|||SUPREME COURT OF THE UNITED STATES
476 U.S. 747, 106 S. Ct. 2169, 90 L. Ed. 2d 779, 54 U.S.L.W. 4618
|||June 11, 1986
|||THORNBURGH, GOVERNOR OF PENNSYLVANIA ET AL.
AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS ET AL.
|||APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.
|||Andrew S. Gordon, Senior Deputy Attorney General of Pennsylvania, argued
the cause for appellants. With him on the briefs were LeRoy S. Zimmerman,
Attorney General, and Allen C. Warshaw, Chief Deputy Attorney General.
|||Kathryn Kolbert argued the cause for appellees. With her on the brief
was Thomas E. Zemaitis.*
|||Blackmun, J., delivered the opinion of the Court, in which Brennan, Marshall,
Powell, and Stevens, JJ., joined. Stevens, J., filed a Concurring opinion,
post, p. 772. Burger, C. J., filed a Dissenting opinion, post, p. 782. White,
J., filed a Dissenting opinion, in which Rehnquist, J., joined, post, p.
785. O'connor, J., filed a Dissenting opinion, in which Rehnquist, J., joined,
post, p. 814.
|||The opinion of the court was delivered by: Blackmun
|||Appellees brought an action in Federal District Court alleging that the
Pennsylvania Abortion Control Act of 1982 violated the Federal Constitution
and seeking declaratory and injunctive relief. The court denied appellees'
motion for a preliminary injunction, except as to one provision of the Act
which it held was invalid. The Court of Appeals, after granting appellees'
motion to enjoin enforcement of the entire Act, held unconstitutional, on
the basis of the intervening decisions in Akron v. Akron Center for Reproductive
Health, Inc., 462 U.S. 416, Planned Parenthood Assn. of Kansas City, Mo.,
Inc. v. Ashcroft, 462 U.S. 476, and Simopoulos v. Virginia, 462 U.S. 506,
the following provisions of the Act: (1) the portions of § 3205 that, with
respect to the requirement that the woman give her "informed consent"
to an abortion, require her to be informed of the name of the physician
who will perform the abortion, the "particular medical risks"
of the abortion procedure to be used and of carrying her child to term,
and the facts that there may be "detrimental physical and psychological
effects," medical assistance benefits may be available for prenatal
care, childbirth, and neonatal care, the father is liable to assist in the
child's support, and printed materials are available from the State that
describe the fetus and list agencies offering alternatives to abortion;
(2) § 3208 that requires such printed materials to include a statement that
there are agencies willing to help the mother carry her child to term and
to assist her after the child is born and a description of the probable
anatomical and physiological characteristics of an unborn child at "two-week
gestational increments"; (3) §§ 3214(a) and (h) that require the physician
to report, among other things, identification of the performing and referring
physicians, information as to the woman's residence, age, race, marital
status, and number of prior pregnancies, and the basis for any judgment
that a medical emergency existed or for any determination of nonviability,
and the method of payment for the abortion, and further provide that such
reports shall not be deemed public records but shall be available for public
inspection and copying in a form that will not lead to disclosure of the
identity of any person filing a report; (4) § 3211(a) that requires the
physician, after the first trimester, to report the basis for his determination
that a child is not viable; (5) § 3210(b) that requires a physician performing
a postviability abortion to exercise the degree of care required to preserve
the life and health of any unborn child intended to be born and to use the
abortion technique that would provide the best opportunity for the unborn
child to be aborted alive unless it would present a significantly greater
medical risk to the pregnant woman's life or health; and (6) § 3210(c) that
requires that a second physician be present during an abortion performed
when viability is possible, which physician is to take all reasonable steps
necessary to preserve the child's life and health. The court held that the
validity of other provisions of the Act might depend on evidence adduced
at the trial and accordingly remanded these features of the case to the
|||1. In a situation such as is presented by this case, where the judgment
below is not final and the case is remanded for further development of the
facts, this Court has no appellate jurisdiction under 28 U. S. C. § 1254(2).
But the jurisdictional statement here is treated as a petition for certiorari,
and the writ is granted. Pp. 754-755.
|||2. With a full record before it on the issues as to the validity of the
Act and with the intervening decisions in Akron, Ashcroft, and Simopoulos
at hand, the Court of Appeals was justified in proceeding to plenary review
of those issues. It was not limited to determining whether the District
Court abused its discretion in denying a preliminary injunction. Pp. 755-757.
|||3. The States are not free, under the guise of protecting maternal health
or potential life, to intimidate women into continuing pregnancies. The
provisions of the Pennsylvania Act that the Court of Appeals invalidated
wholly subordinate constitutional privacy interests and concerns with maternal
health to the effort to deter a woman from making a decision that, with
her physician, is hers to make. Pp. 758-771.
|||(a) The printed materials required by §§ 3205 and 3208 are nothing less
than an attempt to wedge the State's message discouraging abortion into
the privacy of the informed-consent dialogue between the woman and her physician.
Similarly, § 3205's requirement that the woman be advised that medical assistance
may be available and that the father is responsible for financial assistance
in support of the child are poorly disguised elements of discouragement
for the abortion decision. And § 3205's requirements that the physician
inform the woman of "detrimental physical and psychological effects"
and of all "particular medical risks" are the antithesis of informed
consent. Pp. 759-765.
|||(b) The scope of the information required by §§ 3214(a) and (h) and 3211(a)
and its availability to the public belie any assertions by the State that
it is advancing any legitimate interest. The reporting requirements of those
sections raise the specter of public exposure and harassment of women who
choose to exercise their personal, intensely private, right, with their
physician, to end a pregnancy. Thus, they pose an unacceptable danger of
deterring the exercise of that right and must be invalidated. Pp. 765-768.
|||(c) Section 3210(b) is facially invalid as being unsusceptible to a construction
that does not require the mother to bear an increased medical risk in order
save her viable fetus. Section 3210(c), by failing to provide a medical-emergency
exception for the situation where the mother's health is endangered by delay
in the second physician's arrival, chills the performance of a late abortion,
which, more than one performed at an earlier date, tends to be under emergency
conditions. Pp. 768-771.
|||JUSTICE BLACKMUN delivered the opinion of the Court.
|||This is an appeal from a judgment of the United States Court of Appeals
for the Third Circuit reviewing the District Court's rulings upon a motion
for a preliminary injunction. The Court of Appeals held unconstitutional
several provisions of Pennsylvania's current Abortion Control Act, 1982
Pa. Laws, Act No. 138, now codified as 18 Pa. Cons. Stat. § 3201 et seq.
(1982). *fn1 Among the provisions
ruled invalid by the Court of Appeals were portions of § 3205, relating
to "informed consent"; § 3208, concerning "printed information";
§§ 3210(b) and (c), having to do with postviability abortions; and § 3211(a)
and §§ 3214(a) and (h), regarding reporting requirements. *fn2
|||The Abortion Control Act was approved by the Governor of the Commonwealth
on June 11, 1982. By its own terms, however, see § 7 of the Act, it was
to become effective only 180 days thereafter, that is, on the following
December 8. It had been offered as an amendment to a pending bill to regulate
|||The 1982 Act was not the Commonwealth's first attempt, after this Court's
1973 decisions in Roe v. Wade, 410 U.S. 113, and Doe v. Bolton, 410 U.S.
179, to impose abortion restraints. The State's first post-1973 Abortion
Control Act, 1974 Pa. Laws, Act No. 209, was passed in 1974 over the Governor's
veto. After extensive litigation, various provisions of the 1974 statute
were ruled unconstitutional, including those relating to spousal or parental
consent, to the choice of procedure for a postviability abortion, and to
the proscription of abortion advertisements. See Planned Parenthood Assn.
v. Fitzpatrick, 401 F.Supp. 554 (ED Pa. 1975), summarily aff'd in part sub
nom. Franklin v. Fitzgerald, 428 U.S. 901 (1976), and summarily vacated
in part and remanded sub nom. Beal v. Franklin, 428 U.S. 901 (1976), modified
on remand (No. 74-2440) (ED Pa. 1977), aff'd sub nom. Colautti v. Franklin,
439 U.S. 379 (1979). See also Doe v. Zimmerman, 405 F.Supp. 534 (MD Pa.
|||In 1978, the Pennsylvania Legislature attempted to restrict access to
abortion by limiting medical-assistance funding for the procedure. 2 1978
Pa. Laws, Act No. 16A (pp. 1506-1507) and 1 1978 Pa. Laws, Act No. 148.
This effort, too, was successfully challenged in federal court, Roe v. Casey,
464 F.Supp. 487 (ED Pa. 1978), and that judgment was affirmed by the Third
Circuit. 623 F.2d 829 (1980).
|||In 1981, abortion legislation was proposed in the Pennsylvania House as
an amendment to a pending Senate bill to outlaw "tough-guy competitions."
*fn3 The suggested amendment, aimed
at limiting abortions, was patterned after a model statute developed by
a Chicago-based, nonprofit anti-abortion organization. See Note, Toward
Constitutional Abortion Control Legislation: The Pennsylvania Approach,
87 Dick. L. Rev. 373, 382, n. 84 (1983). The bill underwent further change
in the legislative process but, when passed, was vetoed by the Governor.
See 737 F.2d 283, 288-289 (CA3 1984). Finally, the 1982 Act was formulated,
enacted, and approved.
|||After the passage of the Act, but before its effective date, the present
litigation was instituted in the United States District Court for the Eastern
District of Pennsylvania. The plaintiffs, who are the appellees here, were
the American College of Obstetricians and Gynecologists, Pennsylvania Section;
certain physicians licensed in Pennsylvania; clergymen; an individual who
purchases from a Pennsylvania insurer health-care and disability insurance
extending to abortions; and Pennsylvania abortion counselors and providers.
Alleging that the Act violated the United States Constitution, the plaintiffs,
pursuant to 42 U. S. C. § 1983, sought declaratory and injunctive relief.
The defendants named in the complaint were the Governor of the Commonwealth,
other Commonwealth officials, and the District Attorney for Montgomery County,
|||The plaintiffs promptly filed a motion for a preliminary injunction. Forty-one
affidavits accompanied the motion. The defendants, on their part, submitted
what the Court of Appeals described as "an equally comprehensive opposing
memorandum." 737 F.2d, at 289. The District Court then ordered the
parties to submit a "stipulation of uncontested facts," as authorized
by local rule. The parties produced a stipulation "solely for purposes
of a determination on plaintiffs' motion for preliminary injunction,"
and "without prejudice to any party's right to controvert any facts
or to prove any additional facts at any later proceeding in this action."
|||Relying substantially on the opinions of the respective Courts of Appeals
in Akron Center for Reproductive Health, Inc. v. City of Akron, 651 F.2d
1198 (CA6 1981), later aff'd in part and rev'd in part, 462 U.S. 416 (1983),
and in Planned Parenthood Assn. of Kansas City v. Ashcroft, 655 F.2d 848
(CA8 1981), later aff'd in part and rev'd in part, 462 U.S. 476 (1983),
the District Court concluded that, with one exception, see n. 1, (supra)
, the plaintiffs had failed to establish a likelihood of success on the
merits and thus were not entitled to preliminary injunctive relief. 552
F.Supp. 791 (1982).
|||Appellees appealed from the denial of the preliminary injunction, and
appellants cross-appealed with respect to the single statutory provision
as to which the District Court had allowed relief. The Third Circuit then
granted appellees' motion to enjoin enforcement of the entire Act pending
appeal. After expedited briefing and argument, the court withheld judgment
pending the anticipated decisions by this Court in Akron, supra, Ashcroft,
supra, and Simopoulos v. Commonwealth, 221 Va. 1059, 277 S. E. 2d 194 (1981),
all of which had been accepted for review here, had been argued, and were
under submission. Those three cases were decided by this Court on June 15,
1983. See Akron v. Akron Center for Reproductive Health, Inc., 462 U.S.
416; Planned Parenthood Assn. of Kansas City, Missouri, Inc. v. Ashcroft,
462 U.S. 476; Simopoulos v. Virginia, 462 U.S. 506. After reargument in
light of those decisions, the Court of Appeals, with one Judge Concurring
in part and Dissenting in part, ruled that various provisions of the Act
were unconstitutional. 737 F.2d 283 (1984). Appellants' petition for rehearing
en banc was denied, with four Judges voting to grant the petition. Id.,
at 316, 317. When a jurisdictional statement was filed here, we postponed
further consideration of the question of our jurisdiction to the hearing
on the merits. 471 U.S. 1014 (1985).
|||We are confronted initially with the question whether we have appellate
jurisdiction in this case. Appellants purport to have taken their appeal
to this Court pursuant to 28 U. S. C. § 1254(2). *fn4
It seems clear, and the parties appear to agree, see Brief for Appellants
21, that the judgment of the Court of Appeals was not a final judgment in
the ordinary meaning of that term. The court did not hold the entire Act
unconstitutional, but ruled, instead, that some provisions were invalid
under Akron, Ashcroft, and Simopoulos, and that the validity of other provisions
might depend on evidence adduced at the trial, see 737 F.2d, at 299-300,
or on procedural rules to be promulgated by the Supreme Court of Pennsylvania,
see id., at 296-297. It remanded these features of the case to the District
Court. Id., at 304.
|||Slaker v. O'Connor, 278 U.S. 188, 189-190 (1929), and McLish v. Roff,
141 U.S. 661, 665-666 (1891), surely suggest that, under these circumstances,
we do not have appellate jurisdiction. *fn5
See also South Carolina Electric & Gas Co. v. Flemming, 351 U.S. 901
(1956). Although the authority of Slaker and South Carolina Electric has
been questioned, the Court to date has found it unnecessary to put the issue
to rest. See Doran v. Salem Inn, Inc., 422 U.S. 922, 927 (1975); Renton
v. Playtime Theatres, Inc., 475 U.S. 41, 43-44, n. 1 (1986). In some cases
raising this issue of the scope of appellate jurisdiction, the Court has
found any finality requirement to have been satisfied in light of the facts.
See, e. g., New Orleans v. Dukes, 427 U.S. 297, 302 (1976); Chicago v. Atchison,
T. & S.F.R. Co., 357 U.S. 77, 82-83 (1958). In other cases, the Court
has avoided the issue by utilizing 28 U. S. C. § 2103 and granting certiorari.
See, e. g., Doran, 422 U.S., at 927; El Paso v. Simmons, 379 U.S. 497, 503
(1965); see also Escambia County v. McMillan, 466 U.S. 48, 50, n. 4 (1984).
|||We have concluded that it is time that this undecided issue be resolved.
We therefore hold, on the reasoning of McLish v. Roff, 141 U.S., at 665-668,
that in a situation such as this one, where the judgment is not final, and
where the case is remanded for further development of the facts, we have
no appellate jurisdiction under § 1254(2).
|||We nevertheless treat appellants' jurisdictional statement as a petition
for certiorari, grant the writ, and move on to the merits. *fn6
|||Appellants assert that the Court of Appeals erred in holding portions
of the Act unconstitutional since the scope of its review of the District
Court's denial of a preliminary injunction as to those sections should have
been limited to determining whether the trial court abused its discretion
in finding the presence or absence of irreparable harm and a probability
that the plaintiffs would succeed on the merits. Such limited review normally
is appropriate, see Doran v. Salem Inn, Inc., 422 U.S., at 931-932; Brown
v. Chote, 411 U.S. 452, 456-457 (1973), inasmuch as the primary purpose
of a preliminary injunction is to preserve the relative positions of the
parties. See University of Texas v. Camenisch, 451 U.S. 390, 395 (1981).
Further, the necessity for an expeditious resolution often means that the
injunction is issued on a procedure less stringent than that which prevails
at the subsequent trial on the merits of the application for injunctive
relief. See United States Steel Corp. v. Fraternal Assn. of Steelhaulers,
431 F.2d 1046, 1048 (CA3 1970); see also Mayo v. Lakeland Highlands Canning
Co., 309 U.S. 310, 316 (1940).
|||This approach, however, is not inflexible. The Court on more than one
occasion in this area has approved proceedings deviating from the stated
norm. In Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952),
the District Court had issued a preliminary injunction restraining the Secretary
of Commerce from seizing the Nation's steel mills. The Court of Appeals
stayed the injunction. This Court found that the case was ripe for review,
despite the early stage of the litigation, and went on to address the merits.
Id., at 585. And in Smith v. Vulcan Iron Works, 165 U.S. 518 (1897), the
District Court issued injunctions in two patent cases and referred them
to a Master for accounting. The Court of Appeals reversed. This Court ruled
that the Court of Appeals had acted properly in deciding the merits since
review of interlocutory appeals was designed not only to permit the defendant
to obtain immediate relief but also in certain cases to save the parties
the expense of further litigation. Id., at 525.
|||The Third Circuit's decision to address the constitutionality of the Pennsylvania
Act finds further support in this Court's decisions that when the unconstitutionality
of the particular state action under challenge is clear, a federal court
need not abstain from addressing the constitutional issue pending state-court
review. See, e. g., Bailey v. Patterson, 369 U.S. 31, 33 (1962); Turner
v. City of Memphis, 369 U.S. 350, 353 (1962); Zwickler v. Koota, 389 U.S.
241, 251, n. 14 (1967). See also Singleton v. Wulff, 428 U.S. 106, 121 (1976).
See generally Spann, Simple Justice, 73 Geo. L. J. 1041, 1055, n. 77 (1985).
|||Thus, as these cases indicate, if a district court's ruling rests solely
on a premise as to the applicable rule of law, and the facts are established
or of no controlling relevance, that ruling may be reviewed even though
the appeal is from the entry of a preliminary injunction. *fn8
The Court of Appeals in this case properly recognized and applied these
principles when it observed:
|||"Thus, although this appeal arises from a ruling on a request for
a preliminary injunction, we have before us an unusually complete factual
and legal presentation from which to address the important constitutional
issues at stake. The customary discretion accorded to a District Court's
ruling on a preliminary injunction yields to our plenary scope of review
as to the applicable law." 737 F.2d, at 290.
|||That a court of appeals ordinarily will limit its review in a case of
this kind to abuse of discretion is a rule of orderly judicial administration,
not a limit on judicial power. With a full record before it on the issues
now before us, and with the intervening decisions in Akron, Ashcroft, and
Simopoulos at hand, the Court of Appeals was justified in proceeding to
plenary review of those issues.
|||This case, as it comes to us, concerns the constitutionality of six provisions
of the Pennsylvania Act that the Court of Appeals struck down as facially
invalid: § 3205 ("informed consent"); § 3208 ("printed information");
§§ 3214(a) and (h) (reporting requirements); § 3211(a) (determination of
viability); § 3210(b) (degree of care required in postviability abortions);
and § 3210(c) (second-physician requirement). We have no reason to address
the validity of the other sections of the Act challenged in the District
|||Less than three years ago, this Court, in Akron, Ashcroft, and Simopoulos,
reviewed challenges to state and municipal legislation regulating the performance
of abortions. In Akron, the Court specifically reaffirmed Roe v. Wade, 410
U.S. 113 (1973). See 462 U.S., at 420, 426-431. Again today, we reaffirm
the general principles laid down in Roe and in Akron.
|||In the years since this Court's decision in Roe, States and municipalities
have adopted a number of measures seemingly designed to prevent a woman,
with the advice of her physician, from exercising her freedom of choice.
