(Cite
as: 505 U.S. 833, 112 S.Ct. 2791)
PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA, et al.,
Petitioners,
v.
Robert P. CASEY, et al., etc.
Robert P. CASEY, et al., etc., Petitioners,
v.
PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA et al.
Nos. 91‑744, 91‑902.
Supreme Court of the
United States
Argued April 22, 1992.
Decided June 29, 1992.
Abortion clinics and physician challenged, on due process grounds,
the constitutionality of the 1988 and 1989 amendments to the Pennsylvania
abortion statute. The United States District Court for the Eastern District of
Pennsylvania, Daniel H. Huyett, 3d, J., 744 F.Supp. 1323, held that several
sections of the statute were unconstitutional. Pennsylvania appealed. The Court
of Appeals for the Third Circuit, 947 F.2d 682, affirmed in part and reversed
in part. Certiorari was granted. The Supreme Court, Justices O'Connor, Kennedy
and Souter held that: (1) the doctrine of stare decisis requires reaffirmance
of Roe v. Wade's essential holding recognizing a woman's right to choose an
abortion before fetal viability; (2) the undue burden test, rather than the
trimester framework, should be used in evaluating abortion restrictions before
viability; (3) the medical emergency definition in the Pennsylvania statute was
sufficiently broad that it did not impose an undue burden; (4) the informed
consent requirements, the 24‑hour waiting period, parental consent
provision, and the reporting and recordkeeping requirements of the Pennsylvania
statute did not impose an undue burden; and (5) the spousal notification
provision imposed an undue burden and was invalid.
Affirmed in part, reversed in part, and remanded.
Justice Stevens filed an opinion concurring in part and dissenting
in part.
Justice Blackmun filed an opinion concurring in part, concurring
in the judgment in part, and dissenting in part.
Chief Justice Rehnquist filed an opinion concurring in the
judgment in part and dissenting in part, in which Justices White, Scalia and
Thomas joined.
Justice Scalia filed an opinion concurring in the judgment in part
and dissenting in part, in which Chief Justice Rehnquist and Justices White and
Thomas joined.
**2796 Syllabus [FN*]
FN* The syllabus
constitutes no part of the opinion of the Court but has been prepared by the Reporter
of Decisions for the convenience of the reader. See United States v. Detroit
Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.
*833 At issue are five
provisions of the Pennsylvania Abortion Control Act of 1982: § 3205, which
requires that a woman seeking an abortion give her informed consent prior to
the procedure, and specifies that she be provided with certain information at
least 24 hours before the abortion is performed; § 3206, which mandates the
informed consent of one parent for a minor to obtain an abortion, but provides
a judicial bypass procedure; § 3209, which commands that, unless certain
exceptions apply, a married woman seeking an abortion must sign a statement
indicating that she has notified her husband; § 3203, which defines a
"medical emergency" that will excuse compliance with the foregoing
requirements; and §§ 3207(b), 3214(a), and 3214(f), which impose certain
reporting requirements on facilities providing abortion services. Before any of
the provisions took effect, the petitioners, five abortion clinics and a
physician representing himself and a class of doctors who provide abortion
services, brought this suit seeking a declaratory judgment that each of the
provisions was unconstitutional on its face, as well as injunctive relief. The
District Court held all the provisions unconstitutional and permanently
enjoined their enforcement. The Court of Appeals affirmed in part and reversed
in part, striking down the husband notification provision but upholding the
others.
Held: The judgment in No. 91‑902 is affirmed; the judgment
in No. 91‑744 is affirmed in part and reversed in part, and the case is
remanded.
947 F.2d 682 (CA3 1991): No. 91‑902, affirmed; No. 91‑744,
affirmed in part, reversed in part, and remanded.
Justice O'CONNOR, Justice KENNEDY, and Justice SOUTER delivered
the opinion of the Court with respect to Parts I, II, and III, concluding that:
consideration of the fundamental constitutional question resolved by Roe v.
Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, principles of institutional
integrity, and the rule of stare decisis require that Roe's essential holding
be retained *834 and reaffirmed as
to each of its three parts: (1) a recognition of a woman's right to choose to
have an abortion before fetal viability and to obtain it without undue
interference from the State, whose previability interests are not strong enough
to support an abortion prohibition or the imposition of substantial obstacles
to the woman's effective **2797
right to elect the procedure; (2) a confirmation of the State's power to
restrict abortions after viability, if the law contains exceptions for
pregnancies endangering a woman's life or health; and (3) the principle that
the State has legitimate interests from the outset of the pregnancy in
protecting the health of the woman and the life of the fetus that may become a
child. Pp. 2803‑2816.
(a) A reexamination of the principles that define the woman's
rights and the State's authority regarding abortions is required by the doubt
this Court's subsequent decisions have cast upon the meaning and reach of Roe's
central holding, by the fact that THE CHIEF JUSTICE would overrule Roe, and by
the necessity that state and federal courts and legislatures have adequate
guidance on the subject. Pp. 2803‑2804.
(b) Roe determined that a woman's decision to terminate her
pregnancy is a "liberty" protected against state interference by the
substantive component of the Due Process Clause of the Fourteenth Amendment.
Neither the Bill of Rights nor the specific practices of States at the time of
the Fourteenth Amendment's adoption marks the outer limits of the substantive
sphere of such "liberty." Rather, the adjudication of substantive due
process claims may require this Court to exercise its reasoned judgment in
determining the boundaries between the individual's liberty and the demands of
organized society. The Court's decisions have afforded constitutional
protection to personal decisions relating to marriage, see, e.g., Loving v.
Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010, procreation, Skinner v.
Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655, family
relationships, Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed.
645, child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510,
45 S.Ct. 571, 69 L.Ed. 1070, and contraception, Griswold v. Connecticut, 381
U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, and have recognized the right of the
individual to be free from unwarranted governmental intrusion into matters so
fundamentally affecting a person as the decision whether to bear or beget a
child, Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d
349. Roe's central holding properly invoked the reasoning and tradition of these
precedents. Pp. 2804‑2808.
(c) Application of the doctrine of stare decisis confirms that
Roe's essential holding should be reaffirmed. In reexamining that holding, the
Court's judgment is informed by a series of prudential and pragmatic considerations
designed to test the consistency of overruling the holding with the ideal of
the rule of law, and to gauge the respective costs of reaffirming and
overruling. Pp. 2808‑2809.
*835 d) Although Roe has
engendered opposition, it has in no sense proven unworkable, representing as it
does a simple limitation beyond which a state law is unenforceable. P. 2809.
