at 38, 42, 44-45, 45, 52, 53, 59. We do not know whether the
same Conclusions could have been reached on a different record, or in what
respects the record would have had to differ before an opposite Conclusion
would have been appropriate. The inherently standardless nature of this
inquiry invites the district Judge to give effect to his personal preferences
about abortion. By finding and relying upon the right facts, he can invalidate,
it would seem, almost any abortion restriction that strikes him as "undue"
-- subject, of course, to the possibility of being reversed by a Circuit
Court or Supreme Court that is as unconstrained in reviewing his decision
as he was in making it. |
| [457] | To the extent I can discern any meaningful content in the "undue
burden" standard as applied in the joint opinion, it appears to be
that a State may not regulate abortion in such a way as to reduce significantly
its incidence. The joint opinion repeatedly emphasizes that an important
factor in the "undue burden" analysis is whether the regulation
"prevents a significant number of women from obtaining an abortion,"
ante, at 52; whether a "significant number of women . . . are likely
to be deterred from procuring an abortion," ibid. ; and whether the
regulation often "deters" women from seeking abortions, ante,
at 55-56. We are not told, however, what forms of "deterrence"
are impermissible or what degree of success in deterrence is too much to
be tolerated. If, for example, a State required a woman to read a pamphlet
describing, with illustrations, the facts of fetal development before she
could obtain an abortion, the effect of such legislation might be to "deter"
a "significant number of women" from procuring abortions, thereby
seemingly allowing a district Judge to invalidate it as an undue burden.
Thus, despite flowery rhetoric about the State's "substantial"
and "profound" interest in "potential human life," and
criticism of Roe for undervaluing that interest, the joint opinion permits
the State to pursue that interest only so long as it is not too successful.
As JUSTICE BLACKMUN recognizes (with evident hope), ante, at 5, the "undue
burden" standard may ultimately require the invalidation of each provision
upheld today if it can be shown, on a better record, that the State is too
effectively "expressing a preference for childbirth over abortion,"
ante, at 41. Reason finds no refuge in this jurisprudence of confusion. |
| [458] | "While we appreciate the weight of the arguments . . . that Roe should
be overruled, the reservations any of us may have in reaffirming the central
holding of Roe are outweighed by the explication of individual liberty we
have given combined with the force of stare decisis." |
| [459] | Ante, at 11. |
| [460] | The Court's reliance upon stare decisis can best be described as contrived.
It insists upon the necessity of adhering not to all of Roe, but only to
what it calls the "central holding." It seems to me that stare
decisis ought to be applied even to the doctrine of stare decisis, and I
confess never to have heard of this new, keep-what-you-want-and-throw-away-the-rest
version. I wonder whether, as applied to Marbury v. Madison, 1 Cranch 137
(1803), for example, the new version of stare decisis would be satisfied
if we allowed courts to review the constitutionality of only those statutes
that (like the one in Marbury) pertain to the jurisdiction of the courts. |
| [461] | I am certainly not in a good position to dispute that the Court has saved
the "central holding" of Roe, since to do that effectively I would
have to know what the Court has saved, which in turn would require me to
understand (as I do not) what the "undue burden" test means. I
must confess, however, that I have always thought, and I think a lot of
other people have always thought, that the arbitrary trimester framework,
which the Court today discards, was quite as central to Roe as the arbitrary
viability test, which the Court today retains. It seems particularly ungrateful
to carve the trimester framework out of the core of Roe, since its very
rigidity (in sharp contrast to the utter indeterminability of the "undue
burden" test) is probably the only reason the Court is able to say,
in urging stare decisis, that Roe "has in no sense proven 'unworkable,'"
ante, at 13. I suppose the Court is entitled to call a "central holding"
whatever it wants to call a "central holding" -- which is, come
to think of it, perhaps one of the difficulties with this modified version
of stare decisis. I thought I might note, however, that the following portions
of Roe have not been saved: |
| [462] | * Under Roe, requiring that a woman seeking an abortion be provided truthful
information about abortion before giving informed written consent is unconstitutional,
if the information is designed to influence her choice, Thornburgh, 476
U.S., at 759-765; Akron I, 462 U.S., at 442-445. Under the joint opinion's
"undue burden" regime (as applied today, at least) such a requirement
is constitutional, ante, at 38-42. |
| [463] | * Under Roe, requiring that information be provided by a doctor, rather
than by nonphysician counselors, is unconstitutional, Akron I, (supra) ,
at 446-449. Under the "undue burden" regime (as applied today,
at least) it is not, ante, at 42. |
| [464] | * Under Roe, requiring a 24-hour waiting period between the time the woman
gives her informed consent and the time of the abortion is unconstitutional,
Akron I, (supra) , at 449-451. Under the "undue burden" regime
(as applied today, at least) it is not, ante, at 43-45. |
| [465] | * Under Roe, requiring detailed reports that include demographic data
about each woman who seeks an abortion and various information about each
abortion is unconstitutional, Thornburgh, (supra) , at 765-768. Under the
"undue burden" regime (as applied today, at least) it generally
is not, ante, at 58-59. |
| [466] | "Where, in the performance of its judicial duties, the Court decides
a case in such a way as to resolve the sort of intensely divisive controversy
reflected in Roe. . ., its decision has a dimension that the resolution
of the normal case does not carry. It is the dimension present whenever
the Court's interpretation of the Constitution calls the contending sides
of a national controversy to end their national division by accepting a
common mandate rooted in the Constitution." |
| [467] | Ante, at 24. |
| [468] | The Court's description of the place of Roe in the social history of the
United States is unrecognizable. Not only did Roe not, as the Court suggests,
resolve the deeply divisive issue of abortion; it did more than anything
else to nourish it, by elevating it to the national level where it is infinitely
more difficult to resolve. National politics were not plagued by abortion
protests, national abortion lobbying, or abortion marches on Congress, before
Roe v. Wade was decided. Profound disagreement existed among our citizens
over the issue -- as it does over other issues, such as the death penalty
-- but that disagreement was being worked out at the state level. As with
many other issues, the division of sentiment within each State was not as
closely balanced as it was among the population of the Nation as a whole,
meaning not only that more people would be satisfied with the results of
state-by-state resolution, but also that those results would be more stable.