Akron is but one example. But the constitutional principles that led this
Court to its decisions in 1973 still provide the compelling reason for recognizing
the constitutional dimensions of a woman's right to decide whether to end
her pregnancy. " should go without saying that the vitality of these
constitutional principles cannot be allowed to yield simply because of disagreement
with them." Brown v. Board of Education, 349 U.S. 294, 300 (1955).
The States are not free, under the guise of protecting maternal health or
potential life, to intimidate women into continuing pregnancies. Appellants
claim that the statutory provisions before us today further legitimate compelling
interests of the Commonwealth. Close analysis of those provisions, however,
shows that they wholly subordinate constitutional privacy interests and
concerns with maternal health in an effort to deter a woman from making
a decision that, with her physician, is hers to make.
|||We turn to the challenged statutes:
|||1. Section 3205 ("informed consent") and § 3208 ("printed
information"). Section 3205(a) requires that the woman give her "voluntary
and informed consent" to an abortion. Failure to observe the provisions
of § 3205 subjects the physician to suspension or revocation of his license,
and subjects any other person obligated to provide information relating
to informed consent to criminal penalties. § 3205(c). A requirement that
the woman give what is truly a voluntary and informed consent, as a general
proposition, is, of course, proper and is surely not unconstitutional. See
Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 67 (1976).
But the State may not require the delivery of information designed "to
influence the woman's informed choice between abortion or childbirth."
Akron, 462 U.S., at 443-444.
|||Appellants refer to the Akron ordinance, Brief for Appellants 67, as did
this Court in Akron itself, 462 U.S., at 445, as "a litany of information"
and as "'a parade of horribles'" of dubious validity plainly designed
to influence the woman's choice. They would distinguish the Akron situation,
however, from the Pennsylvania one. Appellants assert that statutes "describing
the general subject matter relevant to informed consent," ibid., and
stating "in general terms the information to be disclosed," id.,
at 447, are permissible, and they further assert that the Pennsylvania statutes
do no more than that.
|||We do not agree. We conclude that, like Akron's ordinance, §§ 3205 and
3208 fail the Akron measurement. The two sections prescribe in detail the
method for securing "informed consent." Seven explicit kinds of
information must be delivered to the woman at least 24 hours before her
consent is given, and five of these must be presented by the woman's physician.
The five are: (a) the name of the physician who will perform the abortion,
(b) the "fact that there may be detrimental physical and psychological
effects which are not accurately foreseeable," (c) the "particular
medical risks associated with the particular abortion procedure to be employed,"
(d) the probable gestational age, and (e) the "medical risks associated
with carrying her child to term." The remaining two categories are
(f) the "fact that medical assistance benefits may be available for
prenatal care, childbirth and neonatal care," and (g) the "fact
that the father is liable to assist" in the child's support, "even
in instances where the father has offered to pay for the abortion."
§§ 3205(a)(1) and (2). The woman also must be informed that materials printed
and supplied by the Commonwealth that describe the fetus and that list agencies
offering alternatives to abortion are available for her review. If she chooses
to review the materials but is unable to read, the materials "shall
be read to her," and any answer she seeks must be "provided her
in her own language." § 3205(a)(2)(iii). She must certify in writing,
prior to the abortion, that all this has been done. § 3205(a)(3). The printed
materials "shall include the following statement":
|||"'There are many public and private agencies willing and able to
help you to carry your child to term, and to assist you and your child after
your child is born, whether you choose to keep your child or place her or
him for adoption. The Commonwealth of Pennsylvania strongly urges you to
contact them before making a final decision about abortion. The law requires
that your physician or his agent give you the opportunity to call agencies
like these before you undergo an abortion.'" § 3208(a)(1).
|||The materials must describe the "probable anatomical and physiological
characteristics of the unborn child at two-week gestational increments from
fertilization to full term, including any relevant information on the possibility
of the unborn child's survival." § 3208(a)(2).
|||In Akron, this Court noted: "The validity of an informed consent
requirement thus rests on the State's interest in protecting the health
of the pregnant woman." 462 U.S., at 443. The Court went on to state:
|||"This does not mean, however, that a State has unreviewable authority
to decide what information a woman must be given before she chooses to have
an abortion. It remains primarily the responsibility of the physician to
ensure that appropriate information is conveyed to his patient, depending
on her particular circumstances. Danforth 's recognition of the State's
interest in ensuring that this information be given will not justify abortion
regulations designed to influence the woman's informed choice between abortion
or childbirth." Id., at 443-444.
|||The informational requirements in the Akron ordinance were invalid for
two "equally decisive" reasons. Id., at 445. The first was that
"much of the information required is designed not to inform the woman's
consent but rather to persuade her to withhold it altogether." Id.,
at 444. The second was that a rigid requirement that a specific body of
information be given in all cases, irrespective of the particular needs
of the patient, intrudes upon the discretion of the pregnant woman's physician
and thereby imposes the "undesired and uncomfortable straitjacket"
with which the Court in Danforth, 428 U.S., at 67, n. 8, was concerned.
|||These two reasons apply with equal and controlling force to the specific
and intrusive informational prescriptions of the Pennsylvania statutes.
The printed materials required by §§ 3205 and 3208 seem to us to be nothing
less than 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. The mandated description of fetal characteristics at
2-week intervals, no matter how objective, is plainly overinclusive. This
is not medical information that is always relevant to the woman's decision,
and it may serve only to confuse and punish her and to heighten her anxiety,
contrary to accepted medical practice. *fn10
Even 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. See
Women's Medical Center of Providence, Inc. v. Roberts, 530 F.Supp. 1136,
1154 (RI 1982). 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.
|||The requirements of §§ 3205(a)(2)(i) and (ii) 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 would be non-medical information beyond the physician's area
of expertise and, 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.
And a victim of rape should not have to hear gratuitous advice that an unidentified
perpetrator is liable for support if she continues the pregnancy to term.
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.
|||The requirements of §§ 3205(a)(1)(ii) and (iii) that the woman be informed
by the physician of "detrimental physical and psychological effects"
and of all "particular medical risks" compound the problem of
medical attendance, increase the patient's anxiety, and intrude upon the
physician's exercise of proper professional judgment. This type of compelled
information is the antithesis of informed consent. 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. Pennsylvania, like Akron,
"has gone far beyond merely describing the general subject matter relevant
to informed consent." Akron, 462 U.S., at 445. In addition, the Commonwealth
would require the physician to recite its litany "regardless of whether
in his judgment the information is relevant to [the patient's] personal
decision." Ibid. These statutory defects cannot be saved by any facts
that might be forthcoming at a subsequent hearing. Section 3205's informational
requirements therefore are facially unconstitutional. *fn11
|||Appellants assert, however, that even if this be so, the remedy is to
allow the remainder of § 3205 to be severed and become effective. We rule
otherwise. The radical dissection necessary for this would leave § 3205
with little resemblance to that intended by the Pennsylvania Legislature.
We rejected a similar suggestion as to the ordinance in Akron, 462 U.S.,
at 445, n. 37, despite the presence there of a broad severability clause.
We reach the same Conclusion here, where no such clause is present, and
reject the plea for severance. See Carter v. Carter Coal Co., 298 U.S. 238,
|||2. Sections 3214(a) and (h) (reporting) and § 3211 (a)(determination of
viability). Section 3214(a)(8), part of the general reporting section, incorporates
§ 3211(a). Section 3211(a) requires the physician to report the basis for
his determination "that a child is not viable." It applies only
after the first trimester. The report required by §§ 3214(a) and (h) is
detailed and must include, among other things, identification of the performing
and referring physicians and of the facility or agency; information as to
the woman's political subdivision and State of residence, age, race, marital
status, and number of prior pregnancies; the date of her last menstrual
period and the probable gestational age; the basis for any judgment that
a medical emergency existed; the basis for any determination of nonviability;
and the method of payment for the abortion. The report is to be signed by
the attending physician. § 3214(b).
|||Despite the fact that § 3214(e)(2) provides that such reports "shall
not be deemed public records," within the meaning of the Commonwealth's
"Right-to-Know Law," Pa. Stat. Ann., Tit. 65, § 66.1 et seq. (Purdon
1959 and Supp. 1985), each report "shall be made available for public
inspection and copying within 15 days of receipt in a form which will not
lead to the disclosure of the identity of any person filing a report."
Similarly, the report of complications, required by § 3214(h), "shall
be open to public inspection and copying." A willful failure to file
a report required under § 3214 is "unprofessional conduct" and
the non-complying physician's license "shall be subject to suspension
or revocation." § 3214(i)(1).
|||The scope of the information required and its availability to the public
belie any assertions by the Commonwealth that it is advancing any legitimate
interest. In Planned Parenthood of Central Missouri. v. Danforth, 428 U.S.,
at 80, we recognized 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."
But the reports required under the Act before us today go well beyond the
health-related interests that served to justify the Missouri reports under
consideration in Danforth. Pennsylvania would require, as Missouri did not,
information as to method of payment, as to the woman's personal history,
and as to the bases for medical judgments. The Missouri reports were to
be used "only for statistical purposes." See id., at 87. They
were to be maintained in confidence, with the sole exception of public health
officers. In Akron, the Court explained its holding in Danforth when it
said: "The decisive factor was that the State met its burden of demonstrating
that these regulations furthered important health-related state concerns."
462 U.S., at 430.
|||The required Pennsylvania reports, on the other hand, while claimed not
to be "public," are available nonetheless to the public for copying.
Moreover, there is no limitation on the use to which the Commonwealth or
the public copiers may put them. The elements that proved persuasive for
the ruling in Danforth are absent here. The decision to terminate a pregnancy
is an intensely private one that must be protected in a way that assures
anonymity. JUSTICE STEVENS, in his opinion Concurring in the judgment in
Bellotti v. Baird, 443 U.S. 622 (1979), aptly observed:
|||"It is inherent in the right to make the abortion decision that the
right may be exercised without public scrutiny and in defiance of the contrary
opinion of the sovereign or other third parties." Id., at 655.
|||A woman and her physician will necessarily be more reluctant to choose
an abortion if there exists a possibility that her decision and her identity
will become known publicly. Although the statute does not specifically require
the reporting of the woman's name, the amount of information about her and
the circumstances under which she had an abortion are so detailed that identification
is likely. Identification is the obvious purpose of these extreme reporting
requirements. *fn12 The "impermissible
limits" that Danforth mentioned and that Missouri approached, see 428
U.S., at 81, have been exceeded here.
|||We note, as we reach this Conclusion, that the Court consistently has
refused to allow government to chill the exercise of constitutional rights
by requiring disclosure of protected, but sometimes unpopular, activities.
See, e. g., Lamont v. Postmaster General, 381 U.S. 301 (1965) (invalidating
Post Office requirement that addressee affirmatively request delivery of
"communist" materials in order to receive them); Talley v. California,
362 U.S. 60, 64-65 (1960) (striking down municipal ban on unsigned handbills);
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462-465 (1958) (invalidating
compelled disclosure of NAACP membership list). Pennsylvania's reporting
requirements raise the specter of public exposure and harassment of women
who choose to exercise their personal, intensely private, right, with their
physician, to end a pregnancy. Thus, they pose an unacceptable danger of
deterring the exercise of that right, and must be invalidated.
|||3. Section 3210(b) (degree of care for postviability abortions) and §
3210(c) (second-physician requirement when the fetus is possibly viable).
Section 3210(b) *fn13 sets forth
two independent requirements for a postviability abortion. First, it demands
the exercise of that degree of care "which such person would be required
to exercise in order to preserve the life and health of any unborn child
intended to be born and not aborted." Second, "the abortion technique
employed shall be that which would provide the best opportunity for the
unborn child to be aborted alive unless," in the physician's good-faith
judgment, that technique "would present a significantly greater medical
risk to the life or health of the pregnant woman." An intentional,
knowing, or reckless violation of this standard is a felony of the third
degree, and subjects the violator to the possibility of imprisonment for
not more than seven years and to a fine of not more than $15,000. See 18
Pa. Cons. Stat. §§ 1101(2) and 1103(3) (1982).
|||The Court of Appeals ruled that § 3210(b) was unconstitutional because
it required a "trade-off" between the woman's health and fetal
survival, and failed to require that maternal health be the physician's
paramount consideration. 737 F.2d, at 300, citing Colautti v. Franklin,
439 U.S. 379, 397-401 (1979) (where Pennsylvania's 1974 Abortion Control
Act was reviewed). In Colautti, this Court recognized the undesirability
of any "'trade-off' between the woman's health and additional percentage
points of fetal survival." Id., at 400.
|||Appellants do not take any real issue with this proposition. See Brief
for Appellants 84-86. They argue instead, as did the District Court, see
552 F.Supp., at 806-807, that the statute's words "significantly greater
medical risk" for the life or health of the woman do not mean some
additional risk (in which case unconstitutionality apparently is conceded)
but only a "meaningfully increased" risk. That interpretation,
said the District Court, renders the statute constitutional. Id., at 807.
The Court of Appeals disagreed, pointing out that such a reading is inconsistent
with the statutory language and with the legislative intent reflected in
that language; that the adverb "significantly" modifies the risk
imposed on the woman; that the adverb is "patently not surplusage";
and that the language of the statute "is not susceptible to a construction
that does not require the mother to bear an increased medical risk in order
to save her viable fetus." 737 F.2d, at 300. We agree with the Court
of Appeals and therefore find the statute to be facially invalid. *fn14
|||Section 3210(c) *fn15 requires
that a second physician be present during an abortion performed when viability
is possible. The second physician is to "take control of the child
and . . . provide immediate medical care for the child, taking all reasonable
steps necessary, in his judgment, to preserve the child's life and health."
Violation of this requirement is a felony of the third degree.
|||In Planned Parenthood Assn. of Kansas City, Missouri, Inc. v. Ashcroft,
462 U.S. 476 (1983), the Court, by a 5-4 vote, but not by a controlling
single opinion, ruled that a Missouri statute requiring the presence of
a second physician during an abortion performed after viability was constitutional.
JUSTICE POWELL, joined by THE CHIEF JUSTICE, concluded that the State had
a compelling interest in protecting the life of a viable fetus and that
the second physician's presence provided assurance that the State's interest
was protected more fully than with only one physician in attendance. Id.,
at 482-486. *fn16 JUSTICE POWELL
recognized that, to pass constitutional muster, the statute must contain
an exception for the situation where the health of the mother was endangered
by delay in the arrival of the second physician. Recognizing that there
was "no clearly expressed exception" on the face of the Missouri
statute for the emergency situation, JUSTICE POWELL found the exception
implicit in the statutory requirement that action be taken to preserve the
fetus "provided it does not pose an increased risk to the life or health
of the woman." Id., at 485, n. 8.
|||Like the Missouri statute, § 3210(c) of the Pennsylvania statute contains
no express exception for an emergency situation. While the Missouri statute,
in the view of JUSTICE POWELL, was worded sufficiently to imply an emergency
exception, Pennsylvania's statute contains no such comforting or helpful
language and evinces no intent to protect a woman whose life may be at risk.
Section 3210(a) *fn17 provides
only a defense to criminal liability for a physician who concluded, in good
faith, that a fetus was nonviable "or that the abortion was necessary
to preserve maternal life or health." It does not relate to the second-physician
requirement and its words are not words of emergency.
|||It is clear that the Pennsylvania Legislature knows how to provide a medical-emergency
exception when it chooses to do so. It defined " emergency" in
general terms in § 3203, and it specifically provided a medical-emergency
exception with respect to informational requirements, § 3205(b); for parental
consent, § 3206; for post-first-trimester hospitalization, § 3209; and for
a public official's issuance of an order for an abortion without the express
voluntary consent of the woman, § 3215(f). We necessarily conclude that
the legislature's failure to provide a medical-emergency exception in §
3210(c) was intentional. All the factors are here for chilling the performance
of a late abortion, which, more than one performed at an earlier date, perhaps
tends to be under emergency conditions.
|||Constitutional rights do not always have easily ascertainable boundaries,
and controversy over the meaning of our Nation's most majestic guarantees
frequently has been turbulent. As Judges, however, we are sworn to uphold
the law even when its content gives rise to bitter dispute. See Cooper v.
Aaron, 358 U.S. 1 (1958). We recognized at the very beginning of our opinion
in Roe, 410 U.S., at 116, that abortion raises moral and spiritual questions
over which honorable persons can disagree sincerely and profoundly. But
those disagreements did not then and do not now relieve us of our duty to
apply the Constitution faithfully.
|||Our cases long have recognized that the Constitution embodies a promise
that a certain private sphere of individual liberty will be kept largely
beyond the reach of government. See, e. g., Carey v. Population Services
International, 431 U.S. 678 (1977); Moore v. East Cleveland, 431 U.S. 494
(1977); Eisenstadt v. Baird, 405 U.S. 438 (1972); Griswold v. Connecticut,
381 U.S. 479 (1965); Pierce v. Society of Sisters, 268 U.S. 510 (1925);
Meyer v. Nebraska, 262 U.S. 390 (1923). See also Whalen v. Roe, 429 U.S.