(e) The Roe rule's limitation on state power could not be
repudiated without serious inequity to people who, for two decades of economic
and social developments, have organized intimate relationships and made choices
that define their views of themselves and their places in society, in reliance
on the availability of abortion in the event that contraception should fail.
The ability of women to participate equally in the economic and social life of
the Nation has been facilitated by their ability to control their reproductive
lives. The Constitution serves human values, and while the effect of reliance
on Roe cannot be exactly measured, neither can the certain costs of overruling
Roe for people who have ordered their thinking and living around that case be
dismissed. P. 2809.
(f) No evolution of legal principle has left Roe's central rule a
doctrinal anachronism discounted by society. If Roe is placed among the cases
exemplified by Griswold, supra, it is clearly in no jeopardy, since subsequent
constitutional developments have neither disturbed, nor do they threaten to
diminish, the liberty recognized in such
**2798 cases. Similarly, if Roe is seen as stating a rule of personal
autonomy and bodily integrity, akin to cases recognizing limits on governmental
power to mandate medical treatment or to bar its rejection, this Court's post‑Roe
decisions accord with Roe's view that a State's interest in the protection of
life falls short of justifying any plenary override of individual liberty
claims. See, e.g., Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261, 278,
110 S.Ct. 2841, 2851, 111 L.Ed.2d 224. Finally, if Roe is classified as sui
generis, there clearly has been no erosion of its central determination. It was
expressly reaffirmed in Akron v. Akron Center for Reproductive Health, Inc.,
462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (Akron I ), and Thornburgh v.
American College of Obstetricians and Gynecologists, 476 U.S. 747, 106 S.Ct.
2169, 90 L.Ed.2d 779; and, in Webster v. Reproductive Health Services, 492 U.S.
490, 109 S.Ct. 3040, 106 L.Ed.2d 410, a majority either voted to reaffirm or
declined to address the constitutional validity of Roe' s central holding. Pp.
2810‑2811.
(g) No change in Roe's factual underpinning has left its central
holding obsolete, and none supports an argument for its overruling. Although
subsequent maternal health care advances allow for later abortions safe to the
pregnant woman, and post‑Roe neonatal care developments have advanced
viability to a point somewhat earlier, these facts go only to the scheme of
time limits on the realization of competing interests. Thus, any later
divergences from the factual premises of Roe have no bearing on the validity of
its central holding, that viability marks the earliest point at which the
State's interest in fetal *836 life
is constitutionally adequate to justify a legislative ban on nontherapeutic
abortions. The soundness or unsoundness of that constitutional judgment in no
sense turns on when viability occurs. Whenever it may occur, its attainment
will continue to serve as the critical fact. Pp. 2811‑2812.
(h) A comparison between Roe and two decisional lines of
comparable significance‑‑the line identified with Lochner v. New
York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937, and the line that began with
Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256‑‑confirms
the result reached here. Those lines were overruled‑‑by, respectively,
West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703, and
Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873‑‑on
the basis of facts, or an understanding of facts, changed from those which
furnished the claimed justifications for the earlier constitutional
resolutions. The overruling decisions were comprehensible to the Nation, and
defensible, as the Court's responses to changed circumstances. In contrast,
because neither the factual underpinnings of Roe's central holding nor this
Court's understanding of it has changed (and because no other indication of
weakened precedent has been shown), the Court could not pretend to be
reexamining Roe with any justification beyond a present doctrinal disposition
to come out differently from the Roe Court. That is an inadequate basis for
overruling a prior case. Pp. 2812‑2814.
(i) Overruling Roe's central holding would not only reach an
unjustifiable result under stare decisis principles, but would seriously weaken
the Court's capacity to exercise the judicial power and to function as the
Supreme Court of a Nation dedicated to the rule of law. Where the Court acts to
resolve the sort of unique, intensely divisive controversy reflected in Roe,
its decision has a dimension not present in normal cases and is entitled to
rare precedential force to counter the inevitable efforts to overturn it and to
thwart its implementation. Only the most convincing justification under
accepted standards of precedent could suffice to demonstrate that a later
decision overruling the first was anything but a surrender to political
pressure and an unjustified repudiation of the principle on which the Court
staked its authority in the first instance. Moreover, the country's loss of
confidence in the Judiciary **2799
would be underscored by condemnation for the Court's failure to keep faith with
those who support the decision at a cost to themselves. A decision to overrule
Roe's essential holding under the existing circumstances would address error, if
error there was, at the cost of both profound and unnecessary damage to the
Court's legitimacy and to the Nation's commitment to the rule of law. Pp. 2814‑2816.
Justice O'CONNOR, Justice KENNEDY, and Justice SOUTER concluded in
Part IV that an examination of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35
L.Ed.2d 147, and *837 subsequent
cases, reveals a number of guiding principles that should control the
assessment of the Pennsylvania statute:
(a) To protect the central right recognized by Roe while at the
same time accommodating the State's profound interest in potential life, see
id., at 162, 93 S.Ct., at 731, the undue burden standard should be employed. An
undue burden exists, and therefore a provision of law is invalid, if its
purpose or effect is to place substantial obstacles in the path of a woman
seeking an abortion before the fetus attains viability.
(b) Roe's rigid trimester framework is rejected. To promote the
State's interest in potential life throughout pregnancy, the State may take
measures to ensure that the woman's choice is informed. Measures designed to
advance this interest should not be invalidated if their purpose is to persuade
the woman to choose childbirth over abortion. These measures must not be an
undue burden on the right.
(c) As with any medical procedure, the State may enact regulations
to further the health or safety of a woman seeking an abortion, but may not
impose unnecessary health regulations that present a substantial obstacle to a
woman seeking an abortion.
(d) Adoption of the undue burden standard does not disturb Roe's
holding that regardless of whether exceptions are made for particular
circumstances, a State may not prohibit any woman from making the ultimate
decision to terminate her pregnancy before viability.
(e) Roe's holding that "subsequent to viability, the State in
promoting its interest in the potentiality of human life may, if it chooses,
regulate, and even proscribe, abortion except where it is necessary, in
appropriate medical judgment, for the preservation of the life or health of the
mother" is also reaffirmed. Id., at 164‑165, 93 S.Ct., at 732. Pp.
2816‑2822.