Pre- Roe, moreover, political compromise was possible. |
| [469] | Roe 's mandate for abortion-on-demand destroyed the compromises of the
past, rendered compromise impossible for the future, and required the entire
issue to be resolved uniformly, at the national level. At the same time,
Roe created a vast new class of abortion consumers and abortion proponents
by eliminating the moral opprobrium that had attached to the act. ("If
the Constitution guarantees abortion, how can it be bad?" -- not an
accurate line of thought, but a natural one.) Many favor all of those developments,
and it is not for me to say that they are wrong. But to portray Roe as the
statesmanlike "settlement" of a divisive issue, a jurisprudential
Peace of Westphalia that is worth preserving, is nothing less than Orwellian.
Roe fanned into life an issue that has inflamed our national politics in
general, and has obscured with its smoke the selection of Justices to this
Court in particular, ever since. And by keeping us in the abortion-umpiring
business, it is the perpetuation of that disruption, rather than of any
pax Roeana, that the Court's new majority decrees. |
| [470] | "To overrule under fire . . . would subvert the Court's legitimacy
. . . . |
| [471] | "To all those who will be . . . tested by following, the Court implicitly
undertakes to remain steadfast . . . . The promise of constancy, once given,
binds its maker for as long as the power to stand by the decision survives
and . . . the commitment [is not] obsolete. . . . |
| [472] | "[The American people's] belief in themselves as . . . a people [who
aspire to live according to the rule of law] is not readily separable from
their understanding of the Court invested with the authority to decide their
constitutional cases and speak before all others for their constitutional
ideals. If the Court's legitimacy should be undermined, then, so would the
country be in its very ability to see itself through its constitutional
ideals." |
| [473] | Ante, at 25-26. |
| [474] | The Imperial Judiciary lives. It is instructive to compare this Nietzschean
vision of us unelected, life-tenured Judges -- leading a Volk who will be
"tested by following," and whose very "belief in themselves"
is mystically bound up in their "understanding" of a Court that
"speaks before all others for their constitutional ideals" --
with the somewhat more modest role envisioned for these lawyers by the Founders. |
| [475] | "The judiciary . . . has . . . no direction either of the strength
or of the wealth of the society, and can take no active resolution whatever.
It may truly be said to have neither FORCE nor WILL but merely judgment
. . . ." The Federalist No. 78, 393-394 (G. Wills ed. 1982). |
| [476] | Or, again, to compare this ecstasy of a Supreme Court in which there is,
especially on controversial matters, no shadow of change or hint of alteration
("There is a limit to the amount of error that can plausibly be imputed
to prior courts," ante, at 24), with the more democratic views of a
more humble man: |
| [477] | "The candid citizen must confess that if the policy of the Government
upon vital questions affecting the whole people is to be irrevocably fixed
by decisions of the Supreme Court, . . . the people will have ceased to
be their own rulers, having to that extent practically resigned their Government
into the hands of that eminent tribunal." A. Lincoln, First Inaugural
Address (Mar. 4, 1861), reprinted in Inaugural Addresses of the Presidents
of the United States, S. Doc. No. 101-10, p. 139 (1989). |
| [478] | It is particularly difficult, in the circumstances of the present decision,
to sit still for the Court's lengthy lecture upon the virtues of "constancy,"
ante, at 26, of "remaining steadfast," id., at 25, of adhering
to "principle," id., passim. Among the five Justices who purportedly
adhere to Roe, at most three agree upon the principle that constitutes adherence
(the joint opinion's "undue burden" standard) -- and that principle
is inconsistent with Roe, see 410 U.S., at 154-156.7 To make matters worse,
two of the three, in order thus to remain steadfast, had to abandon previously
stated positions. See n. 4 (supra) ; see (supra) , at 11-12. It is beyond
me how the Court expects these accommodations to be accepted "as grounded
truly in principle, not as compromises with social and political pressures
having, as such, no bearing on the principled choices that the Court is
obliged to make." Ante, at 23. The only principle the Court "adheres"
to, it seems to me, is the principle that the Court must be seen as standing
by Roe. That is not a principle of law (which is what I thought the Court
was talking about), but a principle of Realpolitik -- and a wrong one at
that. |
| [479] | I cannot agree with, indeed I am appalled by, the Court's suggestion that
the decision whether to stand by an erroneous constitutional decision must
be strongly influenced -- against overruling, no less -- by the substantial
and continuing public opposition the decision has generated. The Court's
judgment that any other course would "subvert the Court's legitimacy"
must be another consequence of reading the error-filled history book that