589, 598-600 (1977). That promise extends to women as well as to men. Few
decisions are more personal and intimate, more properly private, or more
basic to individual dignity and autonomy, than a woman's decision -- with
the guidance of her physician and within the limits specified in Roe --
whether to end her pregnancy. A woman's right to make that choice freely
is fundamental. Any other result, in our view, would protect inadequately
a central part of the sphere of liberty that our law guarantees equally
|||The Court of Appeals correctly invalidated the specified provisions of
Pennsylvania's 1982 Abortion Control Act. Its judgment is affirmed.
|||It is so ordered.
|||JUSTICE STEVENS, Concurring.
|||The scope of the individual interest in liberty that is given protection
by the Due Process Clause of the Fourteenth Amendment is a matter about
which conscientious Judges have long disagreed. Although I believe that
that interest is significantly broader than JUSTICE WHITE does, *fn1
I have always had the highest respect for his views on this subject. *fn2
In this case, although our ultimate Conclusions differ, it may be useful
to emphasize some of our areas of agreement in order to ensure that the
clarity of certain fundamental propositions not be obscured by his forceful
|||Let me begin with a reference to Griswold v. Connecticut, 381 U.S. 479
(1965), the case holding that a State may not totally forbid the use of
birth control devices. Although the Court's opinion relied on a "right
of marital privacy" within the "penumbra" of the Bill of
Rights, id., at 481-486, JUSTICE WHITE's Concurring opinion went right to
the heart of the issue. He wrote:
|||"It would be unduly repetitious, and belaboring the obvious, to expound
on the impact of this statute on the liberty guaranteed by the Fourteenth
Amendment against arbitrary or capricious denials or on the nature of this
liberty. Suffice it to say that this is not the first time this Court has
had occasion to articulate that the liberty entitled to protection under
the Fourteenth Amendment includes the right 'to marry, establish a home
and bring up children,' Meyer v. Nebraska, 262 U.S. 390, 399, and 'the liberty
. . . to direct the upbringing and education of children,' Pierce v. Society
of Sisters, 268 U.S. 510, 534-535, and that these are among 'the basic civil
rights of man.' Skinner v. Oklahoma, 316 U.S. 535, 541. These decisions
affirm that there is a 'realm of family life which the state cannot enter'
without substantial justification. Prince v. Massachusetts, 321 U.S. 158,
166. Surely the right invoked in this case, to be free of regulation of
the intimacies of the marriage relationship, ' to this Court with a momentum
for respect lacking when appeal is made to liberties which derive merely
from shifting economic arrangements.' Kovacs v. Cooper, 336 U.S. 77, 95
(opinion of Frankfurter, J.)." Id., at 502-503 (WHITE, J., Concurring
in the judgment).
|||He concluded that the statute could not be constitutionally applied to
married persons, explaining:
|||"I find nothing in this record justifying the sweeping scope of this
statute, with its telling effect on the freedoms of married persons, and
therefore conclude that it deprives such persons of liberty without due
process of law." Id ., at 507.
|||That Conclusion relied in part on the fact that the statute involved "sensitive
areas of liberty" *fn3 and
in part on the absence of any colorable justification for applying the statute
to married couples.
|||In Eisenstadt v. Baird, 405 U.S. 438 (1972), JUSTICE WHITE concluded that
a similar Massachusetts statute was invalid as applied to a person whom
the record did not identify as either married or unmarried, id., at 464-465,
and in Carey v. Population Services International, 431 U.S. 678 (1977),
he subscribed to this explanation of the holdings in Griswold and Eisenstadt
|||"The fatal fallacy in [the appellants'] argument is that it overlooks
the underlying premise of those decisions that the Constitution protects
'the right of the individual . . . to be free from unwarranted governmental
intrusion into . . . the decision whether to bear or beget a child.' [ Eisenstadt
v. Baird, 405 U.S.] at 453. Griswold did state that by 'forbidding the use
of contraceptives rather than regulating their manufacture or sale,' the
Connecticut statute there had 'a maximum destructive impact' on privacy
rights. 381 U.S., at 485. This intrusion into 'the sacred precincts of marital
bedrooms' made that statute particularly 'repulsive.' Id., at 485-486. But
subsequent decisions have made clear that the constitutional protection
of individual autonomy in matters of childbearing is not dependent on that
element. Eisenstadt v. Baird, holding that the protection is not limited
to married couples, characterized the protected right as the 'decision whether
to bear or beget a child.' 405 U.S., at 453 (emphasis added). Similarly,
Roe v. Wade, held that the Constitution protects 'a woman's decision whether
or not to terminate her pregnancy.' 410 U.S., at 153 (emphasis added). See
also Whalen v. Roe, [429 U.S. 589,] 599-600, and n. 26. These decisions
put Griswold in proper perspective. Griswold may no longer be read as holding
only that a State may not prohibit a married couple's use of contraceptives.
Read in light of its progeny, the teaching of Griswold is that the Constitution
protects individual decisions in matters of childbearing from unjustified
intrusion by the State." 431 U.S., at 687; id., at 702 (WHITE, J.,
Concurring in pertinent part and Concurring in result).
|||Thus, the aspect of liberty at stake in this case is the freedom from
unwarranted governmental intrusion into individual decisions in matters
of childbearing. As JUSTICE WHITE explained in Griswold, that aspect of
liberty comes to this Court with a momentum for respect that is lacking
when appeal is made to liberties which derive merely from shifting economic
|||Like the birth control statutes involved in Griswold and Baird, the abortion
statutes involved in Roe v. Wade, 410 U.S. 113 (1973), and in the case before
us today apply equally to decisions made by married persons and by unmarried
persons. Consistently with his views in those cases, JUSTICE WHITE agrees
that "a woman's ability to choose an abortion is a species of 'liberty'
that is subject to the general protections of the Due Process Clause."
Post, at 790. His agreement with that "indisputable" proposition,
ibid., is not qualified or limited to decisions made by pregnant women who
are married and, indeed, it would be a strange form of liberty if it were
|||Up to this point in JUSTICE WHITE's analysis, his opinion is fully consistent
with the accepted teachings of the Court and with the major premises of
Roe v. Wade. For reasons that are not entirely clear, however, JUSTICE WHITE
abruptly announces that the interest in "liberty" that is implicated
by a decision not to bear a child that is made a few days after conception
is less fundamental than a comparable decision made before conception. Post,
at 791-792. There may, of course, be a significant difference in the strength
of the countervailing state interest, but I fail to see how a decision on
childbearing becomes less important the day after conception than the day
before. Indeed, if one decision is more "fundamental" to the individual's
freedom than the other, surely it is the postconception decision that is
the more serious. Thus, it is difficult for me to understand how JUSTICE
WHITE reaches the Conclusion that restraints upon this aspect of a woman's
liberty do not "call into play anything more than the most minimal
judicial scrutiny." Post, at 790. *fn4
|||If JUSTICE WHITE were correct in regarding the post-conception decision
of the question whether to bear a child as a relatively unimportant, second-class
sort of interest, I might agree with his view that the individual should
be required to conform her decision to the will of the majority. But if
that decision commands the respect that is traditionally associated with
the "sensitive areas of liberty" protected by the Constitution,
as JUSTICE WHITE characterized reproductive decisions in Griswold, 381 U.S.,
at 503, no individual should be compelled to surrender the freedom to make
that decision for herself simply because her "value preferences"
are not shared by the majority. *fn5
In a sense, the basic question is whether the "abortion decision"
should be made by the individual or by the majority "in the unrestrained
imposition of its own, extraconstitutional value preferences." Post,
at 794. But surely JUSTICE WHITE is quite wrong in suggesting that the Court
is imposing value preferences on anyone else. Ibid. *fn6
|||JUSTICE WHITE is also surely wrong in suggesting that the governmental
interest in protecting fetal life is equally compelling during the entire
period from the moment of conception until the moment of birth. Post, at
795. Again, I recognize that a powerful theological argument can be made
for that position, but I believe our jurisdiction is limited to the evaluation
of secular state interests. *fn7
I should think it obvious that the State's interest in the protection of
an embryo -- even if that interest is defined as "protecting those
who will be citizens," ibid. -- increases progressively and dramatically
as the organism's capacity to feel pain, to experience pleasure, to survive,
and to react to its surroundings increases day by day. The development of
a fetus -- and pregnancy itself -- are not static conditions, and the assertion
that the government's interest is static simply ignores this reality.
|||Nor is it an answer to argue that life itself is not a static condition,
and that "there is no non-arbitrary line separating a fetus from a
child, or indeed, an adult human being," post, at 792. For, unless
the religious view that a fetus is a "person" is adopted -- a
view JUSTICE WHITE refuses to embrace, ibid. -- there is a fundamental and
well-recognized difference between a fetus and a human being; indeed, if
there is not such a difference, the permissibility of terminating the life
of a fetus could scarcely be left to the will of the state legislatures.
*fn8 And if distinctions may be
drawn between a fetus and a human being in terms of the state interest in
their protection -- even though the fetus represents one of "those
who will be citizens" -- it seems to me quite odd to argue that distinctions
may not also be drawn between the state interest in protecting the freshly
fertilized egg and the state interest in protecting the 9-month-gestated,
fully sentient fetus on the eve of birth. Recognition of this distinction
is supported not only by logic, but also by history *fn9
and by our shared experiences.
|||Turning to JUSTICE WHITE's comments on stare decisis, he is of course
correct in pointing out that the Court "has not hesitated to overrule
decisions, or even whole lines of cases, where experience, scholarship,
and reflection demonstrated that their fundamental premises were not to
be found in the Constitution." Post, at 787. But JUSTICE WHITE has
not disavowed the "fundamental premises" on which the decision
in Roe v. Wade rests. He has not disavowed the Court's prior approach to
the interpretation of the word "liberty" or, more narrowly, the
line of cases that culminated in the unequivocal holding, applied to unmarried
persons and married persons alike, "that the Constitution protects
individual decisions in matters of childbearing from unjustified intrusion
by the State." Carey, 431 U.S., at 687; id., at 702 (WHITE, J., Concurring
in pertinent part). *fn10
|||Nor does the fact that the doctrine of stare decisis is not an absolute
bar to the reexamination of past interpretations of the Constitution mean
that the values underlying that doctrine may be summarily put to one side.
There is a strong public interest in stability, and in the orderly conduct
of our affairs, that is served by a consistent course of constitutional
adjudication. Acceptance of the fundamental premises that underlie the decision
in Roe v. Wade, as well as the application of those premises in that case,
places the primary responsibility for decision in matters of childbearing
squarely in the private sector of our society. *fn11
The majority remains free to preach the evils of birth control and abortion
and to persuade others to make correct decisions while the individual faced
with the reality of a difficult choice having serious and personal consequences
of major importance to her own future -- perhaps to the salvation of her
own immortal soul -- remains free to seek and to obtain sympathetic guidance
from those who share her own value preferences.
|||In the final analysis, the holding in Roe v. Wade presumes that it is
far better to permit some individuals to make incorrect decisions than to
deny all individuals the right to make decisions that have a profound effect
upon their destiny. Arguably a very primitive society would have been protected
from evil by a rule against eating apples; a majority familiar with Adam's
experience might favor such a rule. But the lawmakers who placed a special
premium on the protection of individual liberty have recognized that certain
values are more important than the will of a transient majority. *fn12
|||CHIEF JUSTICE BURGER, Dissenting.
|||I agree with much of JUSTICE WHITE's and JUSTICE O'CONNOR's Dissents.
In my concurrence in the companion case to Roe v. Wade, 410 U.S. 113, in
1973, I noted:
|||"I do not read the Court's holdings today as having the sweeping
consequences attributed to them by the Dissenting Justices; the Dissenting
views discount the reality that the vast majority of physicians observe
the standards of their profession, and act only on the basis of carefully
deliberated medical judgments relating to life and health. Plainly, the
Court today rejects any claim that the Constitution requires abortions on
demand." Doe v. Bolton, 410 U.S. 179, 208 (1973).
|||Later, in Maher v. Roe, 432 U.S. 464, 481 (1977), I stated my view that
|||" Court's holdings in Roe. . . and Doe v. Bolton. . . simply require
that a State not create an absolute barrier to a woman's decision to have
|||I based my Concurring statements in Roe and Maher on the principle expressed
in the Court's opinion in Roe that the right to an abortion "is not
unqualified and must be considered against important state interests in
regulation." 410 U.S., at 154-155. In short, every Member of the Roe
Court rejected the idea of abortion on demand. The Court's opinion today,
however, plainly undermines that important principle, and I regretfully
conclude that some of the concerns of the Dissenting Justices in Roe, as
well as the concerns I expressed in my separate opinion, have now been realized.
|||The extent to which the Court has departed from the limitations expressed
in Roe is readily apparent. In Roe, the Court emphasized
|||"that the State does have an important and legitimate interest in
preserving and protecting the health of the pregnant woman . . . ."
Id., at 162.
|||Yet today the Court astonishingly goes so far as to say that the State
may not even require that a woman contemplating an abortion be provided
with accurate medical information concerning the risks inherent in the medical
procedure which she is about to undergo and the availability of state-funded
alternatives if she elects not to run those risks. Can anyone doubt that
the State could impose a similar requirement with respect to other medical
procedures? Can anyone doubt that doctors routinely give similar information
concerning risks in countless procedures having far less impact on life
and health, both physical and emotional than an abortion, and risk a malpractice
lawsuit if they fail to do so?
|||Yet the Court concludes that the State cannot impose this simple information-dispensing
requirement in the abortion context where the decision is fraught with serious
physical, psychological, and moral concerns of the highest order. Can it
possibly be that the Court is saying that the Constitution forbids the communication
of such critical information to a woman?* We have apparently already passed
the point at which abortion is available merely on demand. If the statute
at issue here is to be invalidated, the "demand" will not even
have to be the result of an informed choice.
|||The Court in Roe further recognized that the State "has still another
important and legitimate interest" which is "separate and distinct"
from the interest in protecting maternal health, i. e., an interest in "protecting
the potentiality of human life." Ibid. The point at which these interests
become "compelling" under Roe is at viability of the fetus. Id.,
at 163. Today, however, the Court abandons that standard and renders the
solemnly stated concerns of the 1973 Roe opinion for the interests of the
states mere shallow rhetoric. The statute at issue in this case requires
that a second physician be present during an abortion performed after viability,
so that the second physician can "take control of the child and . .
. provide immediate medical care . . . taking all reasonable steps necessary,
in his judgment, to preserve the child's life and health." 18 Pa. Cons.
Stat. § 3210(c) (1982).
|||Essentially this provision simply states that a viable fetus is to be
cared for, not destroyed. No governmental power exists to say that a viable
fetus should not have every protection required to preserve its life. Undoubtedly
the Pennsylvania Legislature added the second-physician requirement on the
mistaken assumption that this Court meant what it said in Roe concerning
the "compelling interest" of the states in potential life after
|||The Court's opinion today is but the most recent indication of the distance
traveled since Roe. Perhaps the first important road marker was the Court's
holding in Planned Parenthood of Central Missouri v. Danforth, 428 U.S.
52 (1976), in which the Court held (over the Dissent of JUSTICE WHITE joined
by JUSTICE REHNQUIST and myself) that the State may not require that minors
seeking an abortion first obtain parental consent. Parents, not Judges or
social workers, have the inherent right and responsibility to advise their
children in matters of this sensitivity and consequence. Can one imagine
a surgeon performing an amputation or even an appendectomy on a 14-year-old
girl without the consent of a parent or guardian except in an emergency
|||Yet today the Court goes beyond Danforth by remanding for further consideration
of the provisions of Pennsylvania's statute requiring that a minor seeking
an abortion without parental consent petition the appropriate court for
authorization. Even if I were to agree that the Constitution requires that
the states may not provide that a minor receive parental consent before
undergoing an abortion, I would certainly hold that judicial approval may
be required. This is in keeping with the longstanding common-law principle
that courts may function in loco parentis when parents are unavailable or
neglectful, even though courts are not very satisfactory substitutes when
the issue is whether a 12-, 14-, or 16-year-old unmarried girl should have
an abortion. In my view, no remand is necessary on this point because the
statutory provision in question is constitutional.
|||In discovering constitutional infirmities in state regulations of abortion
that are in accord with our history and tradition, we may have lured Judges
into "roaming at large in the constitutional field." Griswold
v. Connecticut, 381 U.S. 479, 502 (1965) (Harlan, J., Concurring). The soundness
of our holdings must be tested by the decisions that purport to follow them.
If Danforth and today's holding really mean what they seem to say, I agree
we should re-examine Roe.
|||JUSTICE WHITE, with whom JUSTICE REHNQUIST joins, Dissenting.
|||Today the Court carries forward the "difficult and continuing venture
in substantive due process," Planned Parenthood of Central Missouri
v. Danforth, 428 U.S. 52 (1976) (WHITE, J., Dissenting), that began with
the decision in Roe v. Wade, 410 U.S. 113 (1973), and has led the Court
further and further afield in the 13 years since that decision was handed
down. I was in Dissent in Roe v. Wade and am in Dissent today. In Part I
below, I state why I continue to believe that this venture has been fundamentally
misguided since its inception. In Part II, I submit that even accepting
Roe v. Wade, the concerns underlying that decision by no means command or
justify the results reached today. Indeed, in my view, our precedents in
this area, applied in a manner consistent with sound principles of constitutional
adjudication, require reversal of the Court of Appeals on the ground that
the provisions before us are facially constitutional. *fn1
|||The rule of stare decisis is essential if case-by-case judicial decisionmaking
is to be reconciled with the principle of the rule of law, for when governing
legal standards are open to revision in every case, deciding cases becomes
a mere exercise of judicial will, with arbitrary and unpredictable results.
But stare decisis is not the only constraint upon judicial decisionmaking.
Cases -- like this one -- that involve our assumed power to set aside on
grounds of unconstitutionality a state or federal statute representing the
democratically expressed will of the people call other considerations into
play. Because the Constitution itself is ordained and established by the
people of the United States, constitutional adjudication by this Court does
not, in theory at any rate, frustrate the authority of the people to govern
themselves through institutions of their own devising and in accordance
with principles of their own choosing. But decisions that find in the Constitution
principles or values that cannot fairly be read into that document usurp
the people's authority, for such decisions represent choices that the people
have never made and that they cannot disavow through corrective legislation.
For this reason, it is essential that this Court maintain the power to restore
authority to its proper possessors by correcting constitutional decisions
that, on reconsideration, are found to be mistaken.
|||The Court has therefore adhered to the rule that stare decisis is not
rigidly applied in cases involving constitutional issues, see Glidden Co.
v. Zdanok, 370 U.S. 530, 543 (1962) (opinion of Harlan, J.), and has not
hesitated to overrule decisions, or even whole lines of cases, where experience,
scholarship, and reflection demonstrated that their fundamental premises
were not to be found in the Constitution. Stare decisis did not stand in
the way of the Justices who, in the late 1930's, swept away constitutional
doctrines that had placed unwarranted restrictions on the power of the State
and Federal Governments to enact social and economic legislation, see United
States v. Darby, 312 U.S. 100 (1941); West Coast Hotel Co. v. Parrish, 300
U.S. 379 (1937). Nor did stare decisis deter a different set of Justices,
some 15 years later, from rejecting the theretofore prevailing view that
the Fourteenth Amendment permitted the States to maintain the system of
racial segregation. Brown v. Board of Education, 347 U.S. 483 (1954). In
both instances, history has been far kinder to those who departed from precedent
than to those who would have blindly followed the rule of stare decisis.
And only last Term, the author of today's majority opinion reminded us once
again that "when it has become apparent that a prior decision has departed
from a proper understanding" of the Constitution, that decision must
be overruled. Garcia v. San Antonio Metropolitan Transit Authority, 469
U.S. 528, 557 (1985).
|||In my view, the time has come to recognize that Roe v. Wade, no less than
the cases overruled by the Court in the decisions I have just cited, "departs
from a proper understanding" of the Constitution and to overrule it.
I do not claim that the arguments in support of this proposition are new
ones or that they were not considered by the Court in Roe or in the cases
that succeeded it. Cf. Akron v. Akron Center for Reproductive Health, Inc.,
462 U.S. 416, 419-420 (1983). But if an argument that a constitutional decision
is erroneous must be novel in order to justify overruling that precedent,
the Court's decisions in Lochner v. New York, 198 U.S. 45 (1905), and Plessy
v. Ferguson, 163 U.S. 537 (1896), would remain the law, for the doctrines
announced in those decisions were nowhere more eloquently or incisively
criticized than in the Dissenting opinions of Justices Holmes (in Lochner)
and Harlan (in both cases). That the flaws in an opinion were evident at
the time it was handed down is hardly a reason for adhering to it.
|||Roe v. Wade posits that a woman has a fundamental right to terminate her
pregnancy, and that this right may be restricted only in the service of
two compelling state interests: the interest in maternal health (which becomes
compelling only at the stage in pregnancy at which an abortion becomes more
hazardous than carrying the pregnancy to term) and the interest in protecting
the life of the fetus (which becomes compelling only at the point of viability).