Justice O'CONNOR, Justice KENNEDY, and Justice SOUTER delivered
the opinion of the Court with respect to Parts V‑A and V‑C,
concluding that:
1. As construed by the Court of Appeals, § 3203's medical
emergency definition is intended to assure that compliance with the State's
abortion regulations would not in any way pose a significant threat to a
woman's life or health, and thus does not violate the essential holding of Roe,
supra, at 164, 93 S.Ct., at 732. Although the definition could be interpreted
in an unconstitutional manner, this Court defers to lower federal court
interpretations of state law unless they amount to "plain" error. P.
2822.
2. Section 3209's husband notification provision constitutes an
undue burden and is therefore invalid. A significant number of women will
likely be prevented from obtaining an abortion just as surely as if Pennsylvania
had outlawed the procedure entirely. The fact that § 3209 may affect fewer than
one percent of women seeking abortions does not save it from facial invalidity,
since the proper focus of constitutional inquiry *838 is the group for whom the law is a restriction, not the group
for whom it is irrelevant. Furthermore, it cannot be claimed that the father's
interest in the fetus' welfare is equal to the mother's protected liberty,
since it is an inescapable biological fact that state regulation with respect
to the fetus will have a far greater impact on the pregnant woman's bodily
integrity than it will on the husband.
**2800 Section 3209 embodies a view of marriage consonant with the common‑law
status of married women but repugnant to this Court's present understanding of
marriage and of the nature of the rights secured by the Constitution. See
Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 69, 96 S.Ct. 2831,
2841, 49 L.Ed.2d 788. Pp. 2826‑2831.
Justice O'CONNOR, Justice KENNEDY, and Justice SOUTER, joined by
Justice STEVENS, concluded in Part V‑E that all of the statute's
recordkeeping and reporting requirements, except that relating to spousal
notice, are constitutional. The reporting provision relating to the reasons a
married woman has not notified her husband that she intends to have an abortion
must be invalidated because it places an undue burden on a woman's choice. Pp.
2832‑ 2833.
Justice O'CONNOR, Justice KENNEDY, and Justice SOUTER concluded in
Parts V‑B and V‑D that:
1. Section 3205's informed consent provision is not an undue
burden on a woman's constitutional right to decide to terminate a pregnancy. To
the extent Akron I, 462 U.S., at 444, 103 S.Ct., at 2500, and Thornburgh, 476
U.S., at 762, 106 S.Ct., at 2179, find a constitutional violation when the government
requires, as it does here, the giving of truthful, nonmisleading information
about the nature of the abortion procedure, the attendant health risks and
those of childbirth, and the "probable gestational age" of the fetus,
those cases are inconsistent with Roe's acknowledgment of an important interest
in potential life, and are overruled. Requiring that the woman be informed of
the availability of information relating to the consequences to the fetus does
not interfere with a constitutional right of privacy between a pregnant woman
and her physician, since the doctor‑patient relation is derivative of the
woman's position, and does not underlie or override the abortion right.
Moreover, the physician's First Amendment rights not to speak are implicated
only as part of the practice of medicine, which is licensed and regulated by
the State. There is no evidence here that requiring a doctor to give the
required information would amount to a substantial obstacle to a woman seeking
an abortion. The premise behind Akron I's invalidation of a waiting period
between the provision of the information deemed necessary to informed consent
and the performance of an abortion, 462 U.S., at 450, 103 S.Ct., at 2503, is
also wrong. Although § 3205's 24‑hour waiting period may make some
abortions more expensive and less convenient, it cannot be said that it is
invalid *839 on the present record
and in the context of this facial challenge. Pp. 2822‑2826.
2. Section 3206's one‑parent consent requirement and
judicial bypass procedure are constitutional. See, e.g., Ohio v. Akron Center
for Reproductive Health, 497 U.S. 502, 510‑519, 110 S.Ct. 2972, 2978‑2983,
111 L.Ed.2d 405. P. 2832.
Justice BLACKMUN concluded that application of the strict scrutiny
standard of review required by this Court's abortion precedents results in the
invalidation of all the challenged provisions in the Pennsylvania statute,
including the reporting requirements, and therefore concurred in the judgment
that the requirement that a pregnant woman report her reasons for failing to
provide spousal notice is unconstitutional. Pp. 2847, 2850‑2851.
THE CHIEF JUSTICE, joined by Justice WHITE, Justice SCALIA, and
Justice THOMAS, concluded that:
1. Although Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147,
is not directly implicated by the Pennsylvania statute, which simply regulates
and does not prohibit abortion, a reexamination of the "fundamental
right" Roe accorded to a woman's decision to abort a fetus, with the
concomitant requirement that any state regulation of abortion survive
"strict scrutiny," id., at 154‑156, 93 S.Ct., at 727‑728,
is warranted by the confusing and uncertain state of this Court's **2801 post‑Roe decisional law.
A review of post‑Roe cases demonstrates both that they have expanded upon
Roe in imposing increasingly greater restrictions on the States, see Thornburgh
v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 783, 106
S.Ct. 2169, 2190, 90 L.Ed.2d 779 (Burger, C.J., dissenting), and that the Court
has become increasingly more divided, none of the last three such decisions
having commanded a majority opinion, see Ohio v. Akron Center for Reproductive
Health, 497 U.S. 502, 110 S.Ct. 2972, 111 L.Ed.2d 405; Hodgson v. Minnesota,
497 U.S. 417, 110 S.Ct. 2926, 111 L.Ed.2d 344; Webster v. Reproductive Health
Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410. This confusion and
uncertainty complicated the task of the Court of Appeals, which concluded that
the "undue burden" standard adopted by Justice O'CONNOR in Webster
and Hodgson governs the present cases. Pp. 2855‑2859.
2. The Roe Court reached too far when it analogized the right to
abort a fetus to the rights involved in Pierce v. Society of Sisters, 268 U.S.
510, 45 S.Ct. 571, 69 L.Ed. 1070; Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct.
625, 67 L.Ed. 1042; Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d
1010; and Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510,
and thereby deemed the right to abortion to be "fundamental." None of
these decisions endorsed an all‑encompassing "right of
privacy," as Roe, supra, 410 U.S., at 152‑153, 93 S.Ct., at 726,
claimed. Because abortion involves the purposeful termination of potential
life, the abortion decision must be recognized as sui generis, different in
kind from the rights protected in the earlier cases under the rubric of
personal or family privacy and autonomy. And the historical traditions of the
American people‑‑as evidenced by the English common *840 law and by the American abortion
statutes in existence both at the time of the Fourteenth Amendment's adoption
and Roe's issuance‑‑do not support the view that the right to
terminate one's pregnancy is "fundamental." Thus, enactments
abridging that right need not be subjected to strict scrutiny. Pp. 2859‑2860.