described the deeply divided country brought together by Roe. In my history-book,
the Court was covered with dishonor and deprived of legitimacy by Dred Scott
v. Sandford, 19 How. 393 (1857), an erroneous (and widely opposed) opinion
that it did not abandon, rather than by West Coast Hotel Co. v. Parrish,
300 U.S. 379 (1937), which produced the famous "switch in time"
from the Court's erroneous (and widely opposed) constitutional opposition
to the social measures of the New Deal. (Both Dred Scott and one line of
the cases resisting the New Deal rested upon the concept of "substantive
due process" that the Court praises and employs today. Indeed, Dred
Scott was "very possibly the first application of substantive due process
in the Supreme Court, the original precedent for Lochner v. New York and
Roe v. Wade." D. Currie, The Constitution in the Supreme Court 271
(1985) (footnotes omitted).) |
| [480] | But whether it would "subvert the Court's legitimacy" or not,
the notion that we would decide a case differently from the way we otherwise
would have in order to show that we can stand firm against public disapproval
is frightening. It is a bad enough idea, even in the head of someone like
me, who believes that the text of the Constitution, and our traditions,
say what they say and there is no fiddling with them. But when it is in
the mind of a Court that believes the Constitution has an evolving meaning,
see ante, at 6; that the Ninth Amendment's reference to "other"
rights is not a disclaimer, but a charter for action, ibid. ; and that the
function of this Court is to "speak before all others for [the people's]
constitutional ideals" unrestrained by meaningful text or tradition
-- then the notion that the Court must adhere to a decision for as long
as the decision faces "great opposition" and the Court is "under
fire" acquires a character of almost czarist arrogance. We are offended
by these marchers who descend upon us, every year on the anniversary of
Roe, to protest our saying that the Constitution requires what our society
has never thought the Constitution requires. These people who refuse to
be "tested by following" must be taught a lesson. We have no Cossacks,
but at least we can stubbornly refuse to abandon an erroneous opinion that
we might otherwise change -- to show how little they intimidate us. |
| [481] | Of course, as THE CHIEF JUSTICE points out, we have been subjected to
what the Court calls "political pressure" by both sides of this
issue. Ante, at 21. Maybe today's decision not to overrule Roe will be seen
as buckling to pressure from that direction. Instead of engaging in the
hopeless task of predicting public perception -- a job not for lawyers but
for political campaign managers -- the Justices should do what is legally
right by asking two questions: (1) Was Roe correctly decided? (2) Has Roe
succeeded in producing a settled body of law? If the answer to both questions
is no, Roe should undoubtedly be overruled. |
| [482] | In truth, I am as distressed as the Court is -- and expressed my distress
several years ago, see Webster, 492 U.S., at 535 -- about the "political
pressure" directed to the Court: the marches, the mail, the protests
aimed at inducing us to change our opinions. How upsetting it is, that so
many of our citizens (good people, not lawless ones, on both sides of this
abortion issue, and on various sides of other issues as well) think that
we Justices should properly take into account their views, as though we
were engaged not in ascertaining an objective law but in determining some
kind of social consensus. The Court would profit, I think, from giving less
attention to the fact of this distressing phenomenon, and more attention
to the cause of it. That cause permeates today's opinion: a new mode of
constitutional adjudication that relies not upon text and traditional practice
to determine the law, but upon what the Court calls "reasoned judgment,"
ante, at 7, which turns out to be nothing but philosophical predilection
and moral intuition. All manner of "liberties," the Court tells
us, inhere in the Constitution and are enforceable by this Court -- not
just those mentioned in the text or established in the traditions of our
society. Ante, at 5-6. Why even the Ninth Amendment -- which says only that
"the enumeration in the Constitution of certain rights shall not be
construed to deny or disparage others retained by the people" -- is,
despite our contrary understanding for almost 200 years, a literally boundless
source of additional, unnamed, unhinted-at "rights," definable
and enforceable by us, through "reasoned judgment." Ante, at 6-7. |
| [483] | What makes all this relevant to the bothersome application of "political
pressure" against the Court are the twin facts that the American people
love democracy and the American people are not fools. As long as this Court
thought (and the people thought) that we Justices were doing essentially
lawyers' work up here -- reading text and discerning our society's traditional
understanding of that text -- the public pretty much left us alone. Texts
and traditions are facts to study, not convictions to demonstrate about.