A reader of the Constitution might be surprised to find that it encompassed
these detailed rules, for the text obviously contains no references to abortion,
nor, indeed, to pregnancy or reproduction generally; and, of course, it
is highly doubtful that the authors of any of the provisions of the Constitution
believed that they were giving protection to abortion. As its prior cases
clearly show, however, this Court does not subscribe to the simplistic view
that constitutional interpretation can possibly be limited to the "plain
meaning" of the Constitution's text or to the subjective intention
of the Framers. The Constitution is not a deed setting forth the precise
metes and bounds of its subject matter; rather, it is a document announcing
fundamental principles in value-laden terms that leave ample scope for the
exercise of normative judgment by those charged with interpreting and applying
it. In particular, the Due Process Clause of the Fourteenth Amendment, which
forbids the deprivation of "life, liberty, or property without due
process of law," has been read by the majority of the Court to be broad
enough to provide substantive protection against state infringement of a
broad range of individual interests. See Moore v. East Cleveland, 431 U.S.
494, 541-552 (1977) (WHITE, J., Dissenting).
|||In most instances, the substantive protection afforded the liberty or
property of an individual by the Fourteenth Amendment is extremely limited:
State action impinging on individual interests need only be rational to
survive scrutiny under the Due Process Clause, and the determination of
rationality is to be made with a heavy dose of deference to the policy choices
of the legislature. Only "fundamental" rights are entitled to
the added protection provided by strict judicial scrutiny of legislation
that impinges upon them. See id., at 499 (opinion of POWELL, J.); id., at
537 (Stewart, J., joined by REHNQUIST, J., Dissenting); id., at 547-549
(WHITE, J., Dissenting). I can certainly agree with the proposition -- which
I deem indisputable -- that a woman's ability to choose an abortion is a
species of "liberty" that is subject to the general protections
of the Due Process Clause. I cannot agree, however, that this liberty is
so "fundamental" that restrictions upon it call into play anything
more than the most minimal judicial scrutiny.
|||Fundamental liberties and interests are most clearly present when the
Constitution provides specific textual recognition of their existence and
importance. Thus, the Court is on relatively firm ground when it deems certain
of the liberties set forth in the Bill of Rights to be fundamental and therefore
finds them incorporated in the Fourteenth Amendment's guarantee that no
State may deprive any person of liberty without due process of law. When
the Court ventures further and defines as "fundamental" liberties
that are nowhere mentioned in the Constitution (or that are present only
in the so-called "penumbras" of specifically enumerated rights),
it must, of necessity, act with more caution, lest it open itself to the
accusation that, in the name of identifying constitutional principles to
which the people have consented in framing their Constitution, the Court
has done nothing more than impose its own controversial choices of value
upon the people.
|||Attempts to articulate the constraints that must operate upon the Court
when it employs the Due Process Clause to protect liberties not specifically
enumerated in the text of the Constitution have produced varying definitions
of "fundamental liberties." One approach has been to limit the
class of fundamental liberties to those interests that are "implicit
in the concept of ordered liberty" such that "neither liberty
nor Justice would exist if were sacrificed." Palko v. Connecticut,
302 U.S. 319, 325, 326 (1937); see Moore v. East Cleveland, 431 U.S., at
537 (Stewart, J., joined by REHNQUIST, J., Dissenting). Another, broader
approach is to define fundamental liberties as those that are "deeply
rooted in this Nation's history and tradition." Id., at 503 (opinion
of POWELL, J.); see also Griswold v. Connecticut, 381 U.S. 479, 501 (1965)
(Harlan, J., Concurring). These distillations of the possible approaches
to the identification of unenumerated fundamental rights are not and do
not purport to be precise legal tests or "mechanical ," Poe v.
Ullman, 367 U.S. 497, 544 (1961) (Harlan, J., Dissenting). Their utility
lies in their effort to identify some source of constitutional value that
reflects not the philosophical predilections of individual Judges, but basic
choices made by the people themselves in constituting their system of government
-- "the balance struck by this country," id., at 542 (emphasis
added) -- and they seek to achieve this end through locating fundamental
rights either in the traditions and consensus of our society as a whole
or in the logical implications of a system that recognizes both individual
liberty and democratic order. Whether either of these approaches can, as
Justice Harlan hoped, prevent "Judges from roaming at large in the
constitutional field," Griswold, supra, at 502, is debatable. What
for me is not subject to debate, however, is that either of the basic definitions
of fundamental liberties, taken seriously, indicates the illegitimacy of
the Court's decision in Roe v. Wade.
|||The Court has justified the recognition of a woman's fundamental right
to terminate her pregnancy by invoking decisions upholding claims of personal
autonomy in connection with the conduct of family life, the rearing of children,
marital privacy, the use of contraceptives, and the preservation of the
individual's capacity to procreate. See Carey v. Population Services International,
431 U.S. 678 (1977); Moore v. East Cleveland, supra; Eisenstadt v. Baird,
405 U.S. 438 (1972); Griswold v. Connecticut, supra; Skinner v. Oklahoma,
316 U.S. 535 (1942); Pierce v. Society of Sisters, 268 U.S. 510 (1925);
Meyer v. Nebraska, 262 U.S. 390 (1923). Even if each of these cases was
correctly decided and could be properly grounded in rights that are "implicit
in the concept of ordered liberty" or "deeply rooted in this Nation's
history and tradition," the issues in the cases cited differ from those
at stake where abortion is concerned. As the Court appropriately recognized
in Roe v. Wade, " pregnant woman cannot be isolated in her privacy,"
410 U.S., at 159; the termination of a pregnancy typically involves the
destruction of another entity: the fetus. However one answers the metaphysical
or theological question whether the fetus is a "human being" or
the legal question whether it is a "person" as that term is used
in the Constitution, one must at least recognize, first, that the fetus
is an entity that bears in its cells all the genetic information that characterizes
a member of the species homo sapiens and distinguishes an individual member
of that species from all others, and second, that there is no non-arbitrary
line separating a fetus from a child or, indeed, an adult human being. Given
that the continued existence and development -- that is to say, the life
-- of such an entity are so directly at stake in the woman's decision whether
or not to terminate her pregnancy, that decision must 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. *fn2
Accordingly, the decisions cited by the Court both in Roe and in its opinion
today as precedent for the fundamental nature of the liberty to choose abortion
do not, even if all are accepted as valid, dictate the Court's classification.
|||If the woman's liberty to choose an abortion is fundamental, then, it
is not because any of our precedents (aside from Roe itself) command or
justify that result; it can only be because protection for this unique choice
is itself "implicit in the concept of ordered liberty" or, perhaps,
"deeply rooted in this Nation's history and tradition." It seems
clear to me that it is neither. The Court's opinion in Roe itself convincingly
refutes the notion that the abortion liberty is deeply rooted in the history
or tradition of our people, as does the continuing and deep division of
the people themselves over the question of abortion. As for the notion that
choice in the matter of abortion is implicit in the concept of ordered liberty,
it seems apparent to me that a free, egalitarian, and democratic society
does not presuppose any particular rule or set of rules with respect to
abortion. And again, the fact that many men and women of good will and high
commitment to constitutional government place themselves on both sides of
the abortion controversy strengthens my own conviction that the values animating
the Constitution do not compel recognition of the abortion liberty as fundamental.
In so denominating that liberty, the Court engages not in constitutional
interpretation, but in the unrestrained imposition of its own, extraconstitutional
value preferences. *fn3
|||A second, equally basic error infects the Court's decision in Roe v. Wade.
The detailed set of rules governing state restrictions on abortion that
the Court first articulated in Roe and has since refined and elaborated
presupposes not only that the woman's liberty to choose an abortion is fundamental,
but also that the State's countervailing interest in protecting fetal life
(or, as the Court would have it, "potential human life," 410 U.S.,
at 159) becomes "compelling" only at the point at which the fetus
is viable. As JUSTICE O'CONNOR pointed out three years ago in her Dissent
in Akron v. Akron Center for Reproductive Health, Inc., 462 U.S., at 461,
the Court's choice of viability as the point at which the State's interest
becomes compelling is entirely arbitrary. The Court's "explanation"
for the line it has drawn is that the State's interest becomes compelling
at viability "because the fetus then presumably has the capacity of
meaningful life outside the mother's womb." 410 U.S., at 163. As one
critic of Roe has observed, this argument "mistakes a definition for
a syllogism." Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade,
82 Yale L. J. 920, 924 (1973).
|||The governmental interest at issue is in protecting those who will be
citizens if their lives are not ended in the womb. The substantiality of
this interest is in no way dependent on the probability that the fetus may
be capable of surviving outside the womb at any given point in its development,
as the possibility of fetal survival is contingent on the state of medical
practice and technology, factors that are in essence morally and constitutionally
irrelevant. The State's interest is in the fetus as an entity in itself,
and the character of this entity does not change at the point of viability
under conventional medical wisdom. Accordingly, the State's interest, if
compelling after viability, is equally compelling before viability. *fn4
|||Both the characterization of the abortion liberty as fundamental and the
denigration of the State's interest in preserving the lives of nonviable
fetuses are essential to the detailed set of constitutional rules devised
by the Court to limit the States' power to regulate abortion. If either
or both of these facets of Roe v. Wade were rejected, a broad range of limitations
on abortion (including outright prohibition) that are now unavailable to
the States would again become constitutional possibilities.
|||In my view, such a state of affairs would be highly desirable from the
standpoint of the Constitution. Abortion is a hotly contested moral and
political issue. Such issues, in our society, are to be resolved by the
will of the people, either as expressed through legislation or through the
general principles they have already incorporated into the Constitution
they have adopted. *fn5 Roe v.
Wade implies that the people have already resolved the debate by weaving
into the Constitution the values and principles that answer the issue. As
I have argued, I believe it is clear that the people have never -- not in
1787, 1791, 1868, or at any time since -- done any such thing. I would return
the issue to the people by overruling Roe v. Wade.
|||As it has evolved in the decisions of this Court, the freedom recognized
by the Court in Roe v. Wade and its progeny is essentially a negative one,
based not on the notion that abortion is a good in itself, but only on the
view that the legitimate goals that may be served by state coercion of private
choices regarding abortion are, at least under some circumstances, outweighed
by the damage to individual autonomy and privacy that such coercion entails.
In other words, the evil of abortion does not justify the evil of forbidding
it. Cf. Stanley v. Georgia, 394 U.S. 557 (1969). But precisely because Roe
v. Wade is not premised on the notion that abortion is itself desirable
(either as a matter of constitutional entitlement or of social policy),
the decision does not command the States to fund or encourage abortion,
or even to approve of it. Rather, we have recognized that the States may
legitimately adopt a policy of encouraging normal childbirth rather than
abortion so long as the measures through which that policy is implemented
do not amount to direct compulsion of the woman's choice regarding abortion.
Harris v. McRae, 448 U.S. 297 (1980); Maher v. Roe, 432 U.S. 464 (1977);
Beal v. Doe, 432 U.S. 438 (1977). The provisions before the Court today
quite obviously represent the State's effort to implement such a policy.
|||The majority's opinion evinces no deference toward the State's legitimate
policy. Rather, the majority makes it clear from the outset that it simply
disapproves of any attempt by Pennsylvania to legislate in this area. The
history of the state legislature's decade-long effort to pass a constitutional
abortion statute is recounted as if it were evidence of some sinister conspiracy.
See ante, at 751-752. In fact, of course, the legislature's past failure
to predict the evolution of the right first recognized in Roe v. Wade is
understandable and is in itself no ground for condemnation. Moreover, the
legislature's willingness to pursue permissible policies through means that
go to the limits allowed by existing precedents is no sign of mens rea.
The majority, however, seems to find it necessary to respond by changing
the rules to invalidate what before would have seemed permissible. The result
is a decision that finds no justification in the Court's previous holdings,
departs from sound principles of constitutional and statutory interpretation,
and unduly limits the State's power to implement the legitimate (and in
some circumstances compelling) policy of encouraging normal childbirth in
preference to abortion.
|||The Court begins by striking down statutory provisions designed to ensure
that the woman's choice of an abortion is fully informed -- that is, that
she 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. At first blush, the Court's action seems extraordinary:
after all, Roe v. Wade purports to be about freedom of choice, and statutory
provisions requiring that a woman seeking an abortion be afforded information
regarding her decision not only do not limit her ability to choose abortion,
but also would appear to enhance her freedom of choice by helping to ensure
that her decision whether or not to terminate her pregnancy is an informed
one. Indeed, maximization of the patient's freedom of choice -- not restriction
of his or her liberty -- is generally perceived to be the principal value
justifying the imposition of disclosure requirements upon physicians:
|||"The root premise is the concept, fundamental in American jurisprudence,
that ' human being of adult years and sound mind has a right to determine
what shall be done with his own body. . . .' True consent to what happens
to one's self is the informed exercise of a choice, and that entails an
opportunity to evaluate knowledgeably the options available and the risks
attendant upon each. The average patient has little or no understanding
of the medical arts, and ordinarily has only his physician to whom he can
look for enlightenment with which to reach an intelligent decision. From
these almost axiomatic considerations springs the need, and in turn the
requirement, of a reasonable divulgence by physician to patient to make
such a decision possible." Canterbury v. Spence, 150 U. S. App. D.C.
263, 271, 464 F.2d 772, 780 (1972).
|||One searches the majority's opinion in vain for a convincing reason why
the apparently laudable policy of promoting informed consent becomes unconstitutional
when the subject is abortion. The majority purports to find support in Akron
v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983). But
Akron is not controlling. The informed-consent provisions struck down in
that case, as characterized by the majority, required the physician to advance
tendentious statements concerning the unanswerable question of when human
life begins, to offer merely speculative descriptions of the anatomical
features of the fetus carried by the woman seeking the abortion, and to
recite a "parade of horribles" suggesting that abortion is "a
particularly dangerous procedure." Id., at 444-445. I have no quarrel
with the general proposition, for which I read Akron to stand, that a campaign
of state-promulgated disinformation cannot be justified in the name of "informed
consent" or "freedom of choice." But the Pennsylvania statute
before us cannot be accused of sharing the flaws of the ordinance at issue
in Akron. As the majority concedes, the statute does not, on its face, require
that the patient be given any information that is false or unverifiable.
Moreover, it is unquestionable that all of the information required would
be relevant in many cases to a woman's decision whether or not to obtain
|||Why, then, is the statute unconstitutional? The majority's argument, while
primarily rhetorical, appears to offer three answers. First, the information
that must be provided will in some cases be irrelevant to the woman's decision.
This is true. Its pertinence to the question of the statute's constitutionality,
however, is beyond me. Legislators are ordinarily entitled to proceed on
the basis of rational generalizations about the subject matter of legislation,
and 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. Only where the
statute is subject to heightened scrutiny by virtue of its impingement on
some fundamental right or its employment of a suspect classification does
the imprecision of the "fit" between the statute's ends and means
become potentially damning. Here, there is nothing to trigger such scrutiny,
for the statute does not directly infringe the allegedly fundamental right
at issue -- the woman's right to choose an abortion. Indeed, I fail to see
how providing a woman with accurate information -- whether relevant or irrelevant
-- could ever be deemed to impair any constitutionally protected interest
(even if, as the majority hypothesizes, the information may upset her).
Thus, the majority's observation that the statute may require the provision
of irrelevant information in some cases is itself an irrelevancy.
|||Second, the majority appears to reason that the informed-consent provisions
are invalid because the information they require may increase the woman's
"anxiety" about the procedure and even "influence" her
in her choice. Again, both observations are undoubtedly true; but they by
no means cast the constitutionality of the provisions into question. It
is in the very nature of informed-consent provisions that they may produce
some anxiety in the patient and influence her in her choice. This is in
fact their reason for existence, and -- provided that the information required
is accurate and non-misleading -- it is an entirely salutary reason. If
information may reasonably affect the patient's choice, the patient should
have that information; and, as one authority has observed, "the greater
the likelihood that particular information will influence [the patient's]
decision, the more essential the information arguably becomes for securing
her informed consent." Appleton, Doctors, Patients and the Constitution,
63 Wash. U. L. Q. 183, 211 (1985). That the result of the provision of information
may be that some women will forgo abortions by no means suggests that providing
the information is unconstitutional, for the ostensible objective of Roe
v. Wade is not maximizing the number of abortions, but maximizing choice.