3. The undue burden standard adopted by the joint opinion of
Justices O'CONNOR, KENNEDY, and SOUTER has no basis in constitutional law and
will not result in the sort of simple limitation, easily applied, which the
opinion anticipates. To evaluate abortion regulations under that standard,
judges will have to make the subjective, unguided determination whether the
regulations place "substantial obstacles" in the path of a woman
seeking an abortion, undoubtedly engendering a variety of conflicting views.
The standard presents nothing more workable than the trimester framework the
joint opinion discards, and will allow the Court, under the guise of the
Constitution, to continue to impart its own preferences on the States in the
form of a complex abortion code. Pp. 2866‑2867.
4. The correct analysis is that set forth by the plurality opinion
in Webster, supra: A woman's interest in having an abortion is a form of
liberty protected by the Due Process Clause, but States may regulate abortion
procedures in ways rationally related to a legitimate state interest. P. 2867.
5. Section 3205's requirements are rationally related to the
State's legitimate interest in assuring that a woman's consent to an abortion
be fully informed. The requirement that a physician disclose certain
information about the abortion procedure and its risks and alternatives is not
a large burden and is clearly related to maternal health and the State's
interest in informed consent. In addition, a State may rationally decide that
physicians are better qualified than counselors to impart this information and
answer questions about the abortion alternatives' medical aspects. The
requirement that information be provided about the availability of paternal
child support and state‑funded alternatives is also related to the
State's informed consent interest and furthers the **2802 State's interest in preserving unborn life. That such
information might create some uncertainty and persuade some women to forgo
abortions only demonstrates that it might make a difference and is therefore
relevant to a woman's informed choice. In light of this plurality's rejection
of Roe's "fundamental right" approach to this subject, the Court's
contrary holding in Thornburgh is not controlling here. For the same reason,
this Court's previous holding invalidating a State's 24‑hour mandatory
waiting period should not be followed. The waiting period helps ensure that a
woman's decision to abort is a well‑considered one, and rationally
furthers the State's legitimate interest in maternal health and *841 in unborn life. It may delay, but
does not prohibit, abortions; and both it and the informed consent provisions
do not apply in medical emergencies. Pp. 2867‑2868.
6. The statute's parental consent provision is entirely consistent
with this Court's previous decisions involving such requirements. See, e.g.,
Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476,
103 S.Ct. 2517, 76 L.Ed.2d 733. It is reasonably designed to further the
State's important and legitimate interest "in the welfare of its young
citizens, whose immaturity, inexperience, and lack of judgment may sometimes
impair their ability to exercise their rights wisely." Hodgson, supra, 497
U.S., at 444, 110 S.Ct., at 2942. Pp. 2868‑2869.
7. Section 3214(a)'s requirement that abortion facilities file a
report on each abortion is constitutional because it rationally furthers the
State's legitimate interests in advancing the state of medical knowledge
concerning maternal health and prenatal life, in gathering statistical
information with respect to patients, and in ensuring compliance with other
provisions of the Act, while keeping the reports completely confidential.
Public disclosure of other reports made by facilities receiving public funds‑‑those
identifying the facilities and any parent, subsidiary, or affiliated
organizations, § 3207(b), and those revealing the total number of abortions
performed, broken down by trimester, § 3214(f)‑‑are rationally
related to the State's legitimate interest in informing taxpayers as to who is
benefiting from public funds and what services the funds are supporting; and
records relating to the expenditure of public funds are generally available to
the public under Pennsylvania law. P. 2872.
Justice SCALIA, joined by THE CHIEF JUSTICE, Justice WHITE, and
Justice THOMAS, concluded that a woman's decision to abort her unborn child is
not a constitutionally protected "liberty" because (1) the Constitution
says absolutely nothing about it, and (2) the long‑standing traditions of
American society have permitted it to be legally proscribed. See, e.g., Ohio v.
Akron Center for Reproductive Health, 497 U.S. 502, 520, 110 S.Ct. 2972, 2984,
111 L.Ed.2d 405 (SCALIA, J., concurring). The Pennsylvania statute should be
upheld in its entirety under the rational basis test. Pp. 2873‑2874.
O'CONNOR, KENNEDY, and SOUTER, JJ., announced the judgment of the
Court and delivered the opinion of the Court with respect to Parts I, II, III,
V‑A, V‑C, and VI, in which BLACKMUN and STEVENS, JJ., joined, an
opinion with respect to Part V‑E, in which STEVENS, J., joined, and an
opinion with respect to Parts IV, V‑B, and V‑D. STEVENS, J., filed
an opinion concurring in part and dissenting in part, post, p. 2838. BLACKMUN,
J., filed an opinion concurring in part, concurring in the judgment in part,
and dissenting in part, post, p. 2843. REHNQUIST, C.J., filed an opinion
concurring in the judgment in part and dissenting in part, in which *842 WHITE, SCALIA, and THOMAS, JJ.,
joined, post, p. 2855. SCALIA, J., filed an opinion concurring in the judgment
in part and dissenting in part, in which REHNQUIST, **2803 C.J., and WHITE and THOMAS, JJ., joined, post, p. 2873.
Kathryn Kolbert argued the cause for petitioners in No. 91‑744
and respondents in No. 91‑902. With her on the briefs were Janet
Benshoof, Lynn M. Paltrow, Rachael N. Pine, Steven R. Shapiro, John A. Powell,
Linda J. Wharton, and Carol E. Tracy.
Ernest D. Preate, Jr., Attorney General of Pennsylvania, argued
the cause for respondents in No. 91‑744 and petitioners in No. 91‑902.
With him on the brief were John G. Knorr III, Chief Deputy Attorney General,
and Kate L. Mershimer, Senior Deputy Attorney General.
Solicitor General Starr argued the cause for the United States as
amicus curiae in support of respondents in No. 91‑744 and petitioners in
No. 91‑902. With him on the brief were Assistant Attorney General Gerson,
Paul J. Larkin, Jr., Thomas G. Hungar, and Alfred R. Mollin.