But if in reality our process of constitutional adjudication consists primarily
of making value judgments ; if we can ignore a long and clear tradition
clarifying an ambiguous text, as we did, for example, five days ago in declaring
unconstitutional invocations and benedictions at public-high-school graduation
ceremonies, Lee v. Weisman, 505 U.S. , 112 S. Ct. 2649, 120 L. Ed. 2d 467
(1992); if, as I say, our pronouncement of constitutional law rests primarily
on value judgments, then a free and intelligent people's attitude towards
us can be expected to be (ought to be) quite different. The people know
that their value judgments are quite as good as those taught in any law
school -- maybe better. If, indeed, the "liberties" protected
by the Constitution are, as the Court says, undefined and unbounded, then
the people should demonstrate, to protest that we do not implement their
values instead of ours. Not only that, but confirmation hearings for new
Justices should deteriorate into question-and-answer sessions in which Senators
go through a list of their constituents' most favored and most disfavored
alleged constitutional rights, and seek the nominee's commitment to support
or oppose them. Value judgments, after all, should be voted on, not dictated;
and if our Constitution has somehow accidentally committed them to the Supreme
Court, at least we can have a sort of plebiscite each time a new nominee
to that body is put forward. JUSTICE BLACKMUN not only regards this prospect
with equanimity, he solicits it, ante, at 22-23. |
| [484] | There is a poignant aspect to today's opinion. Its length, and what might
be called its epic tone, suggest that its authors believe they are bringing
to an end a troublesome era in the history of our Nation and of our Court.
"It is the dimension" of authority, they say, to "call the
contending sides of national controversy to end their national division
by accepting a common mandate rooted in the Constitution." Ante, at
24. |
| [485] | There comes vividly to mind a portrait by Emanuel Leutze that hangs in
the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82d year
of his life, the 24th of his Chief Justiceship, the second after his opinion
in Dred Scott. He is all in black, sitting in a shadowed red armchair, left
hand resting upon a pad of paper in his lap, right hand hanging limply,
almost lifelessly, beside the inner arm of the chair. He sits facing the
viewer, and staring straight out. There seems to be on his face, and in
his deep-set eyes, an expression of profound sadness and disillusionment.
Perhaps he always looked that way, even when dwelling upon the happiest
of thoughts. But those of us who know how the lustre of his great Chief
Justiceship came to be eclipsed by Dred Scott cannot help believing that
he had that case -- its already apparent consequences for the Court, and
its soon-to-be-played-out consequences for the Nation -- burning on his
mind. I expect that two years earlier he, too, had thought himself "calling
the contending sides of national controversy to end their national division
by accepting a common mandate rooted in the Constitution." |
| [486] | It is no more realistic for us in this case, than it was for him in that,
to think that an issue of the sort they both involved -- an issue involving
life and death, freedom and subjugation -- can be "speedily and finally
settled" by the Supreme Court, as President James Buchanan in his inaugural
address said the issue of slavery in the territories would be. See Inaugural
Addresses of the Presidents of the United States, S. Doc. No. 101-10, p.
126 (1989). Quite to the contrary, by foreclosing all democratic outlet
for the deep passions this issue arouses, by banishing the issue from the
political forum that gives all participants, even the losers, the satisfaction
of a fair hearing and an honest fight, by continuing the imposition of a
rigid national rule instead of allowing for regional differences, the Court
merely prolongs and intensifies the anguish. |
| [487] | We should get out of this area, where we have no right to be, and where
we do neither ourselves nor the country any good by remaining. |
|
|
|
| Opinion Footnotes | |
|
|
|
| [488] | * Together with No. 91-902, Casey, Governor of Pennsylvania, et al. v.
Planned Parenthood of Southeastern Pennsylvania et al., also on certiorari
to the same court. |
| [489] | *fn1 It is sometimes useful to
view the issue of stare decisis from a historical perspective. In the last
nineteen years, fifteen Justices have confronted the basic issue presented
in Roe. Of those, eleven have voted as the majority does today: Chief Justice
Burger, Justices Douglas, Brennan, Stewart, Marshall, and Powell, and JUSTICES
BLACKMUN, O'CONNOR, KENNEDY, SOUTER, and myself. Only four -- all of whom
happen to be on the Court today -- have reached the opposite Conclusion. |
| [490] | *fn2 Professor Dworkin has made
this comment on the issue: |
| [491] | "The suggestion that states are free to declare a fetus a person.
. . . assumes that a state can curtail some persons' constitutional rights
by adding new persons to the constitutional population. The constitutional
rights of one citizen are of course very much affected by who or what else
also has constitutional rights, because the rights of others may compete
or conflict with his. So any power to increase the constitutional population
by unilateral decision would be, in effect, a power to decrease rights the
national Constitution grants to others. |
| [492] | "If a state could declare trees to be persons with a constitutional
right to life, it could prohibit publishing newspapers or books in spite
of the First Amendment's guarantee of free speech, which could not be understood
as a license to kill. . . .Once we understand that the suggestion we are
considering has that implication, we must reject it. If a fetus is not part
of the constitutional population, under the national constitutional arrangement,
then states have no power to overrule that national arrangement by themselves
declaring that fetuses have rights competitive with the constitutional rights
of pregnant women." Dworkin, Unenumerated Rights: Whether and How Roe
Should be Overruled, 59 U. Chi. L. Rev. 381, 400-401 (1992). |
| [493] | *fn3 The state interest in protecting
potential life may be compared to the state interest in protecting those
who seek to immigrate to this country. A contemporary example is provided
by the Haitians who have risked the perils of the sea in a desperate attempt
to become "persons" protected by our laws. Humanitarian and practical
concerns would support a state policy allowing those persons unrestricted
entry; countervailing interests in population control support a policy of
limiting the entry of these potential citizens. While the state interest
in population control might be sufficient to justify strict enforcement
of the immigration laws, that interest would not be sufficient to overcome
a woman's liberty interest. Thus, a state interest in population control
could not justify a state-imposed limit on family size or, for that matter,
state-mandated abortions. |
| [494] | *fn4 As we noted in that opinion,
the State's "legitimate interest in protecting minor women from their
own immaturity" distinguished that case from Akron which involved "a
provision that required mature women, capable of consenting to an abortion,
wait 24 hours after giving consent before undergoing an abortion."