Moreover, our decisions in Maher, Beal, and Harris v. McRae all indicate
that the State may encourage women to make their choice in favor of childbirth
rather than abortion, and the provision of accurate information regarding
abortion and its alternatives is a reasonable and fair means of achieving
|||Third, the majority concludes that the informed-consent provisions are
invalid because they " upon the discretion of the pregnant woman's
physician," ante, at 762, violate "the privacy of the informed-consent
dialogue between the woman and her physician," ibid., and "officially]structure]"
that dialogue, ante, at 763. The provisions thus constitute "state
medicine" that "infringes upon [the physician's] professional
responsibilities." Ibid. This is nonsensical. I can concede that the
Constitution extends its protection to certain zones of personal autonomy
and privacy, see Griswold v. Connecticut, 381 U.S., at 502 (WHITE, J., Concurring
in judgment), and I can understand, if not share, the notion that that protection
may extend to a woman's decision regarding abortion. But I cannot concede
the possibility that the Constitution provides more than minimal protection
for the manner in which a physician practices his or her profession or for
the "dialogues" in which he or she chooses to participate in the
course of treating patients. I had thought it clear that regulation of the
practice of medicine, like regulation of other professions and of economic
affairs generally, was a matter peculiarly within the competence of legislatures,
and that such regulation was subject to review only for rationality. See,
e. g., Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483 (1955).
|||Were the Court serious about the need for strict scrutiny of regulations
that infringe on the "judgment" of medical professionals, "structure"
their relations with their patients, and amount to "state medicine,"
there is no telling how many state and federal statutes (not to mention
principles of state tort law) governing the practice of medicine might be
condemned. And of course, there would be no reason why a concern for professional
freedom could be confined to the medical profession: nothing in the Constitution
indicates a preference for the liberty of doctors over that of lawyers,
accountants, bankers, or brickmakers. Accordingly, if the State may not
"structure" the dialogue between doctor and patient, it should
also follow that the State may not, for example, require attorneys to disclose
to their clients information concerning the risks of representing the client
in a particular proceeding. Of course, we upheld such disclosure requirements
only last Term. See Zauderer v. Office of Disciplinary Counsel, 471 U.S.
|||The rationale for state efforts to regulate the practice of a profession
or vocation is simple: the government is entitled not to trust members of
a profession to police themselves, and accordingly the legislature may for
the most part impose such restrictions on the practice of a profession or
business as it may find necessary to the protection of the public. This
is precisely the rationale for infringing the professional freedom of doctors
by imposing disclosure requirements upon them: "Respect for the patient's
right of self-determination on particular therapy demands a standard set
by law for physicians rather than one which physicians may or may not impose
upon themselves." Canterbury v. Spence, 150 U. S. App. D.C., at 275,
464 F.2d, at 784. Unless one is willing to recast entirely the law with
respect to the legitimacy of state regulation of professional conduct, the
obvious rationality of the policy of promoting informed patient choice on
the subject of abortion must defeat any claim that the disclosure requirements
imposed by Pennsylvania are invalid because they infringe on "professional
freedom" or on the "physician-patient relationship."
|||I do not really believe that the Court's invocation of professional freedom
signals a retreat from the principle that the Constitution is largely unconcerned
with the substantive aspects of governmental regulation of professional
and business relations. Clearly, the majority is uninterested in undermining
the edifice of post-New Deal constitutional law by extending its holding
to cases that do not concern the issue of abortion. But if one assumes,
as I do, that the majority is unwilling to commit itself to the implications
of that part of its rhetoric which smacks of economic due process rights
for physicians, it becomes obvious that the talk of "infringement of
professional responsibility" is mere window dressing for a holding
that must stand or fall on other grounds. And because the informed-consent
provisions do not infringe the essential right at issue -- the right of
the woman to choose to have an abortion -- the majority's Conclusion that
the provisions are unconstitutional is without foundation.
|||The majority's decision to strike down the reporting requirements of the
statute is equally extraordinary. The requirements obviously serve legitimate
purposes. The information contained in the reports is highly relevant to
the State's efforts to enforce § 3210(a) of the statute, which forbids abortion
of viable fetuses except when necessary to the mother's health. The information
concerning complications plainly serves the legitimate goal of advancing
the state of medical knowledge concerning maternal and fetal health. See
Planned Parenthood of Central Missouri v. Danforth, 428 U.S., at 80. Given
that the subject of abortion is a matter of considerable public interest
and debate (constrained to some extent, of course, by the pre-emptive effect
of this Court's ill-conceived constitutional decisions), the collection
and dissemination of demographic information concerning abortions is clearly
a legitimate goal of public policy. Moreover, there is little reason to
believe that the required reports, though fairly detailed, would impose
an undue burden on physicians and impede the ability of their patients to
obtain abortions, as all of the information required would necessarily be
readily available to a physician who had performed an abortion. Accordingly,
under this Court's prior decisions in this area, the reporting requirements
are constitutional. Planned Parenthood Assn. of Kansas City, Missouri, Inc.
v. Ashcroft, 462 U.S. 476, 486-490 (1983) (opinion of POWELL, J.); id.,
at 505 (opinion of O'CONNOR, J.); Planned Parenthood of Central Missouri
v. Danforth, supra, at 79-81.
|||Nonetheless, the majority strikes down the reporting requirements because
it finds that notwithstanding the explicit statutory command that the reports
be made public only in a manner ensuring anonymity, "the amount of
information about [the patient] and the circumstances under which she had
an abortion are so detailed that identification is likely," ante, at
767, and that " is the obvious purpose of these extreme reporting requirements,"
ibid. Where these "findings" come from is mysterious, to say the
least. The Court of Appeals did not make any such findings on the record
before it, and the District Court expressly found that "the requirements
of confidentiality in § 3214(e) regarding the identity of both patient and
physician prevent any invasion of privacy which could present a legally
significant burden on the abortion decision." 552 F.Supp. 791, 804
(ED Pa. 1982). Rather than pointing to anything in the record that demonstrates
that the District Court's Conclusion is erroneous, the majority resorts
to the handy, but mistaken, solution of substituting its own view of the
facts and strikes down the statute.
|||I can accept the proposition that a statute whose purpose and effect are
to allow harrassment and intimidation of citizens for their constitutionally
protected conduct is unconstitutional, but the majority's action in striking
down the Pennsylvania statute on this basis is procedurally and substantively
indefensible. First, it reflects a complete disregard for the principle,
embodied in Federal Rule of Civil Procedure 52(a), that an appellate court
must defer to a trial court's findings of facts unless those findings are
clearly erroneous. The Rule is expressly applicable to findings of fact
that constitute the grounds for a district court's action granting or refusing
a preliminary injunction, and, of course, the Rule limits this Court to
the same degree as it does any other federal appellate court, see United
States v. General Dynamics Corp., 415 U.S. 486 (1974).
|||Second, the majority has seriously erred in purporting to make a final
determination of fact, conclusive of the constitutionality of the statute,
on a motion for preliminary injunction. In so doing, the Court overlooks
the principle that although a district court's findings of fact on a motion
for a preliminary injunction are entitled to deference on appeal from the
grant or denial of preliminary relief, "the findings of fact . . .
made by a court granting a preliminary injunction are not binding at trial
on the merits" because "a preliminary injunction is customarily
granted on the basis of procedures that are less formal and evidence that
is less complete than in a trial on the merits." University of Texas
v. Camenisch, 451 U.S. 390, 395 (1981) (emphasis added). What Camenisch
stated to be true customarily is also true in this case: the record on which
the motion for preliminary injunction was decided in the trial court consisted
solely of affidavits and a stipulation of undisputed facts, none of which
provides a sufficient basis for a conclusive finding on the complex question
of the motive and effect of the reporting requirements and the adequacy
of the statute's protection of the anonymity of doctors and patients. Issuing
what amounts to a final declaratory judgment on the constitutionality of
the statute under these circumstances is highly inappropriate.
|||Finally, in addition to being procedurally flawed, the majority's holding
is substantively suspect. The information contained in the reports identifies
the patient on the basis of age, race, marital status, and "political
subdivision" of residence; the remainder of the information included
in the reports concerns the medical aspects of the abortion. It is implausible
that a particular patient could be identified on the basis of the combination
of the general identifying information and the specific medical information
in these reports by anyone who did not already know (at a minimum) that
the woman had been pregnant and obtained an abortion. Accordingly, the provisions
pose little or no threat to the woman's privacy.
|||In sum, there is no basis here even for a preliminary injunction against
the reporting provisions of the statute, much less for a final determination
that the provisions are unconstitutional.
|||The majority resorts to linguistic nit-picking in striking down the provision
requiring physicians aborting viable fetuses to use the method of abortion
most likely to result in fetal survival unless that method would pose a
"significantly greater medical risk to the life or health of the pregnant
woman" than would other available methods. The majority concludes that
the statute's use of the word "significantly" indicates that the
statute represents an unlawful "trade-off" between the woman's
health and the chance of fetal survival. Not only is this Conclusion based
on a wholly unreasonable interpretation of the statute, but the statute
would also be constitutional even if it meant what the majority says it
|||The majority adopts the Court of Appeals' view that the statute's use
of the term "significantly" renders it "'not susceptible
to a construction that does not require the mother to bear an increased
medical risk in order to save her viable fetus.'" Ante, at 769 (quoting
737 F.2d 283, 300 (CA3 1984)). The term "significant" in this
context, however, is most naturally read as synonymous with the terms "meaningful,"
"cognizable," "appreciable," or "nonnegligible."
That is, the statute requires only that the risk be a real and identifiable
one. Surely, if the State's interest in preserving the life of a viable
fetus is, as Roe purported to recognize, a compelling one, the State is
at the very least entitled to demand that that interest not be subordinated
to a purported maternal health risk that is in fact wholly insubstantial.
The statute, on its face, demands no more than this of a doctor performing
an abortion of a viable fetus.
|||Even if the Pennsylvania statute is properly interpreted as requiring
a pregnant woman seeking abortion of a viable fetus to endure a method of
abortion chosen to protect the health of the fetus despite the existence
of an alternative that in some substantial degree is more protective of
her own health, I am not convinced that the statute is unconstitutional.
The Court seems to read its earlier opinion in Colautti v. Franklin, 439
U.S. 379 (1979), as incorporating a holding that trade-offs between the
health of the pregnant woman and the survival of her viable fetus are constitutionally
impermissible under Roe v. Wade. Of course, Colautti held no such thing:
the Court there stated only that it did not address the "serious ethical
and constitutional difficulties" that such a trade-off would present.
439 U.S., at 400. *fn6 Nothing
in Colautti or any of the Court's previous abortion decisions compels the
per se "trade-off" rule the Court adopts today.
|||The Court's ruling in this respect is not even consistent with its decision
in Roe v. Wade. In Roe, the Court conceded that the State's interest in
preserving the life of a viable fetus is a compelling one, and the Court
has never disavowed that concession. The Court now holds that this compelling
interest cannot justify any regulation that imposes a quantifiable medical
risk upon the pregnant woman who seeks to abort a viable fetus: if attempting
to save the fetus imposes any additional risk of injury to the woman, she
must be permitted to kill it. This holding hardly accords with the usual
understanding of the term "compelling interest," which we have
used to describe those governmental interests that are so weighty as to
justify substantial and ordinarily impermissible impositions on the individual
-- impositions that, I had thought, could include the infliction of some
degree of risk of physical harm. The most obvious illustration of this principle
may be found in the opinion of the elder Justice Harlan in Jacobson v. Massachusetts,
197 U.S. 11, 29 (1905): "The liberty secured by the Fourteenth Amendment
. . . consists, in part, in the right of a person 'to live and work where
he will,' Allgeyer v. Louisiana, 165 U.S. 578; and yet he may be compelled,
by force if need be, against his will and without regard to his personal
wishes or his pecuniary interests, . . . to take his place in the ranks
of the army of his country and risk the chance of being shot down in its
defense." The actual holding of Jacobson provides another illustration,
more pertinent to this particular case: the Court there sustained a regulation
requiring all adult citizens of Cambridge, Massachusetts, to be vaccinated
against smallpox, notwithstanding that exposure to vaccination carried with
it a statistical possibility of serious illness and even death. If, as I
believe these examples demonstrate, a compelling state interest may justify
the imposition of some physical danger upon an individual, and if, as the
Court has held, the State has a compelling interest in the preservation
of the life of a viable fetus, I find the majority's unwillingness to tolerate
the imposition of any nonnegligible risk of injury to a pregnant woman in
order to protect the life of her viable fetus in the course of an abortion
|||The Court's ruling today that any tradeoff between the woman's health
and fetal survival is impermissible is not only inconsistent with Roe's
recognition of a compelling state interest in viable fetal life; it directly
contradicts one of the essential holdings of Roe -- that is, that the State
may forbid all postviability abortions except when necessary to protect
the life or health of the pregnant woman. As is evident, this holding itself
involves a trade-off between maternal health and protection of the fetus,
for it plainly permits the State to forbid a postviability abortion even
when such an abortion may be statistically safer than carrying the pregnancy
to term, provided that the abortion is not medically necessary. *fn7
The tradeoff contained in the Pennsylvania statute, even as interpreted
by the majority, is no different in kind: the State has simply required
that when an abortion of some kind is medically necessary, it shall be conducted
so as to spare the fetus (to the greatest degree possible) unless a method
less protective of the fetus is itself to some degree medically necessary
for the woman. That this choice may involve the imposition of some risk
on the woman undergoing the abortion should be no more troublesome than
that a prohibition on nonnecessary postviability abortions may involve the
imposition of some risk on women who are thereby forced to continue their
pregnancies to term; yet for some reason, the Court concludes that whereas
the tradeoffs it devises are compelled by the Constitution, the essentially
indistinguishable tradeoff the State has attempted is foreclosed. This cannot
be the law.
|||The framework of rights and interests devised by the Court in Roe v. Wade
indicates that just as a State may prohibit a postviability abortion unless
it is necessary to protect the life or health of the woman, the State may
require that postviability abortions be conducted using the method most
protective of the fetus unless a less protective method is necessary to
protect the life or health of the woman. Under this standard, the Pennsylvania
statute -- which does not require the woman to accept any significant health
risks to protect the fetus -- is plainly constitutional.
|||The Court strikes down the statute's second-physician requirement because,
in its view, the existence of a medical emergency requiring an immediate
abortion to save the life of the pregnant woman would not be a defense to
a prosecution under the statute. The Court does not question the proposition,
established in the Ashcroft case, that a second-physician requirement accompanied
by an exception for emergencies is a permissible means of vindicating the
compelling state interest in protecting the lives of viable fetuses. Accordingly,
the majority's ruling on this issue does not on its face involve a substantial
departure from the Court's previous decisions.
|||What is disturbing about the Court's opinion on this point is not the
general principle on which it rests, but the manner in which that principle
is applied. The Court brushes aside the fact that the section of the statute
in which the second-physician requirement is imposed states that "
shall be a complete defense to any charge brought against a physician for
violating the requirements of this section that he had concluded, in good
faith, in his best medical judgment, . . . that the abortion was necessary
to preserve maternal life or health" (emphasis added). 18 Pa. Cons.
Stat. § 3210(a) (1982). This language is obviously susceptible of the construction
the State advances: namely, that it is a defense to a charge of violating
the second-physician requirement that the physician performing the abortion
believed that performing an abortion in the absence of a second physician
was necessary to the life or health of the mother.
|||The Court's rejection of this construction is based on its Conclusion
that the statutory language "does not relate to the second-physician
requirement" and that "its words are not words of emergency."
Ante, at 771. This reasoning eludes me. The defense of medical necessity
"relates" to any charge that a doctor has violated one of the
requirements of the section in which it appears, and the second-physician
requirement is imposed by that section. The defense thus quite evidently
"relates" to the second-physician requirement. True, the "words"
of the defense are not "words of emergency," but words of necessity.
Why this should make a difference is unclear: a defense of medical necessity
is fully as protective of the interests of the pregnant woman as a defense
of "emergency." The Court falls back, ibid., on the notion that
the legislature "knows how to provide a medical-emergency exception
when it chooses to do so." No doubt. But the legislature obviously
also "knows how" to provide a medical-necessity exception, and
it has done so. Why this exception is insufficient is unexplained and inexplicable.
|||The Court's rejection of a perfectly plausible reading of the statute
flies in the face of the principle -- which until today I had thought applicable
to abortion statutes as well as to other legislative enactments -- that
" fairly possible, courts should construe a statute to avoid a danger
of unconstitutionality." Planned Parenthood Assn. of Kansas City, Missouri,
Inc. v. Ashcroft, 462 U.S., at 493. The Court's reading is obviously based
on an entirely different principle: that in cases involving abortion, a
permissible reading of a statute is to be avoided at all costs. Not sharing
this viewpoint, I cannot accept the majority's Conclusion that the statute
does not provide for the equivalent of a defense of emergency. *fn8
|||Finally, the majority refuses to vacate the preliminary injunction entered
against the enforcement of the parental notice and consent provisions of
the statute. See ante, at 758, n. 9. The reason offered is that the propriety
of the injunction depends upon the adequacy of the rules, recently promulgated
by the Pennsylvania Supreme Court, setting forth procedures by which a minor
desiring an abortion may speedily and confidentially obtain either judicial
approval of her decision to obtain an abortion or a judicial determination
that she herself is capable of an informed consent to the procedure. The
Court concludes that review of the rules is best carried out in the first
instance in the District Court.
|||The Court's decision in Ashcroft, however, compels the Conclusion that
the Third Circuit erred in directing that the operation of the parental
notice and consent provisions be enjoined pending promulgation of the required
rules; accordingly, the injunction should be vacated irrespective of the
adequacy of those rules. As the Court of Appeals apparently recognized,
the Pennsylvania statute, on its face, is substantively identical to that
upheld by the Court in Ashcroft ; thus, the sole basis for the injunction
ordered by the Court of Appeals was the absence of procedural rules implementing
the statute. What the Court of Appeals failed to recognize was that this
Court denied relief to the plaintiffs challenging the statute in Ashcroft
despite the same purported defect: in that case, as in this, the State Supreme
Court had not yet promulgated rules establishing the expedited procedures
called for by the statute. Nonetheless, as JUSTICE POWELL's opinion explained,
the plaintiffs were not entitled to any relief against enforcement of the
statutory scheme, as " is no reason to believe that [the State] will
not expedite any appeal consistent with the mandate in our prior opinions."
462 U.S., at 491, n. 16. Similarly, there was no reason here for the Court
of Appeals to believe that Pennsylvania would not provide for the adequate,
expedited procedures contemplated by the statute; thus, its entry of an
injunction against enforcement of the statute was erroneous.
|||The decision today appears symptomatic of the Court's own insecurity over
its handiwork in Roe v. Wade and the cases following that decision. Aware
that in Roe it essentially created something out of nothing and that there
are many in this country who hold that decision to be basically illegitimate,
the Court responds defensively. Perceiving, in a statute implementing the
State's legitimate policy of preferring childbirth to abortion, a threat
to or criticism of the decision in Roe v. Wade, the majority indiscriminately
strikes down statutory provisions that in no way contravene the right recognized
in Roe. I do not share the warped point of view of the majority, nor can
I follow the tortuous path the majority treads in proceeding to strike down
the statute before us. I Dissent.
|||Justice O'CONNOR, with whom JUSTICE REHNQUIST joins, Dissenting.
|||This Court's abortion decisions have already worked a major distortion
in the Court's constitutional jurisprudence. See Akron v. Akron Center for
Reproductive Health, Inc., 462 U.S. 416, 452 (1983) (O'CONNOR, J., Dissenting).
Today's decision goes further, and makes it painfully clear that no legal
rule or doctrine is safe from ad hoc nullification by this Court when an
occasion for its application arises in a case involving state regulation
of abortion. The permissible scope of abortion regulation is not the only
constitutional issue on which this Court is divided, but -- except when
it comes to abortion -- the Court has generally refused to let such disagreements,
however longstanding or deeply felt, prevent it from evenhandedly applying
uncontroversial legal doctrines to cases that come before it. See Heckler
v. Chaney, 470 U.S. 821, 838 (1985); id., at 839-840, n. 2 (BRENNAN, J.,
Concurring) (differences over the validity of the death penalty under the
Eighth Amendment should not influence the Court's consideration of a question
of statutory administrative law). That the Court's unworkable scheme for
constitutionalizing the regulation of abortion has had this institutionally
debilitating effect should not be surprising, however, since the Court is
not suited to the expansive role it has claimed for itself in the series
of cases that began with Roe v. Wade, 410 U.S. 113 (1973).
|||The Court today holds that " Court of Appeals correctly invalidated
the specified provisions of Pennsylvania's 1982 Abortion Control Act."
Ante, at 772. In so doing, the Court prematurely decides serious constitutional
questions on an inadequate record, in contravention of settled principles
of constitutional adjudication and procedural fairness. The constitutionality
of the challenged provisions was not properly before the Court of Appeals,
and is not properly before this Court. There has been no trial on the merits,
and appellants have had no opportunity to develop facts that might have
a bearing on the constitutionality of the statute. The only question properly
before the Court is whether or not a preliminary injunction should have
been issued to restrain enforcement of the challenged provisions pending
trial on the merits. This Court's decisions in Akron v. Akron Center for
Reproductive Health, supra, Planned Parenthood Assn. of Kansas City, Missouri,
Inc. v. Ashcroft, 462 U.S. 476 (1983), and Simopoulos v. Virginia, 462 U.S.