[FN<<dagger>>]
<<dagger>> Briefs of amici curiae were filed for the
State of New York et al. by Robert Abrams, Attorney General of New York, Jerry
Boone, Solicitor General, Mary Ellen Burns, Chief Assistant Attorney General,
and Sanford M. Cohen, Donna I. Dennis, Marjorie Fujiki, and Shelley B. Mayer,
Assistant Attorneys General, and John McKernan, Governor of Maine, and Michael
E. Carpenter, Attorney General, Richard Blumenthal, Attorney General of
Connecticut, Charles M. Oberly III, Attorney General of Delaware, Warren Price
III, Attorney General of Hawaii, Roland W. Burris, Attorney General of
Illinois, Bonnie J. Campbell, Attorney General of Iowa, J. Joseph Curran, Jr.,
Attorney General of Maryland, Scott Harshbarger, Attorney General of
Massachusetts, Frankie Sue Del Papa, Attorney General of Nevada, Robert J. Del
Tufo, Attorney General of New Jersey, Tom Udall, Attorney General of New
Mexico, Lacy H. Thornburg, Attorney General of North Carolina, James E. O'Neil,
Attorney General of Rhode Island, Dan Morales, Attorney General of Texas, Jeffrey
L. Amestoy, Attorney General of Vermont, and John Payton, Corporation Counsel
of District of Columbia; for the State of Utah by R. Paul Van Dam, Attorney
General, and Mary Anne Q. Wood, Special Assistant Attorney General; for the
City of New York et al. by O. Peter Sherwood, Conrad Harper, Janice Goodman,
Leonard J. Koerner, Lorna Bade Goodman, Gail Rubin, and Julie Mertus; for 178
Organizations by Pamela S. Karlan and Sarah Weddington; for Agudath Israel of
America by David Zwiebel; for the Alan Guttmacher Institute et al. by Colleen
K. Connell and Dorothy B. Zimbrakos; for the American Academy of Medical Ethics
by Joseph W. Dellapenna; for the American Association of Profile Obstetricians
and Gynecologists et al. by William Bentley Ball, Philip J. Murren, and Maura
K. Quinlan; for the American College of Obstetricians and Gynecologists et al.
by Carter G. Phillips, Ann E. Allen, Laurie R. Rockett, Joel I. Klein, Nadine
Taub, and Sarah C. Carey; for the American Psychological Association by David W.
Ogden; for Texas Black Americans for Life by Lawrence J. Joyce and Craig H.
Greenwood; for Catholics United for Life et al. by Thomas A. Glessner, Charles
E. Rice, and Michael J. Laird; for the Elliot Institute for Social Sciences
Research by Stephen R. Kaufmann; for Feminists for Life of America et al. by
Keith A. Fournier, John G. Stepanovich, Christine Smith Torre, Theodore H.
Amshoff, Jr., and Mary Dice Grenen; for Focus on the Family et al. by Stephen
H. Galebach, Gregory J. Granitto, Stephen W. Reed, David L. Llewellyn, Jr.,
Benjamin W. Bull, and Leonard J. Pranschke; for the Knights of Columbia by Carl
A. Anderson; for the Life Issues Institute by James Bopp, Jr., and Richard E.
Coleson; for the NAACP Legal Defense and Educational Fund, Inc., et al. by
Julius L. Chambers, Ronald L. Ellis, and Alice L. Brown; for the National Legal
Foundation by Robert K. Skolrood; for National Right to Life, Inc., by Messrs.
Bopp and Coleson, Robert A. Destro, and A. Eric Johnston; for the Pennsylvania
Coalition Against Domestic Violence et al. by Phyllis Gelman; for the
Rutherford Institute etal. by Thomas W. Strahan, John W. Whitehead, Mr.
Johnston, Stephen E. Hurst, Joseph Secola, Thomas S. Neuberger, J. Brian
Heller, Amy Dougherty, Stanley R. Jones, David Melton, Robert R. Melnick,
William Bonner, W. Charles Bundren, and James Knicely; for the Southern Center
for Law & Ethics by Tony G. Miller; for the United States Catholic
Conference et al. by Mark E. Chopko, Phillip H. Harris, Michael K. Whitehead,
and Forest D. Montgomery; for University Faculty for Life by Clarke D. Forsythe
and Victor G. Rosenblum; for Certain American State Legislators by Pual
Benjamin Linton; for 19 Arizona Legislators by Ronald D. Maines; for
Representative Henry J. Hyde et al. by Albert P. Blaustein and Kevin J. Todd;
for Representative Don Edwards et al. by Walter Dellinger and Lloyd N. Cutler;
and for 250 American Historians by Sylvia A. Law.
For U.S. Supreme Court Briefs See:
1992 WL 551419 (Pet.Brief)
1992 WL 551420 (Reply.Brief)
1992 WL 551421 (Resp.Brief)
For Transcript of Oral Argument See:
1992 WL 691955 (U.S.Oral.Arg.)
*843 Justice O'CONNOR, Justice
KENNEDY, and Justice SOUTER announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I, II, III, V‑A, *844 V‑C, and VI, an opinion
with respect to Part V‑ E, in which Justice STEVENS joins, and an opinion
with respect to Parts IV, V‑ B, and V‑D.
I
Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years
after our holding that the Constitution protects a woman's right to terminate
her pregnancy in its early stages, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35
L.Ed.2d 147 (1973), that definition of liberty is still questioned. Joining the
respondents as amicus curiae, the United States, as it has done in five other
cases in the last decade, again asks us to overrule Roe. See Brief for
Respondents 104‑117; Brief for United States as Amicus Curiae 8.
At issue in these cases are five provisions of the Pennsylvania
Abortion Control Act of 1982, as amended in 1988 and 1989. 18 Pa. Cons.Stat. §§
3203‑3220 (1990). Relevant portions of the Act are set forth in the
Appendix. Infra, at 2833. The Act requires that a woman seeking an abortion
give her informed consent prior to the abortion procedure, and specifies that
she be provided with certain information at least 24 hours before the abortion
is performed. § 3205. For a minor to obtain an abortion, the Act requires the
informed consent of one of her parents, but provides for a judicial bypass
option if the minor does not wish to or cannot obtain a parent's consent. §
3206. Another provision of the Act requires that, unless certain exceptions
apply, a married woman seeking an abortion must sign a statement indicating
that she has notified her husband of her intended abortion. § 3209. The Act
exempts compliance with these three requirements in the event of a
"medical emergency," which is defined in § 3203 of the Act. See §§
3203, 3205(a), 3206(a), 3209(c). In addition to the above provisions regulating
the performance of abortions, the Act imposes certain reporting requirements on
facilities that provide abortion services. §§ 3207(b), 3214(a), 3214(f).
*845 Before any of these
provisions took effect, the petitioners, who are five abortion clinics and one
physician representing himself as well as a class of physicians who provide
abortion services, brought this suit seeking declaratory and injunctive relief.