Hodgson, 497 U.S., at 449, n. 35. |
| [495] | *fn5 The joint opinion's reliance
on the indirect effects of the regulation of constitutionally protected
activity, see ante, 31-32, is misplaced; what matters is not only the effect
of a regulation but also the reason for the regulation. As I explained in
Hodgson : |
| [496] | "In cases involving abortion, as in cases involving the right to
travel or the right to marry, the identification of the constitutionally
protected interest is merely the beginning of the analysis. State regulation
of travel and of marriage is obviously permissible even though a State may
not categorically exclude nonresidents from its borders, Shapiro v. Thompson,
394 U.S. 618, 631 (1969), or deny prisoners the right to marry, Turner v.
Safley, 482 U.S. 78, 94-99 (1987). But the regulation of constitutionally
protected decisions, such as where a person shall reside or whom he or she
shall marry, must be predicated on legitimate state concerns other than
disagreement with the choice the individual has made. Cf. Turner v. Safley,
(supra) ; Loving v. Virginia, 388 U.S. 1 (1967). In the abortion area, a
State may have no obligation to spend its own money, or use its own facilities,
to subsidize nontherapeutic abortions for minors or adults. See, e.g., Maher
v. Roe, 432 U.S. 464 (1977); cf. Webster v. Reproductive Health Services,
492 U.S. 490, 508-511 (1989) (plurality opinion); id., at 523-524 (O'CONNOR,
J., Concurring in part and Concurring in judgment). A State's value judgment
favoring childbirth over abortion may provide adequate support for decisions
involving such allocation of public funds, but not for simply substituting
a state decision for an individual decision that a woman has a right to
make for herself. Otherwise, the interest in liberty protected by the Due
Process Clause would be a nullity. A state policy favoring childbirth over
abortion is not in itself a sufficient justification for overriding the
woman's decision or for placing obstacles -- absolute or otherwise -- in
the pregnant woman's path to an abortion.'" Hodgson, 497 U.S., at 435. |
| [497] | *fn6 The meaning of any legal
standard can only be understood by reviewing the actual cases in which it
is applied. For that reason, I discount both JUSTICE SCALIA's comments on
past descriptions of the standard, see post, at 11-12 (opinion of SCALIA,
J.), and the attempt to give it crystal clarity in the joint opinion. The
several opinions supporting the judgment in Griswold v. Connecticut, 381
U.S. 479 (1965), are less illuminating than the central holding of the case,
which appears to have passed the test of time. The future may also demonstrate
that a standard that analyzes both the severity of a regulatory burden and
the legitimacy of its justification will provide a fully adequate framework
for the review of abortion legislation even if the contours of the standard
are not authoritatively articulated in any single opinion. |
| [498] | *fn7 U.S. Dept. of Commerce,
Bureau of the Census, Statistical Abstract of the United States 71 (111th
ed. 1991). |
| [499] | *fn8 Although I agree that a
parental-consent requirement (with the appropriate bypass) is constitutional,
I do not join Part V-D of the joint opinion because its approval of Pennsylvania's
informed parental-consent requirement is based on the reasons given in Part
V-B, with which I disagree. |
| [500] | 1 As I shall explain, the joint opinion and I disagree on the appropriate
standard of review for abortion regulations. I do agree, however, that the
reasons advanced by the joint opinion suffice to invalidate the spousal
notification requirement under a strict scrutiny standard. |
| [501] | 2 I also join the Court's decision to uphold the medical emergency provision.
As the Court notes, its interpretation is consistent with the essential
holding of Roe that "forbids a State from interfering with a woman's
choice to undergo an abortion procedure if continuing her pregnancy would
constitute a threat to her health." Ante, at 38. As is apparent in
my analysis below, however, this exception does not render constitutional
the provisions which I conclude do not survive strict scrutiny. |
| [502] | 3 As the joint opinion acknowledges, ante, at 15, this Court has recognized
the vital liberty interest of persons in refusing unwanted medical treatment.
Cruzan v. Director, Missouri Dept. of Health, U.S. (1990). Just as the Due
Process Clause protects the deeply personal decision of the individual to
refuse medical treatment, it also must protect the deeply personal decision
to obtain medical treatment, including a woman's decision to terminate a
pregnancy. |
| [503] | 4 A growing number of commentators are recognizing this point. See, e.g.,
L. Tribe, American Constitutional Law, § 15-10, 1353-1359 (2d ed. 1988);
Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation
and Questions of Equal Protection, 44 Stan. L. Rev. 261, 350-380 (1992);
Sunstein, Neutrality in Constitutional Law (With Special Reference to Pornography,
Abortion, and Surrogacy), 92 Colum. L. Rev. 1, 31-44 (1992); MacKinnon,
Reflections on Sex Equality Under Law, 100 Yale L.J. 1281, 1308-1324 (1991),
cf. Rubenfeld, The Right of Privacy, 102 Harv. L. Rev. 737, 788-791 (1989)
(similar analysis under the rubric of privacy). |
| [504] | 5 To say that restrictions on a right are subject to strict scrutiny is
not to say that the right is absolute. Regulations can be upheld if they
have no significant impact on the woman's exercise of her right and are
justified by important state health objectives. See, e.g., Planned Parenthood
of Central Mo. v. Danforth, 428 U.S. 52, 65-67, 79-81 (1976) (upholding
requirements of a woman's written consent and record keeping). But the Court
today reaffirms the essential principle of Roe that a woman has the right
"to choose to have an abortion before viability and to obtain it without
undue interference from the State." Ante, at 3. Under Roe, any more
than de minimis interference is undue. |
| [505] | 6 The joint opinion agrees with Roe 's Conclusion that viability occurs
at 23 or 24 weeks at the earliest. Compare ante, at 18, with 410 U.S., at
160. |
| [506] | 7 While I do not agree with the joint opinion's Conclusion that these
provisions should be upheld, the joint opinion has remained faithful to
principles this Court previously has announced in examining counseling provisions.