506 (1983), do not establish a likelihood that appellees would succeed on
the merits of their constitutional claims sufficient to warrant overturning
the District Court's denial of a preliminary injunction. Under the approach
to abortion regulation outlined in my Dissenting opinion in Akron, to which
I adhere, it is even clearer that no preliminary injunction should have
issued. I therefore Dissent.
|||The only issue before the District Court in this case was whether to grant
appellees' motion for a preliminary injunction against enforcement of Pennsylvania's
Abortion Control Act. The limited record before the District Court consisted
of affidavits submitted by appellees, the parties' memoranda of law, the
Act itself, including the findings of the Pennsylvania Legislature, and
a stipulation of uncontested facts. As the District Judge noted, this stipulation
"was entered into solely for the purpose of the motion for preliminary
injunction." 552 F.Supp. 791, 794, n. 1 (ED Pa. 1982). Indeed, the
parties expressly provided that the stipulation should be "without
prejudice" to any party's right to controvert any facts or to prove
any additional facts at any later proceeding in this action." App.
9a-10a. In light of the stipulation of uncontested facts, no testimony or
evidence was submitted at the hearing on the motion for a preliminary injunction.
|||In these circumstances, the District Judge's consideration of the motion
before him was governed by the black letter law recapitulated in University
of Texas v. Camenisch, 451 U.S. 390, 395 (1981):
|||"The purpose of a preliminary injunction is merely to preserve the
relative positions of the parties until a trial on the merits can be held.
Given this limited purpose, and given the haste that is often necessary
if those positions are to be preserved, a preliminary injunction is customarily
granted on the basis of procedures that are less formal and evidence that
is less complete than in a trial on the merits. A party thus is not required
to prove his case in full at a preliminary injunction hearing, and the findings
of fact and Conclusions of law made by a court granting a preliminary injunction
are not binding at trial on the merits. In light of these considerations,
it is generally inappropriate for a federal court at the preliminary-injunction
stage to give a final judgment on the merits.
|||"Should an expedited decision on the merits be appropriate, Rule
65(a)(2) of the Federal Rules of Civil Procedure provides a means of securing
one. That Rule permits a court to 'order the trial of the action on the
merits to be advanced and consolidated with the hearing of the application.'
Before such an order may issue, however, the courts have commonly required
that 'the parties should normally receive clear and unambiguous notice [of
the court's intent to consolidate the trial and the hearing] either before
the hearing commences or at a time which will still afford the parties a
full opportunity to present their respective cases'" (citations omitted).
|||The District Judge scrupulously adhered to these settled principles. He
granted the preliminary injunction as to one provision of the Act, and denied
preliminary relief as to all the other challenged provisions. Having seen
no occasion to issue a Rule 65 order, he properly refrained from rendering
final judgment on the merits by declaratory judgment or otherwise. That
the District Judge understood the preliminary nature of the proceedings,
and ruled accordingly, is incontrovertible:
|||"I have applied the traditional criteria applicable to a motion for
preliminary injunction: likelihood of success on the merits, irreparable
harm if the relief is not granted, possibility of harm to the non-moving
party, and where relevant, harm to the public. Given the importance of the
right involved in this litigation, I have assumed that if the plaintiffs
were able to show likelihood of success on the merits, then the irreparable
harm requirement would be met. I conclude that in only one instance, the
24-hour waiting period, did the plaintiffs carry their burden of demonstrating
likelihood of success on the merits.
|||"My adjudication is limited to the plaintiffs' request for a preliminary
injunction. It is circumscribed by the record produced by the parties and
the arguments advanced in the briefs on this motion. After applying the
criteria for a preliminary injunction, I conclude that the only portion
of the Act which the plaintiffs have demonstrated should be preliminarily
enjoined is the 24-hour waiting period. In all other respects, the plaintiffs
have failed to show a right to a preliminary injunction pending the outcome
of the trial on the merits." 552 F.Supp., at 811 (emphasis in original).
|||The District Judge correctly discerned that " traditional standard
for granting a preliminary injunction requires a plaintiff to show that
in the absence of its issuance he will suffer irreparable injury and also
that he is likely to prevail on the merits." Doran v. Salem Inn, Inc.,
422 U.S. 922, 931 (1975). Unsurprisingly, the likelihood of success on the
merits emerged, in the District Judge's view, as the most important factor
in determining whether an injunction should issue in this case. In sum,
when the District Judge denied appellees' motion for a preliminary injunction,
he faithfully applied uncontroversial criteria for ruling on such motions
and rendered a decision that "was not in any sense intended as a final
decision as to the constitutionality of the challenged statute." Brown
v. Chote, 411 U.S. 452, 456 (1973).
|||When the appeal was taken to the Court of Appeals for the Third Circuit,
that court's review should have been limited to determining whether the
District Court had abused its discretion in denying preliminary relief.
Doran, supra, at 931-932; Brown, supra, at 457. If the Court of Appeals
concluded that the District Court had committed legal errors that infected
its assessment of the likelihood that appellees would succeed on the merits,
the Court of Appeals should then have addressed the remaining factors that
make up the preliminary injunction inquiry. If it concluded that denial
of the preliminary injunction was an abuse of discretion, it should have
entered judgment providing for entry of a preliminary injunction. What it
should not have done, and what it did do, was to issue a final, binding
declaration on the merits of appellees' constitutional claims.
|||The Court concedes that a court of appeals should ordinarily review the
denial of a preliminary injunction under an abuse of discretion standard,
and it concedes that a court of appeals should ordinarily confine itself
to assessing the "probability that the plaintiffs would succeed on
the merits." Ante, at 755. But the Court purports to find an exception
to this rule in the decisions in Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952), and Smith v. Vulcan Iron Works, 165 U.S. 518 (1897).
It asserts that these cases indicate that "if a district court's ruling
rests solely on a premise as to the applicable rule of law, and the facts
are established or of no controlling relevance, that ruling may be reviewed
even though the appeal is from the entry of a preliminary injunction."
Ante, at 757. The Court then announces that the requirement that appellate
review proceed under the deferential abuse of discretion standard is "a
rule of orderly judicial administration, not a limit on judicial power."
Ibid. Postulating that the Court of Appeals had a "full record before
it on the issues now before us," ibid., the Court concludes that this
"full record," and the fact that this Court's decisions in Akron,
Ashcroft, and Simopoulos were handed down during the pendency of the appeal,
justified the Court of Appeals "in proceeding to plenary review of
those issues." Ante, at 757.
|||This analysis mischaracterizes the proceedings in the District Court and
is unsupported by precedent or logic. No one doubts that the legal premises
on which the District Judge proceeded were reviewable. But the fact is that
the District Judge did not make the final, definitive "ruling"
on the merits the Court imputes to him. The only "ruling" the
Court of Appeals had before it with respect to the merits was a determination
of "likelihood of success" based on facts which were stipulated
only for purposes of the preliminary injunction motion, and on arguments
framed with a view toward only those facts. Nor was there a "full record"
upon which the Court of Appeals could decide the merits. The Court falls
into precisely the error pointed out in Camenisch, 451 U.S., at 394, where
this Court unanimously rejected the proposition that determinations on the
propriety of preliminary relief are "tantamount to decisions on the
underlying merits," because that view "improperly equates 'likelihood
of success' with 'success,' and what is more important, . . . ignores the
significant procedural differences between preliminary and permanent injunctions."
|||The Court of Appeals was convinced that the District Judge, in reliance
on the decisions of the Courts of Appeals that were later reviewed in Akron
and Ashcroft, had taken a view of the applicable law which this Court's
decisions in those cases demonstrated to be erroneous. Citing Apple Computer,
Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1242 (CA3 1983), cert. dism'd
under this Court's Rule 53, 464 U.S. 1033 (1984), the Court of Appeals stated
that " customary discretion accorded to a district court's ruling on
a preliminary injunction yields to our plenary scope of review as to the
applicable law." 737 F.2d 283, 290 (1984). Apple Computer, in turn,
relied on Judge Friendly's opinion for the Second Circuit in Donovan v.
Bierwirth, 680 F.2d 263, 269, cert. denied, 459 U.S. 1069 (1982): "Despite
oft repeated statements that the issuance of a preliminary injunction rests
in the discretion of the trial Judge whose decisions will be reversed only
for 'abuse', a court of appeals must reverse if the district court has proceeded
on the basis of an erroneous view of the applicable law, or of the standards
governing the granting or denial of interlocutory relief" (citations
|||Donovan 's reasoning, however, goes only to the standard of appellate
review, not to the extent of the issues to be reviewed. Whether or not Donovan
's approach is sound, it is clear that a district court does not have discretion
to rule on the basis of a misapprehension of controlling law. But even assuming,
arguendo, that, where a court of appeals detects such an error, it may then
engage in de novo review of the determination whether a preliminary injunction
should issue, see 680 F.2d, at 270, such discretion does not ordinarily
extend to deciding the merits of the controversy with finality. Judge Friendly
did no such thing in Donovan, id., at 276, nor did the Third Circuit in
Apple Computer, see 714 F.2d, at 1242.
|||What is at issue here is a matter of legal principle. As JUSTICE BLACKMUN
has observed on a previous occasion: "The distinction between the preliminary
and final injunction stages of a proceeding is more than mere formalism.
The time pressures involved in a request for a preliminary injunction require
courts to make determinations without the aid of full briefing or factual
development, and make all such determinations necessarily provisional."
Firefighters v. Stotts, 467 U.S. 561, 603-604, n. 7 (1984) (dissenting opinion).
The holding of the Court today thus comes at the expense of the basic principle
underlying the framework set out in Camenisch for ruling on a motion for
a preliminary injunction: that fairness to the parties and reliable adjudication
of disputes require final, binding rulings on the merits of a controversy
to be made only after each side has had an opportunity to establish its
version of the disputed facts or to establish that the facts are not in
|||Equally neglected by the Court is a second principle, closely related
to the first:
|||"Ordinarily an appellate court does not give consideration to issues
not raised below. For our procedural scheme contemplates that parties shall
come to issue in the trial forum vested with authority to determine questions
of fact. This is essential in order that parties may have the opportunity
to offer all the evidence they believe relevant to the issues which the
trial tribunal is alone competent to decide; it is equally essential in
order that litigants may not be surprised on appeal by final decision there
of issues upon which they have had no opportunity to introduce evidence."
Hormel v. Helvering, 312 U.S. 552, 556 (1941).
|||See also Singleton v. Wulff, 428 U.S. 106, 120-121 (1976); cf. Fountain
v. Filson, 336 U.S. 681, 683 (1949) (per curiam) (reversing a summary judgment
order "made on appeal on a new issue as to which the opposite party
had no opportunity to present a defense before the trial court"). The
cases on which the Court relies simply do not support the short shrift the
Court gives these basic principles.
|||In Youngstown Sheet & Tube Co., President Truman, invoking an immediate
threat to the national defense precipitated by a threatened nationwide strike
in the steel industry, ordered the Secretary of Commerce to seize the steel
mills and keep them running. 343 U.S., at 583. The steel companies sought
a declaratory judgment, a preliminary injunction, and a permanent injunction
against the seizure, on the grounds that the President had no authority
to order it. Ibid. Although the District Court had before it only "motions
for temporary injunctions" when it ruled, 103 F.Supp. 569, 572 (DC
1952), "in the light of the facts presented, the District Court saw
no reason for delaying decision of the constitutional validity of the orders."
Youngstown Sheet & Tube Co., supra, at 585. Indeed, the District Court
had " to a fixed Conclusion . . . that defendant's acts are illegal.
. . . Nothing that could be submitted at such trial on the facts would alter
the legal Conclusion I have reached." 103 F.Supp., at 576.
|||Thus, the District Court's preliminary injunction in Youngstown Sheet
& Tube Co. rested on what amounted to a declaratory judgment that the
orders were constitutionally invalid. That in itself was a pronounced departure
from normal practice, although one that this Court found proper in the highly
unusual circumstances presented in Youngstown Sheet & Tube Co., where
time was manifestly of the essence,** and there was no contention that the
Government had been deprived of an opportunity to present facts that could
have altered the resolution of the constitutional question. To the contrary,
when " moved for a preliminary injunction before answer or hearing,
opposed the motion, filing uncontroverted affidavits of Government officials
describing the facts underlying the President's order." 343 U.S., at
678 (Vinson, C. J., Dissenting).
|||Neither of the foregoing justifications for the District Court's unusual
decision to reach the merits in Youngstown Sheet & Tube is present here.
No emergency remotely comparable to the one in Youngstown Sheet & Tube
confronted the Court of Appeals, which granted appellees' motion to enjoin
enforcement of the entire Act pending appeal, and withheld judgment until
after this Court had ruled in Akron and its companion cases. 737 F.2d, at
290. Appellants conceded in the Court of Appeals that several provisions
of the Abortion Act were unconstitutional in the wake of those decisions,
but appellants did not concede that the provisions on which the Court of
Appeals dispositively ruled were unconstitutional. Nor is there any suggestion
that appellants conceded in the Court of Appeals that there were no factual
issues that could have a bearing on the constitutionality of these provisions.
Consequently, even if a preliminary injunction should have issued, the proper
course would have been to remand for final determination of the merits.
|||Indeed, since Youngstown Sheet & Tube Co. was decided this Court has
expressly reaffirmed that "a state statute should not be declared unconstitutional
by a district court if a preliminary injunction is granted a plaintiff to
protect his interests during the ensuing litigation." Withrow v. Larkin,
421 U.S. 35, 43 (1975). See Mayo v. Lakeland Highlands Canning Co., 309
U.S. 310 (1940). If it is improper for a district court to enter such a
declaratory judgment when it grants a preliminary injunction, then a fortiori
it is improper for a court of appeals to do so when the district court has
only appraised the likelihood of success on the merits. What happened here
is even more extreme: the Court of Appeals, reviewing the denial of a preliminary
injunction, held in the first instance that nothing that could be submitted
at a trial on the merits would alter its Conclusion that "most of the
provisions attacked by appellants are unconstitutional as a matter of law."
737 F.2d, at 287. Nothing in Youngstown Sheet & Tube Co. remotely suggests
that it was proper for the Court of Appeals to take this extraordinary step.
"Camenisch makes clear that a determination of a party's entitlement
to a preliminary injunction is a separate issue from the determination of
the merits of the party's underlying legal claim, and that a reviewing court
should not confuse the two." Stotts, 467 U.S., at 603 (BLACKMUN, J.,
|||The Court strays even further afield when it invokes Smith v. Vulcan Iron
Works in defense of the Court of Appeals' decision to reach and resolve
the merits despite the fact that the District Court had not done so and
without giving the parties "the benefit . . . of a full opportunity
to present their cases." Camenisch, 451 U.S., at 396. The trial court
in Smith, "upon a bill in equity for the infringement of a patent for
an invention . . . entered an interlocutory decree, adjudging that the patent
was valid and had been infringed, granting an injunction, and referring
the case to a master to take an account of profits and damages." 165
U.S., at 518 (emphasis added). The defendant challenged the trial court's
alleged "error in holding that the patent was valid, and that it had
been infringed." Ibid. The Circuit Court of Appeals reversed the decree,
rejecting the plaintiff's contention that it could rule only on "whether
an injunction should be awarded." Ibid. This Court held that under
the plain language of the statute conferring jurisdiction on the Circuit
Court of Appeals, an appeal was authorized "from the whole of such
interlocutory order or decree, and not from that part of it only which grants
or continues an injunction," and consequently the statute conferred
"authority to consider and decide the case upon its merits." Id.,
at 525. The trial court, of course, had already done precisely that, deciding
the issue of liability after the parties had joined issue on the merits,
while referring the matter of damages to a master. Reliance on Smith in
this case is therefore misplaced, for, to repeat, the District Court did
not decide -- and could not properly have decided -- the merits of appellees'
constitutional claims when it refused to grant a preliminary injunction.
|||The Court also seeks comfort in an analogy to the rule that a federal
court need not abstain, pending state-court review, from reviewing a constitutional
challenge to the validity of a state statute that is not fairly subject
to an interpretation that will avoid the constitutional question. Zwickler
v. Koota, 389 U.S. 241, 251, and n. 14 (1967). When a federal district court
declines to abstain, however, it does not in so doing decide the merits
of the constitutional question even if the parties have not had a full opportunity
to air them. The court simply proceeds to decide the case in accordance
with the normal procedural requirements that safeguard the parties' rights
to be heard. A refusal to abstain therefore infringes neither the principle
that final judgment should follow a full opportunity to be heard on the
factual and legal merits of the case, nor the principle that "parties
shall come to issue in the trial forum vested with authority to determine
questions of fact." Hormel, 312 U.S., at 556. The same cannot be said
of what the Court of Appeals did here.
|||Whatever the exceptions which would justify a district court in finally
resolving an issue on the merits at the preliminary injunction stage, no
such exception was applicable here. Nor is this a case in which the court
of appeals was justified in resolving an issue not passed on in the district
court because proper resolution was beyond any doubt or grave inJustice
might result from failure to do so. See Singleton v. Wulff, 428 U.S., at
121. The Court of Appeals not only decided to stand in the shoes of the
District Court by ruling on an issue not passed upon below -- it ruled on
an issue on which, absent extraordinary circumstances, the District Court
could not have ruled without "'clear and unambiguous notice'"
that would "'afford the parties a full opportunity to present their
respective cases.'" Camenisch, supra, at 395. The Court attempts to
veil the impropriety of its decision to affirm on the merits despite the
procedural posture of this case by implying that the challenged provisions
are patently unconstitutional. But this claim too is unsupported in this
Court's decisions concerning state regulation of abortion.
|||The discretionary exception the Court fashions today will also prove vexatious
to administer. Parties now face the risk that a final ruling on the merits
will be entered against them by a court of appeals when an appeal is taken
from the grant or denial of a motion for a preliminary injunction, although
the district court made only an initial assessment of the likelihood that
the moving party would succeed on the merits. It is predictable that parties
will respond by attempting to turn preliminary injunction proceedings into
contests over summary judgment or full-scale trials on the merits. That
tendency will make the preliminary injunction less useful in serving its
intended function of preserving the status quo pending final judgment on
the merits, while making litigation more expensive, less reliable, and less
fair. If this case did not involve state regulation of abortion, it may
be doubted that the Court would entertain, let alone adopt, such a departure
from its precedents.
|||In this Court, appellants argue that the judgment of the Court of Appeals
should be vacated and the District Court's denial of a preliminary injunction
sustained. Appellants have stated that they "intend to present to the
District Court a complete factual record which . . . could affect the Disposition
of this case," and have indicated some of the specific factual propositions
they would seek to establish. Brief for Appellants 44-48. At oral argument,
counsel for appellants reiterated that, with the exception of the second-physician
requirement, "there are additional justifications by way of facts that
we can offer" as to each of the challenged provisions. Tr. of Oral
Arg. 13. These assertions alone would justify vacating the judgment of the
Court of Appeals insofar as that court did more than direct the entry of
a preliminary injunction. In Singleton v. Wulff, supra, at 120, for example,
this Court reversed the Court of Appeals' decision to reach the merits of
that case, even though this Court had "no idea what evidence, if any,
petitioner would, or could, offer in defense of this statute," because
it was clear that "petitioner has had no opportunity to proffer such
evidence." I would apply that reasoning here even if I were not persuaded
that as to several of the challenged provisions additional factual development
-- for example, facts concerning the costs associated with the reporting
and informed consent provisions, and the extent of the problems Pennsylvania
was seeking to correct -- could affect the decision on the merits. Appellants
should not have to prove that they are entitled to an opportunity to be
|||Since it rendered "what amounts to a final declaratory judgment on
the constitutionality of the statute," ante, at 806 (WHITE, J., Dissenting),
the Court of Appeals necessarily believed that in light of Akron and its
companion cases appellees had established a sufficient likelihood of success
on the merits to warrant issuance of a preliminary injunction. Pennsylvania
contends that this ruling is erroneous even under the supervening decisions
of this Court. In the alternative, Pennsylvania suggests that the facial
constitutionality of the challenged provisions of its Abortion Act may be
sustained on this record.
|||I agree with much of what JUSTICE WHITE has written in Part II of his
Dissenting opinion, and the arguments he has framed might well suffice to
show that the provisions at issue are facially constitutional. Nonetheless,
I believe the proper course is to decide this case as the Court of Appeals
should have decided it, lest appellees suffer the very prejudice the Court
sees fit to inflict on appellants. For me, then, the question is not one
of "success" but of the "likelihood of success." In
addition, because Pennsylvania has not asked the Court to reconsider or
overrule Roe v. Wade, 410 U.S. 113 (1973), I do not address that question.
|||I do, however, remain of the views expressed in my Dissent in Akron, 462
U.S., at 459-466. The State has compelling interests in ensuring maternal
health and in protecting potential human life, and these interests exist
"throughout pregnancy." Id., at 461 (O'CONNOR, J., Dissenting).