Each provision was challenged as unconstitutional on its face. The District
Court entered a preliminary injunction against the enforcement of the
regulations, and, after a 3‑day bench trial, held all the provisions at
issue here unconstitutional, entering a permanent injunction against
Pennsylvania's enforcement of them. 744 F.Supp. 1323 (ED Pa.1990). The Court of
Appeals for the Third Circuit affirmed in part and reversed in part, upholding
all of the regulations except for the husband notification requirement. 947
F.2d 682 (1991). We granted certiorari. 502 U.S. 1056, 112 S.Ct. 931, 117 L.Ed.2d
104 (1992).
The Court of Appeals found it necessary to follow an elaborate
course of reasoning even to identify the first premise to use to determine
whether the statute enacted by Pennsylvania meets constitutional standards. See
947 F.2d, at 687‑698. And at oral argument in this Court, the attorney
for the parties challenging the statute took the position that none of the
enactments can be upheld without overruling Roe v. Wade. Tr. of Oral Arg. 5‑6.
We disagree with that analysis; but we acknowledge that our decisions after Roe
cast doubt upon the meaning and reach of its holding. Further, THE CHIEF
JUSTICE admits that he would overrule the central **2804 holding of Roe and adopt the rational relationship test as
the sole criterion of constitutionality. See post, at 2855, 2867. State and
federal courts as well as legislatures throughout the Union must have guidance
as they seek to address this subject in conformance with the Constitution.
Given these premises, we find it imperative to review once more the principles
that define the rights of the woman and the legitimate authority of the State
respecting the termination of pregnancies by abortion procedures.
After considering the fundamental constitutional questions
resolved by Roe, principles of institutional integrity, *846 and the rule of stare decisis, we are led to conclude this:
the essential holding of Roe v. Wade should be retained and once again
reaffirmed.
[1][2][3] It must be stated at the outset and with clarity that
Roe's essential holding, the holding we reaffirm, has three parts. First is a
recognition of the right of the woman to choose to have an abortion before
viability and to obtain it without undue interference from the State. Before
viability, the State's interests are not strong enough to support a prohibition
of abortion or the imposition of a substantial obstacle to the woman's
effective right to elect the procedure. Second is a confirmation of the State's
power to restrict abortions after fetal viability, if the law contains exceptions
for pregnancies which endanger the woman's life or health. And third is the
principle that the State has legitimate interests from the outset of the
pregnancy in protecting the health of the woman and the life of the fetus that
may become a child. These principles do not contradict one another; and we
adhere to each.
II
Constitutional protection of the woman's decision to terminate her
pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It
declares that no State shall "deprive any person of life, liberty, or
property, without due process of law." The controlling word in the cases
before us is "liberty." Although a literal reading of the Clause
might suggest that it governs only the procedures by which a State may deprive persons
of liberty, for at least 105 years, since Mugler v. Kansas, 123 U.S. 623, 660‑661,
8 S.Ct. 273, 291, 31 L.Ed. 205 (1887), the Clause has been understood to
contain a substantive component as well, one "barring certain government
actions regardless of the fairness of the procedures used to implement
them." Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665, 88
L.Ed.2d 662 (1986). As Justice Brandeis (joined by Justice Holmes) observed,
"[d]espite arguments to the contrary which had seemed to me persuasive, it
is settled that the due process clause of the Fourteenth *847 Amendment applies to matters of substantive law as well as to
matters of procedure. Thus all fundamental rights comprised within the term
liberty are protected by the Federal Constitution from invasion by the
States." Whitney v. California, 274 U.S. 357, 373, 47 S.Ct. 641, 647, 71
L.Ed. 1095 (1927) (concurring opinion). "[T]he guaranties of due process,
though having their roots in Magna Carta's 'per legem terrae' and considered as
procedural safeguards 'against executive usurpation and tyranny,' have in this
country 'become bulwarks also against arbitrary legislation.' " Poe v.
Ullman, 367 U.S. 497, 541, 81 S.Ct. 1752, 1776, 6 L.Ed.2d 989 (1961) (Harlan,
J., dissenting from dismissal on jurisdictional grounds) (quoting Hurtado v.
California, 110 U.S. 516, 532, 4 S.Ct. 111, 119, 28 L.Ed. 232 (1884)).
[4] The most familiar of the substantive liberties protected by
the Fourteenth Amendment are those recognized by the Bill of Rights. We have
held that the Due Process Clause of the Fourteenth Amendment incorporates most
of the Bill of Rights against the States. See, e.g., Duncan v. Louisiana, 391
U.S. 145, 147‑148, 88 S.Ct. 1444, 1446, 20 L.Ed.2d 491 (1968). It is
tempting, as a means of curbing the discretion of federal judges, to suppose
that liberty **2805 encompasses no
more than those rights already guaranteed to the individual against federal
interference by the express provisions of the first eight Amendments to the
Constitution. See Adamson v. California, 332 U.S. 46, 68‑92, 67 S.Ct.
1672, 1683‑1697, 91 L.Ed. 1903 (1947) (Black, J., dissenting). But of
course this Court has never accepted that view.
[5] It is also tempting, for the same reason, to suppose that the
Due Process Clause protects only those practices, defined at the most specific
level, that were protected against government interference by other rules of
law when the Fourteenth Amendment was ratified. See Michael H. v. Gerald D.,
491 U.S. 110, 127‑128, n. 6, 109 S.Ct. 2333, 2344‑2345, n. 6, 105
L.Ed.2d 91 (1989) (opinion of SCALIA, J.). But such a view would be
inconsistent with our law. It is a promise of the Constitution that there is a
realm of personal liberty which the government may not enter. We have vindicated
this principle before. Marriage is mentioned nowhere in the Bill of Rights and
interracial marriage was illegal *848
in most States in the 19th century, but the Court was no doubt correct in
finding it to be an aspect of liberty protected against state interference by
the substantive component of the Due Process Clause in Loving v. Virginia, 388
U.S. 1, 12, 87 S.Ct. 1817, 1824, 18 L.Ed.2d 1010 (1967) (relying, in an opinion
for eight Justices, on the Due Process Clause). Similar examples may be found in
Turner v. Safley, 482 U.S. 78, 94‑99, 107 S.Ct. 2254, 2265‑2267, 96
L.Ed.2d 64 (1987); in Carey v. Population Services International, 431 U.S. 678,
684‑686, 97 S.Ct. 2010, 2015‑2017, 52 L.Ed.2d 675 (1977); in
Griswold v. Connecticut, 381 U.S. 479, 481‑482, 85 S.Ct. 1678, 1680‑1681,
14 L.Ed.2d 510 (1965), as well as in the separate opinions of a majority of the
Members of the Court in that case, id., at 486‑488, 85 S.Ct., at 1682‑1683
(Goldberg, J., joined by Warren, C.J., and Brennan, J., concurring) (expressly
relying on due process), id., at 500‑ 502, 85 S.Ct., at 1690‑1691
(Harlan, J., concurring in judgment) (same), id., at 502‑507, 85 S.Ct.,
at 1691‑1694 (WHITE, J., concurring in judgment) (same); in Pierce v.