For example, the joint opinion concludes that the "information the
State requires to be made available to the woman" must be "truthful
and not misleading." Ante, at 40. Because the State's information must
be "calculated to inform the woman's free choice, not hinder it,"
ante, at 34, the measures must be designed to ensure that a woman's choice
is "mature and informed," id., at 41, not intimidated, imposed,
or impelled. To this end, when the State requires the provision of certain
information, the State may not alter the manner of presentation in order
to inflict "psychological abuse," id., at 51, designed to shock
or unnerve a woman seeking to exercise her liberty right. This, for example,
would appear to preclude a State from requiring a woman to view graphic
literature or films detailing the performance of an abortion operation.
Just as a visual preview of an operation to remove an appendix plays no
part in a physician's securing informed consent to an appendectomy, a preview
of scenes appurtenant to any major medical intrusion into the human body
does not constructively inform the decision of a woman of the State's interest
in the preservation of the woman's health or demonstrate the State's "profound
respect for the potential life she carries within her." Id., at 35. |
| [507] | 8 The Court's decision in Hodgson v. Minnesota, 497 U.S. 417 (1990), validating
a 48-hour waiting period for minors seeking an abortion to permit parental
involvement does not alter this Conclusion. Here the 24-hour delay is imposed
on an adult woman. See Hodgson, 497 U.S., at , n. 35 (slip op. 28-29, n.
35); Ohio v. Akron Ctr. for Reproductive Health, Inc., 497 U.S. 502, (1990).
Moreover, the statute in Hodgson did not require any delay once the minor
obtained the affirmative consent of either a parent or the court. |
| [508] | *fn9 Because this information
is so widely known, I am confident that a developed record can be made to
show that the 24-hour delay, "in a large fraction of the cases in which
[the restriction] is relevant, . . . will operate as a substantial obstacle
to a woman's choice to undergo an abortion." Ante, at 54. |
| [509] | *fn10 The judicial-bypass provision
does not cure this violation. Hodgson is distinguishable, since this case
involves more than parental involvement or approval -- rather, the Pennsylvania
law requires that the parent receive information designed to discourage
abortion in a face-to-face meeting with the physician. The bypass procedure
cannot ensure that the parent would obtain the information, since in many
instances, the parent would not even attend the hearing. A State may not
place any restriction on a young woman's right to an abortion, however irrational,
simply because it has provided a judicial bypass. |
| [510] | *fn11 Obviously, I do not share
the THE CHIEF JUSTICE'S of homosexuality as sexual deviance. See Bowers,
478 U.S., at 202-203, n.2(BLACKMUN, J., Dissenting). |
| [511] | *fn12 JUSTICE SCALIA urges
the Court to "get out of this area" and leave questions regarding
abortion entirely to the States. Post, at 22. Putting aside the fact that
what he advocates is nothing short of an abdication by the Court of its
constitutional responsibilities, JUSTICE SCALIA is uncharacteristically
naive if he thinks that overruling Roe and holding that restrictions on
a woman's right to an abortion are subject only to rational-basis review
will enable the Court henceforth to avoid reviewing abortion-related issues.
State efforts to regulate and prohibit abortion in a post- Roe world undoubtedly
would raise a host of distinct and important constitutional questions meriting
review by this Court. For example, does the Eighth Amendment impose any
limits on the degree or kind of punishment a State can inflict upon physicians
who perform, or women who undergo, abortions? What effect would differences
among States in their approaches to abortion have on a woman's right to
engage in interstate travel? Does the First Amendment permit States that
choose not to criminalize abortion to ban all advertising providing information
about where and how to obtain abortions? |
| [512] | 1 Two years after Roe, the West German constitutional court, by contrast,
struck down a law liberalizing access to abortion on the grounds that life
developing within the womb is constitutionally protected. Judgment of February
25, 1975, 39 BVerfGE 1 (translated in Jonas & Gorby, West German Abortion
Decision: A Contrast to Roe v. Wade, 9 J. Marshall J. Prac. & Proc.
605 (1976)). In 1988, the Canadian Supreme Court followed reasoning similar
to that of Roe in striking down a law which restricted abortion. Morgentaler
v. Queen, 1 S.C.R. 30, 44 D.L.R. 4th 385 (1988). |
| [513] | 2 The joint opinion of JUSTICES O'CONNOR, KENNEDY, and SOUTER appears
to ignore this point in concluding that the spousal notice provision imposes
an undue burden on the abortion decision. Ante, at 45-57. In most instances
the notification requirement operates without difficulty. As the District
Court found, the vast majority of wives seeking abortions notify and consult
with their husbands, and thus suffer no burden as a result of the provision.