Under this Court's fundamental-rights jurisprudence, judicial scrutiny of
state regulation of abortion should be limited to whether the state law
bears a rational relationship to legitimate purposes such as the advancement
of these compelling interests, with heightened scrutiny reserved for instances
in which the State has imposed an "undue burden" on the abortion
decision. Id., at 461-463 (O'CONNOR, J., Dissenting). An undue burden will
generally be found "in situations involving absolute obstacles or severe
limitations on the abortion decision," not wherever a state regulation
"may 'inhibit' abortions to some degree." Id., at 464 (O'CONNOR,
J., Dissenting). And if a state law does interfere with the abortion decision
to an extent that is unduly burdensome, so that it becomes "necessary
to apply an exacting standard of review," id., at 467 (O'CONNOR, J.,
Dissenting), the possibility remains that the statute will withstand the
stricter scrutiny. See id., at 473-474 (O'CONNOR, J., Dissenting); Ashcroft,
462 U.S., at 505 (O'CONNOR, J., Concurring in judgment in part and Dissenting
|||These principles for evaluating state regulation of abortion were not
newly minted in my Dissenting opinion in Akron. Apart from Roe 's outmoded
trimester framework, the "unduly burdensome" standard had been
articulated and applied with fair consistency by this Court in cases such
as Harris v. McRae, 448 U.S. 297, 314 (1980), Maher v. Roe, 432 U.S. 464,
473 (1977), Beal v. Doe, 432 U.S. 438, 446 (1977), and Bellotti v. Baird,
428 U.S. 132, 147 (1976). In Akron and Ashcroft the Court, in my view, distorted
and misapplied this standard, see Akron, 462 U.S., at 452-453 (O'CONNOR,
J., Dissenting), but made no clean break with precedent and indeed "
this approach" in assessing some of the regulations before it in those
cases. Id., at 463 (O'CONNOR, J., Dissenting).
|||The Court today goes well beyond mere distortion of the "unduly burdensome"
standard. By holding that each of the challenged provisions is facially
unconstitutional as a matter of law, and that no conceivable facts appellants
might offer could alter this result, the Court appears to adopt as its new
test a per se rule under which any regulation touching on abortion must
be invalidated if it poses "an unacceptable danger of deterring the
exercise of that right." Ante, at 767. Under this prophylactic test,
it seems that the mere possibility that some women will be less likely to
choose to have an abortion by virtue of the presence of a particular state
regulation suffices to invalidate it. Simultaneously, the Court strains
to discover "the anti-abortion character of the statute," ante,
at 764, and, as JUSTICE WHITE points out, invents an unprecedented canon
of construction under which "in cases involving abortion, a permissible
reading of a statute is to be avoided at all costs." Ante, at 812 (dissenting).
I shall not belabor the dangerous extravagance of this dual approach, because
I hope it represents merely a temporary aberration rather than a portent
of lasting change in settled principles of constitutional law. Suffice it
to say that I dispute not only the wisdom but also the legitimacy of the
Court's attempt to discredit and pre-empt state abortion regulation regardless
of the interests it serves and the impact it has.
|||Under the "unduly burdensome" test, the District Judge's Conclusion
that appellees were not entitled to a preliminary injunction was clearly
correct. Indeed, the District Judge applied essentially that test, after
suggesting that no "meaningful distinction can be made between the
plaintiffs' 'legally significant burden' and defendants' 'undue burden.'"
552 F.Supp., at 796. I begin, as does the Court, with the Act's informed
|||The Court condemns some specific features of the informed consent provisions
of § 3205, and issues a blanket condemnation of the provisions in their
entirety as irrelevant or distressing in some cases and as intruding on
the relationship between the woman and her physician. JUSTICE WHITE convincingly
argues that none of the Court's general criticisms is appropriate, since
the information is clearly relevant in many cases and is calculated to inform
rather than intimidate, and since all informed consent requirements must,
from the very rationale for their existence, intrude to some extent on the
physician's discretion to be the sole Judge of what his or her patient needs
to know. The "parade of horribles" the Court invalidated in Akron,
supra, at 445, is missing here. For example, § 3205(a)(iii) requires that
the woman be informed, "when medically accurate," of the risks
associated with a particular abortion procedure, and § 3205(a)(v) requires
the physician to inform the woman of " medical risks associated with
carrying her child to term." This is the kind of balanced information
I would have thought all could agree is relevant to a woman's informed consent.
|||I do not dismiss the possibility that requiring the physician or counselor
to read aloud the State's printed materials if the woman wishes access to
them but cannot read raises First Amendment concerns. Even the requirement
that women who can read be informed of the availability of those materials,
and furnished with them on request, may create some possibility that the
physician or counselor is being required to "communicate [the State's]
ideology." Akron, supra, at 472, n. 16 (O'CONNOR, J., Dissenting);
see Wooley v. Maynard, 430 U.S. 705 (1977). Since the Court of Appeals did
not reach appellees' First Amendment claim, and since appellees do not raise
it here, I need not decide whether this potential problem would be sufficiently
serious to warrant issuance of a preliminary injunction as to those portions
of § 3205 that incorporate the printed information provisions of § 3208.
I note, however, that this is one of many points on which fuller factual
development, including the actual contents of the printed materials, could
affect resolution of the merits.
|||The Court singles out for specific criticism the required description,
in the printed materials, of fetal characteristics at 2-week intervals.
These materials, of course, will be shown to the woman only if she chooses
to inspect them. If the materials were sufficiently inflammatory and inaccurate
the fact that the woman must ask to see them would not necessarily preclude
finding an undue burden, but there is no indication that this is true of
the description of fetal characteristics the statute contemplates. Accordingly,
I think it unlikely that appellees could succeed in making the threshold
showing of an undue burden on this point, and the information is certainly
rationally related to the State's interests in ensuring informed consent
and in protecting potential human life. Similarly, I see little chance that
appellees can establish that the abortion decision is unduly burdened by
§ 3205's requirements that the woman be informed of the availability of
medical assistance benefits and of the father's legal responsibility. Here
again, the information is indisputably relevant in many cases and would
not appear to place a severe limitation on the abortion decision.
|||The Court's rationale for striking down the reporting requirements of
§ 3214, as JUSTICE WHITE shows, rests on an unsupported finding of fact
by this Court to the effect that " is the obvious purpose of these
extreme reporting requirements." Ante, at 767 (opinion of the Court).
The Court's "finding," which is contrary to the preliminary finding
of the District Judge that the statute's confidentiality requirements protected
against any invasion of privacy that could burden the abortion decision,
see 552 F.Supp., at 804, is simply another consequence of the Court's determination
to prevent the parties from developing the facts. I do not know whether
JUSTICE WHITE is correct in stating that "the provisions pose little
or no threat to the woman's privacy," ante, at 807 (dissenting), and
I would leave that determination for the District Court, which can hear
evidence on this point before making its findings. I do not, however, see
a substantial threat of identification on the face of the statute, which
does not require disclosure of the woman's identity to anyone, and which
provides that reports shall be disclosed to the public only in "a form
which will not lead to the disclosure of the identity of any person filing
a report." § 3214(e)(2). I therefore conclude that the District Judge
correctly ruled that appellees are unlikely to succeed in establishing an
undue burden on the abortion decision stemming from the possibility of identification.
|||I fully agree with JUSTICE WHITE that the Court has misconstrued the intended
meaning of § 3210(b)'s requirement that physicians employ the abortion method
that is most likely to save the fetus unless, in the physician's good-faith
judgment, that method "would present a significantly greater risk to
the life or health of the pregnant woman." Since § 3210(b) can fairly
be read to require "only that the risk be a real and identifiable one,"
ante, at 807 (WHITE, J., Dissenting), there is little possibility that a
woman's abortion decision will be unduly burdened by risks falling below
that threshold. Accordingly, § 3210(b) should not be preliminarily enjoined,
and I express no opinion as to the point at which a "trade-off"
between the health of the woman and the survival of the fetus would rise
to the level of an undue burden.
|||Since appellants and appellees agree that no further fact-finding is needed
concerning appellees' challenge to § 3210(c)'s second-physician requirement,
I am willing to assume that the merits of that challenge are properly before
us. I have nothing to add to JUSTICE WHITE'S demonstration that this provision
is constitutional under Ashcroft because the Act effectively provides for
an exception making this requirement inapplicable in emergency situations.
I likewise agree with JUSTICE WHITE that the preliminary injunction entered
against enforcement of the Act's parental notice and consent provisions
should be vacated, since, as in Ashcroft, there is no reason here to believe
that the State will not provide for the expedited procedures called for
by its statute. See Ashcroft, 462 U.S., at 491, n. 16 (opinion of POWELL,
J.). I add only that the Court's explanation for its refusal to follow Ashcroft
-- that the new rules "should be considered by the District Court in
the first instance," ante, at 758, n. 9 -- does not square with its
insistence on resolving the rest of this case without giving the District
Court an opportunity to do so.
|||In my view, today's decision makes bad constitutional law and bad procedural
law. The "'undesired and uncomfortable straitjacket'" in this
case, ante, at 762, is not the one the Court purports to discover in Pennsylvania's
statute; it is the one the Court has tailored for the 50 States. I respectfully
|||* Briefs of amici curiae urging reversal were filed for the United States
by Acting Solicitor General Fried, Acting Assistant Attorney General Willard,
Deputy Assistant Attorney General Kuhl, John F. Cordes, and John M. Rogers;
for the National Right to Life Committee, Inc., by James Bopp, Jr.; for
the United States Catholic Conference by Wilfred R. Caron and Mark E. Chopko;
for Senator Gordon J. Humphrey et al. by Robert A. Destro and Basile J.
Uddo; for Watson D. Bowes, Jr., et al. by Steven Frederick McDowell; and
for John D. Lane et al. by John E. McKeever.
|||Briefs of amici curiae urging affirmance were filed for the Attorney General
of New York by Robert Abrams, Attorney General, pro se, Robert Hermann,
Solicitor General, Rosemarie Rhodes, Assistant Attorney General, and Lawrence
S. Kahn, Sanford M. Cohen, and Martha J. Olson, Assistant Attorneys General;
for the American Civil Liberties Union et al. by Nan D. Hunter, Janet Benshoof,
and Suzanne M. Lynn; for the American Medical Association et al. by Benjamin
W. Heineman, Jr., Carter G. Phillips, Newton N. Minow, Jack R. Bierig, Stephan
E. Lawton, Joel I. Klein, Joseph A. Keyes, Jr., and Ann E. Allen; for the
Center for Constitutional Rights et al. by Anne E. Simon, Nadine Taub, Rhonda
Copelon, and Judith Levin; for the National Abortion Federation by David
I. Shapiro, Sidney Dickstein, Kenneth M. Simon, and Amy G. Applegate; for
the National Abortion Rights Action League et al. by Lynn I. Miller; for
the National Family Planning and Reproductive Health Association, Inc.,
by Robert T. Crothers; for the National Organization for Women et al. by
Diane E. Thompson; and for the Planned Parenthood Federation of America,
Inc., et al. by Dara Klassel and Eve W. Paul.
|||Briefs of amici curiae were filed for the American Psychological Association
by Donald N. Bersoff and Bruce J. Ennis; for the Women's Lawyers' Association
of Los Angeles, California, et al. by Susan R. Schwartz, Carol Boyk, Judith
Gordon, and Lorraine Loder; for the Unitarian Universalist Association et
al. by Madeline Kochen; for Senator Bob Packwood et al. by Laurence H. Tribe
and Kathleen M. Sullivan; for Susan Bandes et al. by Arthur Kinoy; and for
Olivia Gans et al. by James Bopp, Jr.
|||*fn1 The District Court had held
invalid and had enjoined preliminarily only the requirement of § 3205(a)(2)
that at least 24 hours must elapse between a woman's receipt of specified
information and the performance of her abortion. 552 F.Supp. 791, 797-798,
811 (ED Pa. 1982).
|||*fn2 The Court of Appeals also
held § 3215(e) invalid. That section requires health-care insurers to make
available, at a lesser premium, policies expressly excluding coverage "for
abortion services not necessary to avert the death of the woman or to terminate
pregnancies caused by rape or incest." This ruling on § 3215(e) is
not before us.
|||*fn3 A "tough-guy competition"
is a physical contact bout between persons who lack professional experience
and who attempt to render each other unconscious. See Note, 87 Dick. L.
Rev. 373, 382, n. 84 (1983).
|||*fn4 Section 1254 reads in pertinent
|||"Cases in the courts of appeals may be reviewed by the Supreme Court
by the following methods:
|||"(2) By appeal by a party relying on a State statute held by a court
of appeals to be invalid as repugnant to the Constitution, treaties or laws
of the United States . . . ."
|||*fn5 Appellants ask that Slaker
be overruled. See Brief for Appellants 10, 22-25.
|||*fn6 We continue, however, to
refer to the parties as appellants and appellees, respectively.
|||*fn7 This principle finds an
analogy in an established doctrine of administrative law. In SEC v. Chenery
Corp., 318 U.S. 80 (1943), the Court ruled that a reviewing court could
not affirm an agency on a principle the agency might not embrace. But the
ruling in Chenery has not required courts to remand in futility. See Illinois
v. ICC, 722 F.2d 1341, 1348-1349 (CA7 1983); see also Friendly, Chenery
Revisited: Reflections on Reversal and Remand of Administrative Orders,
1969 Duke L. J. 199.
|||*fn8 A different situation is
presented, of course, when there is no disagreement as to the law, but the
probability of success on the merits depends on facts that are likely to
emerge at trial. See Delaware & Hudson R. Co. v. United Transportation
Union, 146 U. S. App. D.C. 142, 159, 450 F.2d 603, 620, cert. denied, 403
U.S. 911 (1971). See also Airco, Inc. v. Energy Research & Development
Admin., 528 F.2d 1294, 1296 (CA7 1975); California ex rel. Younger v. Tahoe
Regional Planning Agency, 516 F.2d 215, 217 (CA9), cert. denied, 423 U.S.
868 (1975); Natural Resources Defense Council, Inc. v. Morton, 148 U. S.
App. D.C. 5, 10, 458 F.2d 827, 832 (1972); Benda v. Grand Lodge, 584 F.2d
308, 314 (CA9 1978), cert. dism'd, 441 U.S. 937 (1979); FTC v. Southwest
Sunsites, Inc., 665 F.2d 711, 717 (CA5), cert. denied, 456 U.S. 973 (1982).
|||*fn9 Not before us are: § 3203
(definition of "abortion"); § 3205 (24-hour waiting period and
physician-only counseling); §§ 3207(b) and 3214(f) (public disclosure of
reports); § 3209 (requirement of hospitalization for an abortion subsequent
to the first trimester); § 3210(a) (penalties for abortion after viability,
and the "complete defense" thereto); § 3215(c) (proscription of
use of public funds for abortion services); and § 3215(e) (compulsory availability
of insurance excluding certain abortion services).
|||Remanded for record development or otherwise not invalidated, and therefore
not before us, are: § 3206 (parental consent -- operation of statute enjoined
until promulgation of rules by the Supreme Court of Pennsylvania assuring
confidentiality and promptness of Disposition); § 3207(b) (abortion facilities
and reports from them for public disclosure); and §§ 3214(c), (d), (f),
and (g) (other reporting requirements -- challenges either not made or withdrawn).
|||On June 17, 1985, the District Court, after hearing, preliminarily enjoined
the enforcement of §§ 3207(b) and 3214(f). 613 F.Supp. 656 (ED Pa.). See
n. 12, (infra).
|||The Supreme Court of Pennsylvania issued the suggested rules, mentioned
above, on November 26, 1984, after the appeal in this case was docketed
here. See Pennsylvania Orphans' Court Rules 16.1 to 16.8, reprinted in Pa.
Stat. Ann., Tit. 20, pp. 65, 66 (Purdon Supp. to §§ 101-2507, 1986-1987).
Appellants thereupon filed a motion with the District Court that the injunction
against enforcement of § 3206 be vacated. App. 53a. That court, however,
denied the motion, concluding that it had no jurisdiction "to issue
the order seek" while the case was on appeal here. Id., at 57a, 61a.