Society of Sisters, 268 U.S. 510, 534‑535, 45 S.Ct. 571, 573, 69 L.Ed.
1070 (1925); and in Meyer v. Nebraska, 262 U.S. 390, 399‑403, 43 S.Ct.
625, 627, 67 L.Ed. 1042 (1923).
[6] Neither the Bill of Rights nor the specific practices of
States at the time of the adoption of the Fourteenth Amendment marks the outer
limits of the substantive sphere of liberty which the Fourteenth Amendment
protects. See U.S. Const., Amdt. 9. As the second Justice Harlan recognized:
"[T]he full scope of
the liberty guaranteed by the Due Process Clause cannot be found in or limited
by the precise terms of the specific guarantees elsewhere provided in the
Constitution. This 'liberty' is not a series of isolated points pricked out in
terms of the taking of property; the freedom of speech, press, and religion;
the right to keep and bear arms; the freedom from unreasonable searches and
seizures; and so on. It is a rational continuum which, broadly speaking,
includes a freedom from all substantial arbitrary impositions and purposeless
restraints, ... and which also recognizes, what a reasonable and sensitive
judgment must, that certain interests require particularly careful scrutiny of
the state needs asserted to justify their abridgment." Poe v. *849 Ullman, supra, 367 U.S., at 543,
81 S.Ct., at 1777 (opinion dissenting from dismissal on jurisdictional
grounds).
Justice Harlan wrote these words in addressing an issue the full
Court did not reach in Poe v. Ullman, but the Court adopted his position four
Terms later in Griswold v. Connecticut, supra. In Griswold, we held that the
Constitution does not permit a State to forbid a married couple to use
contraceptives. That same freedom was later guaranteed, under the Equal
Protection Clause, for unmarried couples. See Eisenstadt v. Baird, 405 U.S.
438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972). Constitutional protection was
extended **2806 to the sale and
distribution of contraceptives in Carey v. Population Services International,
supra. It is settled now, as it was when the Court heard arguments in Roe v.
Wade, that the Constitution places limits on a State's right to interfere with
a person's most basic decisions about family and parenthood, see Carey v.
Population Services International, supra; Moore v. East Cleveland, 431 U.S.
494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977); Eisenstadt v. Baird, supra; Loving
v. Virginia, supra; Griswold v. Connecticut, supra; Skinner v. Oklahoma ex rel.
Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); Pierce v.
Society of Sisters, supra; Meyer v. Nebraska, supra, as well as bodily
integrity, see, e.g., Washington v. Harper, 494 U.S. 210, 221‑222, 110
S.Ct. 1028, 1036‑ 1037, 108 L.Ed.2d 178 (1990); Winston v. Lee, 470 U.S.
753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985); Rochin v. California, 342 U.S. 165,
72 S.Ct. 205, 96 L.Ed. 183 (1952).
The inescapable fact is that adjudication of substantive due
process claims may callupon the Court in interpreting the Constitution to
exercise that same capacity which by tradition courts always have exercised:
reasoned judgment. Its boundaries are not susceptible of expression as a simple
rule. That does not mean we are free to invalidate state policy choices with
which we disagree; yet neither does it permit us to shrink from the duties of
our office. As Justice Harlan observed:
"Due process has not
been reduced to any formula; its content cannot be determined by reference to
any code. *850 The best that can be
said is that through the course of this Court's decisions it has represented
the balance which our Nation, built upon postulates of respect for the liberty
of the individual, has struck between that liberty and the demands of organized
society. If the supplying of content to this Constitutional concept has of
necessity been a rational process, it certainly has not been one where judges
have felt free to roam where unguided speculation might take them. The balance
of which I speak is the balance struck by this country, having regard to what
history teaches are the traditions from which it developed as well as the
traditions from which it broke. That tradition is a living thing. A decision of
this Court which radically departs from it could not long survive, while a
decision which builds on what has survived is likely to be sound. No formula
could serve as a substitute, in this area, for judgment and restraint."
Poe v. Ullman, 367 U.S., at 542, 81 S.Ct., at 1776 (opinion dissenting from
dismissal on jurisdictional grounds).
See also Rochin v. California, supra, 342 U.S., at 171‑172,
72 S.Ct., at 209 (Frankfurter, J., writing for the Court) ("To believe
that this judicial exercise of judgment could be avoided by freezing 'due
process of law' at some fixed stage of time or thought is to suggest that the
most important aspect of constitutional adjudication is a function for
inanimate machines and not for judges").
Men and women of good conscience can disagree, and we suppose some
always shall disagree, about the profound moral and spiritual implications of
terminating a pregnancy, even in its earliest stage. Some of us as individuals
find abortion offensive to our most basic principles of morality, but that
cannot control our decision. Our obligation is to define the liberty of all,
not to mandate our own moral code. The underlying constitutional issue is
whether the State can resolve these philosophic questions in such a definitive
way that a woman lacks all choice in the matter, except perhaps *851 in those rare circumstances in
which the pregnancy is itself a danger to her own life or health, or is the
result of rape or incest.
It is conventional constitutional doctrine that where reasonable
people disagree the government can adopt one position or the other. See, e.g.,
Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963); **2807 Williamson v. Lee Optical of
Okla., Inc., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). That theorem,
however, assumes a state of affairs in which the choice does not intrude upon a
protected liberty. Thus, while some people might disagree about whether or not
the flag should be saluted, or disagree about the proposition that it may not
be defiled, we have ruled that a State may not compel or enforce one view or
the other. See West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 63 S.Ct.
1178, 87 L.Ed. 1628 (1943); Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105
L.Ed.2d 342 (1989).