744 F. Supp. 1323, 1360 (ED Pa. 1990). In other instances where a woman
does not want to notify her husband, the Act provides exceptions. For example,
notification is not required if the husband is not the father, if the pregnancy
is the result of a reported spousal sexual assault, or if the woman fears
bodily injury as a result of notifying her husband. Thus, in these instances
as well, the notification provision imposes no obstacle to the abortion
decision. |
| [514] | The joint opinion puts to one side these situations where the regulation
imposes no obstacle at all, and instead focuses on the group of married
women who would not otherwise notify their husbands and who do not qualify
for one of the exceptions. Having narrowed the focus, the joint opinion
concludes that in a "large fraction" of those cases, the notification
provision operates as a substantial obstacle, ante, at 53, and that the
provision is therefore invalid. There are certainly instances where a woman
would prefer not to notify her husband, and yet does not qualify for an
exception. For example, there are the situations of battered women who fear
psychological abuse or injury to their children as a result of notification;
because in these situations the women do not fear bodily injury, they do
not qualify for an exception. And there are situations where a woman has
become pregnant as a result of an unreported spousal sexual assault; when
such an assault is unreported, no exception is available. But, as the District
Court found, there are also instances where the woman prefers not to notify
her husband for a variety of other reasons. See 744 F. Supp., at 1360. For
example, a woman might desire to obtain an abortion without her husband's
knowledge because of perceived economic constraints or her husband's previously
expressed opposition to abortion. The joint opinion concentrates on the
situations involving battered women and unreported spousal assault, and
assumes, without any support in the record, that these instances constitute
a "large fraction" of those cases in which women prefer not to
notify their husbands (and do not qualify for an exception). Ante, at 53.
This assumption is not based on any hard evidence, however. And were it
helpful to an attempt to reach a desired result, one could just as easily
assume that the battered women situations form 100 percent of the cases
where women desire not to notify, or that they constitute only 20 percent
of those cases. But reliance on such speculation is the necessary result
of adopting the undue burden standard. |
| [515] | 3 The definition in use at that time provided as follows: |
| [516] | "'Medical emergency.' -- That condition which, on the basis of the
physician's best clinical judgment, so complicates a pregnancy as to necessitate
the immediate abortion of same to avert the death of the mother or for which
a 24-hour delay will create grave peril of immediate and irreversible loss
of major bodily function." 18 Pa. Cons. Stat. Ann. § 3203 (Purdon 1983). |
| [517] | 1 The Court's suggestion, ante, at 5, that adherence to tradition would
require us to uphold laws against interracial marriage is entirely wrong.
Any tradition in that case was contradicted by a text -- an Equal Protection
Clause that explicitly establishes racial equality as a constitutional value.
See Loving v. Virginia, 388 U.S. 1, 9 (1967) ("In the case at bar,
. . . we deal with statutes containing racial classifications, and the fact
of equal application does not immunize the statute from the very heavy burden
of justification which the Fourteenth Amendment has traditionally required
of state statutes drawn according to race"); see also id., at 13 (Stewart,
J., Concurring in judgment). The enterprise launched in Roe, by contrast,
sought to establish -- in the teeth of a clear, contrary tradition -- a
value found nowhere in the constitutional text. |
| [518] | There is, of course, no comparable tradition barring recognition of a
"liberty interest" in carrying one's child to term free from state
efforts to kill it. For that reason, it does not follow that the Constitution
does not protect childbirth simply because it does not protect abortion.
The Court's contention, ante, at 17, that the only way to protect childbirth
is to protect abortion shows the utter bankruptcy of constitutional analysis
deprived of tradition as a validating factor. It drives one to say that
the only way to protect the right to eat is to acknowledge the constitutional
right to starve oneself to death. |
| [519] | 2 JUSTICE BLACKMUN's parade of adjectives is similarly empty: Abortion
is among "the most intimate and personal choices," ante, at 2-3;
it is a matter "central to personal dignity and autonomy," ibid.
; and it involves "personal decisions that profoundly affect bodily
integrity, identity, and destiny," ante, at 6. JUSTICE STEVENS is not
much less conclusory: The decision to choose abortion is a matter of "the
highest privacy and the most personal nature," ante, at 5; it involves
a "difficult choice having serious and personal consequences of major
importance to [a woman's] future," ibid. ; the authority to make this
"traumatic and yet empowering decision" is "an element of
basic human dignity," ibid. ; and it is "nothing less than a matter
of conscience," ibid. |
| [520] | 3 The joint opinion is clearly wrong in asserting, ante, at 32, that "the
Court's early abortion cases adhered to" the "undue burden"
standard. The passing use of that phrase in JUSTICE BLACKMUN's opinion for
the Court in Bellotti v. Baird, 428 U.S. 132, 147 (1976) (Bellotti I), was
not by way of setting forth the standard of unconstitutionality, as JUSTICE
O'CONNOR's later opinions did, but by way of expressing the conclusion of
unconstitutionality. Justice Powell for a time appeared to employ a variant
of "undue burden" analysis in several nonmajority opinions, see,
e.g., Bellotti v. Baird, 443 U.S. 622, 647 (1979) (plurality opinion of
Powell, J.) (Bellotti II); Carey v. Population Services International, 431
U.S. 678, 705 (1977) (Powell, J., Concurring in part and Concurring in judgment),
but he too ultimately rejected that standard in his opinion for the Court
in Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 420, n.