We decline appellants' suggestion that we now examine this feature of the
case in the light of the new rules, for we conclude that this development
should be considered by the District Court in the first instance.
|||*fn10 Following this Court's
lead in Akron, federal courts consistently have stricken fetal-description
requirements because of their inflammatory impact. See, e. g., Planned Parenthood
League of Massachusetts v. Bellotti, 641 F.2d 1006, 1021-1022 (CA1 1981);
Charles v. Carey, 627 F.2d 772, 784 (CA7 1980); Planned Parenthood Assn.
of Kansas City v. Ashcroft, 655 F.2d 848, 868 (CA8 1981); Women's Medical
Center of Providence, Inc. v. Roberts, 530 F.Supp. 1136, 1152-1154 (RI 1982).
|||*fn11 In their argument against
this Conclusion, appellants claim that the informational requirements must
be held constitutional in the light of this Court's summary affirmance in
Franklin v. Fitzpatrick, 428 U.S. 901 (1976), of the judgment in Planned
Parenthood Assn. v. Fitzpatrick, 401 F.Supp. 554 (ED Pa. 1975). That litigation
concerned the Commonwealth's 1974 Abortion Control Act. Its informed-consent
provision, however, did not contain such plainly unconstitutional informational
requests as those in the current Act, or any physician-only counseling or
24-hour waiting-period requirements. The summary affirmance also preceded
the decision in Akron and, to the extent, if any at all, it might be considered
to be inconsistent with Akron, the latter, of course, controls.
|||*fn12 Appellees advise us,
see Brief for Appellees 38-39, that they sought in the District Court a
preliminary injunction against the requirement that the facility identification
report and the quarterly statistical report be made available for public
inspection and copying, and that on June 17, 1985, after full hearing, the
District Court entered a preliminary injunction against the enforcement
of these public-disclosure requirements. Appellees assert that the record
of that hearing shows a continuous pattern of violence and harassment directed
against the patients and staff of abortion clinics; that the District Court
concluded that this would be increased by the public disclosure of facility
names and quarterly statistical reports; and that public disclosure would
impose a burden on the woman's right to an abortion by heightening her fear
and anxiety, and by discouraging her physician from offering an abortion
because, by so doing, he would avoid pressure from anti-abortion forces.
That record, of course, is not now before us. We need place no reliance
upon it and we draw no Conclusion from it.
|||*fn13 Section 3210(b) reads:
|||"Every person who performs or induces an abortion after an unborn
child has been determined to be viable shall exercise that degree of professional
skill, care and diligence which such person would be required to exercise
in order to preserve the life and health of any unborn child intended to
be born and not aborted and the abortion technique employed shall be that
which would provide the best opportunity for the unborn child to be aborted
alive unless, in the good faith judgment of the physician, that method or
technique would present a significantly greater medical risk to the life
or health of the pregnant woman than would another available method or technique
and the physician reports the basis for his judgment. The potential psychological
or emotional impact on the mother of the unborn child's survival shall not
be deemed a medical risk to the mother. Any person who intentionally, knowingly
or recklessly violates the provisions of this subsection commits a felony
of the third degree."
|||*fn14 This makes it unnecessary
for us to consider appellees' further argument that § 3210(b) is void for
|||*fn15 Section 3210(c) reads:
|||"Any person who intends to perform an abortion the method chosen
for which, in his good faith judgment, does not preclude the possibility
of the child surviving the abortion, shall arrange for the attendance, in
the same room in which the abortion is to be completed, of a second physician.
Immediately after the complete expulsion or extraction of the child, the
second physician shall take control of the child and shall provide immediate
medical care for the child, taking all reasonable steps necessary, in his
judgment, to preserve the child's life and health. Any person who intentionally,
knowingly or recklessly violates the provisions of this subsection commits
a felony of the third degree."
|||*fn16 JUSTICE O'CONNOR, joined
by JUSTICES WHITE and REHNQUIST, stated somewhat categorically that the
second-physician requirement was constitutional. 462 U.S., at 505.
|||*fn17 Section 3210(a) reads:
|||"Any person who intentionally, knowingly or recklessly performs or
induces an abortion when the fetus is viable commits a felony of the third
degree. It shall be a complete defense to any charge brought against a physician
for violating the requirements of this section that he had concluded in
good faith, in his best medical judgment, that the unborn child was not
viable at the time the abortion was performed or induced or that the abortion
was necessary to preserve maternal life or health."
|||1 Compare, e. g., his opinion for the Court in Meachum v. Fano, 427 U.S.
215 (1976), with my Dissent in that case, id., at 229.
|||2 See, e. g., Stevens, Judicial Restraint, 22 San Diego L. Rev. 437, 449-450
|||3 "The nature of the right invaded is pertinent, to be sure, for
statutes regulating sensitive areas of liberty do, under the cases of this
Court, require 'strict scrutiny,' Skinner v. Oklahoma, 316 U.S. 535, 541,
and 'must be viewed in the light of less drastic means for achieving the
same basic purpose.' Shelton v. Tucker, 364 U.S. 479, 488. 'Where there
is a significant encroachment upon personal liberty, the State may prevail
only upon showing a subordinating interest which is compelling.' Bates v.
Little Rock, 361 U.S. 516, 524. See also McLaughlin v. Florida, 379 U.S.
184. But such statutes, if reasonably necessary for the effectuation of
a legitimate and substantial state interest, and not arbitrary or capricious
in application, are not invalid under the Due Process Clause. Zemel v. Rusk,
381 U.S. 1." 381 U.S., at 503-504.
|||4 At times JUSTICE WHITE's rhetoric conflicts with his own analysis. For
instance, his emphasis on the lack of a decision by "the people . .
. in 1787, 1791, 1868, or any time since," post, at 797, stands in
sharp contrast to his earlier, forthright rejection of "the simplistic
view that constitutional interpretation can possibly be limited to 'the
plain meaning' of the Constitution's text or to the subjective intention
of the Framers." Post, at 789. Similarly, his statement that an abortion
decision should be subject to "the will of the people," post,
at 796, does not take us very far in determining which people -- the majorities
in state legislatures or the individuals confronted with unwanted pregnancies.
In view of his agreement that the decision about abortion is "a species
of liberty" protected by the Constitution, moreover, post, at 790,
and in view of the fact that "liberty" plays a rather prominent
role in our Constitution, his suggestion that the Court's evaluation of
that interest represents the imposition of "extraconstitutional value
preferences," post, at 794, seems to me inexplicable. This characterization
of the Court's analysis as "extraconstitutional" also does not
reflect JUSTICE WHITE's simultaneous recognition that " Constitution
. . . is a document announcing fundamental principles in value-laden terms
that leave ample scope for the exercise of normative judgment by those charged
with interpreting and applying it." Post, at 789. Finally, I fail to
see how the fact that "men and women of good will and high commitment
to constitutional government," post, at 793, are on both sides of the
abortion issue helps to resolve the difficult constitutional question before
us; I take it that the disputants in most constitutional controversies in
our free society can be similarly characterized.
|||5 "What a person is, what he wants, the determination of his life
plan, of his concept of the good, are the most intimate expressions of self-determination,
and by asserting a person's responsibility for the results of this self-determination
we give substance to the concept of liberty." C. Fried, Right and Wrong,
|||See also Fried, Correspondence, 6 Phil. & Pub. Aff. 288-289 (1977)
(the concept of privacy embodies the "moral fact that a person belongs
to himself and not others nor to society as a whole").
|||6 JUSTICE WHITE's characterization of the governmental interest as "protecting
those who will be citizens if their lives are not ended in the womb,"
post, at 795, reveals that his opinion may be influenced as much by his
own value preferences as by his view about the proper allocation of decisionmaking
responsibilities between the individual and the State. For if federal Judges
must allow the State to make the abortion decision, presumably the State
is free to decide that a woman may never abort, may sometimes abort, or,
as in the People's Republic of China, must always abort if her family is
already too large. In contrast, our cases represent a consistent view that
the individual is primarily responsible for reproductive decisions, whether
the State seeks to prohibit reproduction, Skinner v. Oklahoma, 316 U.S.
535 (1942), or to require it, Roe v. Wade, 410 U.S. 113 (1973).
|||7 The responsibility for nurturing the soul of the newly born, as well
as the unborn, rests with individual parents, not with the State. No matter
how important a sacrament such as baptism may be, a State surely could not
punish a mother for refusing to baptize her child.
|||8 No Member of this Court has ever suggested that a fetus is a "person"
within the meaning of the Fourteenth Amendment.
|||9 See Roe v. Wade, supra, at 129-147.
|||10 He has, however, suggested that the concept of "liberty"
is limited by two basic "definitions" of the values at stake.
Post, at 790-791. Like JUSTICE WHITE, I share Justice Harlan's concern about
"Judges . . . roaming at large in the constitutional field." Ibid.;
see also Stevens, 22 San Diego L. Rev., at 449-450. But I am convinced that
JUSTICE WHITE's use of "definitions" is an inadequate substitute
for the difficult process of analysis and judgment that the guarantee of
liberty requires, a process nowhere better expressed than by Justice Harlan:
|||"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
|||"Each new claim to Constitutional protection must be considered against
a background of Constitutional purposes, as they have been rationally perceived
and historically developed. Though we exercise limited and sharply restrained
judgment, yet there is no 'mechanical yardstick,' no 'mechanical answer.'
The decision of an apparently novel claim must depend on grounds which follow
closely on well-accepted principles and criteria. The new decision must
take 'its place in relation to what went before and further a channel for
what is to come.' Irvine v. California, 347 U.S. 128, 147 (dissenting opinion)."
Poe v. Ullman, 367 U.S. 497, 542-544 (1961) (Harlan, J., Dissenting).
|||11 "These cases do not deal with the individual's interest in protection
from unwarranted public attention, comment, or exploitation. They deal,
rather, with the individual's right to make certain unusually important
decisions that will affect his own, or his family's, destiny. The Court
has referred to such decisions as implicating 'basic values,' as being 'fundamental,'
and as being dignified by history and tradition. The character of the Court's
language in these cases brings to mind the origins of the American heritage
of freedom -- the abiding interest in individual liberty that makes certain
state intrusions on the citizen's right to decide how he will live his own
life intolerable. Guided by history, our tradition of respect for the dignity
of individual choice in matters of conscience and the restraints implicit
in the federal system, federal Judges have accepted the responsibility for
recognition and protection of these rights in appropriate cases." Fitzgerald
v. Porter Memorial Hospital, 523 F.2d 716, 719-720 (CA7 1975) (footnotes
omitted), cert. denied, 425 U.S. 916 (1976).
|||12 "The very purpose of a Bill of Rights was to withdraw certain
subjects from the vicissitudes of political controversy, to place them beyond
the reach of majorities and officials and to establish them as legal principles
to be applied by the courts. One's right to life, liberty, and property,
to free speech, a free press, freedom of worship and assembly, and other
fundamental rights may not be submitted to vote; they depend on the outcome
of no elections." West Virginia Board of Education v. Barnette, 319
U.S. 624, 638 (1943).
|||* The Court's astounding rationale for this holding is that such information
might have the effect of "discouraging abortion," ante, at 762,
as though abortion is something to be advocated and encouraged. This is
at odds not only with Roe but with our subsequent abortion decisions as
well. As I stated in my opinion for the Court in H. L. v. Matheson, 450
U.S. 398 (1981), upholding a Utah statute requiring that a doctor notify
the parents of a minor seeking an abortion: "The Constitution does
not compel a state to fine-tune its statutes so as to encourage or faciliate
abortions. To the contrary, state action 'encouraging childbirth except
in the most urgent circumstances' is 'rationally related to the legitimate
governmental objective of protecting potential life.'" Id., at 413
(quoting Harris v. McRae, 448 U.S. 297, 325 (1980)).
|||1 I shall, for the most part, leave to one side the Court's somewhat extraordinary
procedural rulings. I do not strongly disagree with the Court's decision
to read a finality requirement into 28 U. S. C. § 1254(2), although I would
have thought it incumbent on the Court to explain why the Court of Appeals'
judgment as to the statutory provisions before us today, which represents
a definitive ruling on their constitutionality, is not sufficiently "final"
to satisfy the jurisdictional statute as interpreted by the Court.
|||As for the Court's ruling that it is permissible for an appellate court
to resolve an appeal from the grant or the denial of a preliminary injunction
by issuing a final judgment as to the constitutionality of a statute, I
do not disagree that this may, in rare cases, be an appropriate course of
action where the constitutional issues are clear. I would stress that this
is by no means the preferred course of action in the run of cases, and I
assume that the majority's opinion is not to the contrary. I do disagree
quite strongly with the majority's application of this principle here, as
I believe, contrary to the majority, that it is quite evident that the statute
before us is constitutional on its face. I also believe, as will become
evident, that at least one of the Court's rulings is exceedingly inappropriate
in view of the preliminary posture of this case even if the majority's legal
premises are accepted.
|||2 That the abortion decision, like the decisions protected in Griswold,
Eisenstadt, and Carey, concerns childbearing (or, more generally, family
life) in no sense necessitates a holding that the liberty to choose abortion
is "fundamental." That the decision involves the destruction of
the fetus renders it different in kind from the decision not to conceive
in the first place. This difference does not go merely to the weight of
the state interest in regulating abortion; it affects as well the characterization
of the liberty interest itself. For if the liberty to make certain decisions
with respect to contraception without governmental constraint is "fundamental,"
it is not only because those decisions are "serious" and "important"
to the individual, see ante, at 776 (STEVENS, J., Concurring), but also
because some value of privacy or individual autonomy that is somehow implicit
in the scheme of ordered liberties established by the Constitution supports
a judgment that such decisions are none of government's business. The same
cannot be said where, as here, the individual is not "isolated in her
|||My point can be illustrated by drawing on a related area in which fundamental
liberty interests have been found: childrearing. The Court's decisions in
Moore v. East Cleveland, Pierce v. Society of Sisters, and Meyer v. Nebraska
can be read for the proposition that parents have a fundamental liberty
to make decisions with respect to the upbringing of their children. But
no one would suggest that this fundamental liberty extends to assaults committed
upon children by their parents. It is not the case that parents have a fundamental
liberty to engage in such activities and that the State may intrude to prevent
them only because it has a compelling interest in the well-being of children;
rather, such activities, by their very nature, should be viewed as outside
the scope of the fundamental liberty interest.
|||3 JUSTICE STEVENS asserts, ante, at 778, that I am "quite wrong in
suggesting that the Court is imposing value preferences on anyone else"
when it denominates the liberty to choose abortion as "fundamental"
(in contradistinction to such other, nonfundamental liberties as the liberty
to use dangerous drugs or to operate a business without governmental interference)
and thereby disempowers state electoral majorities from legislating in this
area. I can only respond that I cannot conceive of a definition of the phrase
"imposing value preferences" that does not encompass the Court's
|||JUSTICE STEVENS also suggests that it is the legislative majority that
has engaged in "the unrestrained imposition of its own, extraconstitutional
value preferences" when a state legislature restricts the availability
of abortion. Ibid. But a legislature, unlike a court, has the inherent power
to do so unless its choices are constitutionally forbidden, which, in my
view, is not the case here.
|||4 Contrary to JUSTICE STEVENS' suggestion, ibid., this is no more a "theological"
position than is the Court's own judgment that viability is the point at
which the state interest becomes compelling. (Interestingly, JUSTICE STEVENS
omits any real effort to defend this judgment.) The point is that the specific
interest the Court has recognized as compelling after the point of viability
-- that is, the interest in protecting "potential human life"
-- is present as well before viability, and the point of viability seems
to bear no discernible relationship to the strength of that interest. Thus,
there is no basis for concluding that the essential character of the state
interest becomes transformed at the point of viability.
|||Further, it is self-evident that neither the legislative decision to assert
a state interest in fetal life before viability nor the judicial decision
to recognize that interest as compelling constitutes an impermissible "religious"
decision merely because it coincides with the belief of one or more religions.
Certainly the fact that the prohibition of murder coincides with one of
the Ten Commandments does not render a State's interest in its murder statutes
less than compelling, nor are legislative and judicial decisions concerning
the use of the death penalty tainted by their correspondence to varying
religious views on that subject. The simple, and perhaps unfortunate, fact
of the matter is that in determining whether to assert an interest in fetal
life, a State cannot avoid taking a position that will correspond to some
religious beliefs and contradict others. The same is true to some extent
with respect to the choice this Court faces in characterizing an asserted
state interest in fetal life, for denying that such an interest is a "compelling"
one necessarily entails a negative resolution of the "religious"
issue of the humanity of the fetus, whereas accepting the State's interest
as compelling reflects at least tolerance for a state decision that is congruent
with the equally "religious" position that human life begins at
conception. Faced with such a decision, the most appropriate course of action
for the Court is to defer to a legislative resolution of the issue: in other
words, if a state legislature asserts an interest in protecting fetal life,
I can see no satisfactory basis for denying that it is compelling.
|||5 JUSTICE STEVENS, see ante, at 776-777, n. 4, finds a contradiction between
my recognition that constitutional analysis requires more than mere textual
analysis or a search for the specific intent of the Framers, (supra) , at
789, and my assertion that it is ultimately the will of the people that
is the source of whatever values are incorporated in the Constitution. The
fallacy of JUSTICE STEVENS' argument is glaring. The rejection of what has
been characterized as "clause-bound" interpretivism, J. Ely, Democracy
and Distrust 12 (1980), does not necessarily carry with it a rejection of
the notion that constitutional adjudication is a search for values and principles
that are implicit (and explicit) in the structure of rights and institutions
that the people have themselves created. The implications of those values
for the resolution of particular issues will in many if not most cases not
have been explicitly considered when the values themselves were chosen --
indeed, there will be some cases in which those who framed the provisions
incorporating certain principles into the Constitution will be found to
have been incorrect in their assessment of the consequences of their decision.
See, e. g., Brown v. Board of Education, 347 U.S. 483 (1954). Nonetheless,
the hallmark of a correct decision of constitutional law is that it rests
on principles selected by the people through their Constitution, and not
merely on the personal philosophies, be they libertarian or authoritarian,
of the Judges of the majority. While constitutional adjudication involves
judgments of value, it remains the case that some values are indeed "extraconstitutional,"
in that they have no roots in the Constitution that the people have chosen.
The Court's decision in Lochner v. New York, 198 U.S. 45 (1905), was wrong
because it rested on the Court's belief that the liberty to engage in a
trade or occupation without governmental regulation was somehow fundamental
-- an assessment of value that was unsupported by the Constitution. I believe
that Roe v. Wade -- and today's decision as well -- rests on similarly extraconstitutional
assessments of the value of the liberty to choose an abortion.
|||6 Interestingly, the Court's statement seems to have assumed that the
Court would have had the same authority over "ethical questions"
as "constitutional issues" had it chosen to reach them -- an illuminating
revelation of the state of the Court's jurisprudence in this area.
|||7 Surely it cannot be argued that any abortion that is safer than delivery
is medically necessary, since under such a definition an abortion would
be medically necessary in all pregnancies.
|||8 Even if I were to accept the majority's Conclusion that the medical-necessity
defense of § 3210(a) is not specifically applicable to charges brought under
§ 3210(c), I would not strike down the statute. Under Pennsylvania , justification
is a defense, see 18 Pa. Cons. Stat. § 502 (1982), and, under the general
rule of justification, conduct is deemed justified if "the actor believes
to be necessary to avoid a harm or evil to . . . another," and "the
harm or evil sought to be avoided by such conduct is greater than that sought
to be prevented by the law defining the offense charged." § 503(a)(1).
I have little doubt that a Pennsylvania court applying this statute would
find noncompliance with the second-physician rule justified where necessary
to save the life of the pregnant woman.
|||** The extraordinary importance of prompt resolution of the steel companies'
claims is shown by the fact that this Court granted certiorari before judgment
in the Court of Appeals three days after the District Court ruled, and set
the case for argument nine days later, " it best that the issues raised
be promptly decided by this Court." 343 U.S., at 584.
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