1 (1983) (Akron I). The joint opinion's reliance on Maher v. Roe, 432 U.S.
464, 473 (1977), and Harris v. McRae, 448 U.S. 297, 314 (1980), is entirely
misplaced, since those cases did not involve regulation of abortion but
mere refusal to fund it. In any event, JUSTICE O'CONNOR's earlier formulations
have apparently now proved unsatisfactory to the three Justices, who --
in the name of stare decisis no less -- today find it necessary to devise
an entirely new version of "undue burden" analysis, see ante,
at 35. |
| [521] | 4 The joint opinion further asserts that a law imposing an undue burden
on abortion decisions is not a "permissible" means of serving
"legitimate" state interests. Ante, at 34-35. This description
of the undue burden standard in terms more commonly associated with the
rational-basis test will come as a surprise even to those who have followed
closely our wanderings in this forsaken wilderness. See, e.g., Akron I,
(supra) , at 463 (O'CONNOR, J., Dissenting) ("The 'undue burden' .
. . represents the required threshold inquiry that must be conducted before
this Court can require a State to justify its legislative actions under
the exacting 'compelling state interest' standard"); see also Hodgson
v. Minnesota, 497 U.S. 417, (1990) (O'CONNOR, J., Concurring in part and
Concurring in judgment in part); Thornburgh v. American College of Obstetricians
and Gynecologists, 476 U.S. 747, 828 (1986) (O'CONNOR, J., Dissenting).
This confusing equation of the two standards is apparently designed to explain
how one of the Justices who joined the plurality opinion in Webster v. Reproductive
Health Services, 492 U.S. 490 (1989), which adopted the rational basis test,
could join an opinion expressly adopting the undue burden test. See id.,
at 520 (rejecting the view that abortion is a "fundamental right,"
instead inquiring whether a law regulating the woman's "liberty interest"
in abortion is "reasonably designed" to further "legitimate"
state ends). The same motive also apparently underlies the joint opinion's
erroneous citation of the plurality opinion in Ohio v. Akron Center for
Reproductive Health, 497 U.S. 502, (1990) (Akron II) (opinion of KENNEDY,
J.), as applying the undue burden test. See ante, at 34 (using this citation
to support the proposition that "two of us" -- i. e., two of the
authors of the joint opinion -- have previously applied this test). In fact,
Akron II does not mention the undue burden standard until the Conclusion
of the opinion, when it states that the statute at issue "does not
impose an undue, or otherwise unconstitutional, burden." 497 U.S.,
at 519 (emphasis added). I fail to see how anyone can think that saying
a statute does not impose an unconstitutional burden under any standard,
including the undue burden test, amounts to adopting the undue burden test
as the exclusive standard. The Court's citation of Hodgson as reflecting
JUSTICE KENNEDY's and JUSTICE O'CONNOR's "shared premises," ante,
at 35-36, is similarly inexplicable, since the word "undue" was
never even used in the former's opinion in that case. I joined JUSTICE KENNEDY's
opinions in both Hodgson and Akron II ; I should be grateful, I suppose,
that the joint opinion does not claim that I, too, have adopted the undue
burden test. |
| [522] | 5 Of course JUSTICE O'CONNOR was correct in her former view. The arbitrariness
of the viability line is confirmed by the Court's inability to offer any
justification for it beyond the conclusory assertion that it is only at
that point that the unborn child's life "can in reason and all fairness"
be thought to override the interests of the mother, ante, at 28. Precisely
why is it that, at the magical second when machines currently in use (though
not necessarily available to the particular woman) are able to keep an unborn
child alive apart from its mother, the creature is suddenly able (under
our Constitution) to be protected by law, whereas before that magical second
it was not? That makes no more sense than according infants legal protection
only after the point when they can feed themselves. |
| [523] | 6 The joint opinion is not entirely faithful to this principle, however.
In approving the District Court's factual findings with respect to the spousal
notice provision, it relies extensively on non-record materials, and in
reliance upon them adds a number of factual Conclusions of its own. Ante,
at 49-52. Because this additional factfinding pertains to matters that surely
are "subject to reasonable dispute," Fed. Rule Evid. 201(b), the
joint opinion must be operating on the premise that these are "legislative"
rather than "adjudicative" facts, see Rule 201(a). But if a court
can find an undue burden simply by selectively string-citing the right social
science articles, I do not see the point of emphasizing or requiring "detailed
factual findings" in the District Court. |
| [524] | 7 JUSTICE BLACKMUN's effort to preserve as much of Roe as possible leads
him to read the joint opinion as more "constant" and "steadfast"
than can be believed. He contends that the joint opinion's "undue burden"
standard requires the application of strict scrutiny to "all non- de
minimis " abortion regulations, ante, at 5, but that could only be
true if a "substantial obstacle," ante, at 34 (joint opinion),
were the same thing as a non- de minimis obstacle -- which it plainly is
not. |
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