Our law affords constitutional protection to personal decisions
relating to marriage, procreation, contraception, family relationships, child
rearing, and education. Carey v. Population Services International, 431 U.S.,
at 685, 97 S.Ct., at 2016. Our cases recognize "the right of the
individual, married or single, to be free from unwarranted governmental
intrusion into matters so fundamentally affecting a person as the decision
whether to bear or beget a child." Eisenstadt v. Baird, supra, 405 U.S.,
at 453, 92 S.Ct., at 1038 (emphasis in original). Our precedents "have
respected the private realm of family life which the state cannot enter."
Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645
(1944). These matters, involving the most intimate and personal choices a
person may make in a lifetime, choices central to personal dignity and
autonomy, are central to the liberty protected by the Fourteenth Amendment. At
the heart of liberty is the right to define one's own concept of existence, of
meaning, of the universe, and of the mystery of human life. Beliefs about these
matters could not define the attributes of personhood were they formed under
compulsion of the State.
*852 These considerations
begin our analysis of the woman's interest in terminating her pregnancy but
cannot end it, for this reason: though the abortion decision may originate
within the zone of conscience and belief, it is more than a philosophic
exercise. Abortion is a unique act. It is an act fraught with consequences for
others: for the woman who must live with the implications of her decision; for
the persons who perform and assist in the procedure; for the spouse, family,
and society which must confront the knowledge that these procedures exist, procedures
some deem nothing short of an act of violence against innocent human life; and,
depending on one's beliefs, for the life or potential life that is aborted.
Though abortion is conduct, it does not follow that the State is entitled to
proscribe it in all instances. That is because the liberty of the woman is at
stake in a sense unique to the human condition and so unique to the law. The
mother who carries a child to full term is subject to anxieties, to physical
constraints, to pain that only she must bear. That these sacrifices have from
the beginning of the human race been endured by woman with a pride that
ennobles her in the eyes of others and gives to the infant a bond of love
cannot alone be grounds for the State to insist she make the sacrifice. Her
suffering is too intimate and personal for the State to insist, without more,
upon its own vision of the woman's role, however dominant that vision has been
in the course of our history and our culture. The destiny of the woman must be
shaped to a large extent on her own conception of her spiritual imperatives and
her place in society.
It should be recognized, moreover, that in some critical respects
the abortion decision is of the same character as the decision to use
contraception, to which Griswold v. Connecticut, Eisenstadt v. Baird, and Carey
v. Population Services International afford constitutional protection. We have
no doubt as to the correctness of those decisions. They support *853 the reasoning in Roe relating to
the woman's liberty because they involve personal decisions concerning not only
the meaning of procreation but also human responsibility and respect for it. As
with abortion, reasonable people will have differences of opinion about these
matters. One view is based on such reverence for the wonder of **2808 creation that any pregnancy
ought to be welcomed and carried to full term no matter how difficult it will
be to provide for the child and ensure its well‑being. Another is that
the inability to provide for the nurture and care of the infant is a cruelty to
the child and an anguish to the parent. These are intimate views with infinite
variations, and their deep, personal character underlay our decisions in
Griswold, Eisenstadt, and Carey. The same concerns are present when the woman
confronts the reality that, perhaps despite her attempts to avoid it, she has
become pregnant.
It was this dimension of personal liberty that Roe sought to
protect, and its holding invoked the reasoning and the tradition of the
precedents we have discussed, granting protection to substantive liberties of
the person. Roe was, of course, an extension of those cases and, as the
decision itself indicated, the separate States could act in some degree to
further their own legitimate interests in protecting prenatal life. The extent
to which the legislatures of the States might act to outweigh the interests of
the woman in choosing to terminate her pregnancy was a subject of debate both
in Roe itself and in decisions following it.
While we appreciate the weight of the arguments made on behalf of
the State in the cases before us, arguments which in their ultimate formulation
conclude that Roe should be overruled, the reservations any of us may have in
reaffirming the central holding of Roe are outweighed by the explication of
individual liberty we have given combined with the force of stare decisis. We
turn now to that doctrine.
*854 III
A
The obligation to follow precedent begins with necessity, and a
contrary necessity marks its outer limit. With Cardozo, we recognize that no
judicial system could do society's work if it eyed each issue afresh in every
case that raised it. See B. Cardozo, The Nature of the Judicial Process 149
(1921). Indeed, the very concept of the rule of law underlying our own Constitution
requires such continuity over time that a respect for precedent is, by
definition, indispensable. See Powell, Stare Decisis and Judicial Restraint,
1991 Journal of Supreme Court History 13, 16. At the other extreme, a different
necessity would make itself felt if a prior judicial ruling should come to be
seen so clearly as error that its enforcement was for that very reason doomed.
[7][8] Even when the decision to overrule a prior case is not, as
in the rare, latter instance, virtually foreordained, it is common wisdom that
the rule of stare decisis is not an "inexorable command," and
certainly it is not such in every constitutional case, see Burnet v. Coronado
Oil & Gas Co., 285 U.S. 393, 405‑411, 52 S.Ct. 443, 446‑449, 76
L.Ed. 815 (1932) (Brandeis, J., dissenting). See also Payne v. Tennessee, 501
U.S. 808, 842, 111 S.Ct. 2597, 2617‑2618, 115 L.Ed.2d 720 (1991) (SOUTER,
J., joined by KENNEDY, J., concurring); Arizona v. Rumsey, 467 U.S. 203, 212,
104 S.Ct. 2305, 2310, 81 L.Ed.2d 164 (1984). Rather, when this Court reexamines
a prior holding, its judgment is customarily informed by a series of prudential
and pragmatic considerations designed to test the consistency of overruling a
prior decision with the ideal of the rule of law, and to gaugethe respective
costs of reaffirming and overruling a prior case. Thus, for example, we may ask
whether the rule has proven to be intolerable simply in defying practical
workability, Swift & Co. v. Wickham, 382 U.S. 111, 116, 86 S.Ct. 258, 261,
15 L.Ed.2d 194 (1965); whether the rule is subject to a kind of reliance that
would lend a special hardship to the consequences of overruling and add
inequity to the cost of repudiation, e.g., United States v. Title Ins. &
Trust *855 Co., 265 U.S. 472, 486,
44 S.Ct. 621, 623, 68 L.Ed. 1110 (1924); whether related principles of law have
so far developed as to have left the old rule no more than a remnant of
abandoned doctrine, see Patterson v. McLean Credit Union, 491 U.S. 164, 173‑174,
109 S.Ct. 2363, 2370‑2371, **2809
105 L.Ed.2d 132 (1989); or whether facts have so changed, or come to be seen so
differently, as to have robbed the old rule of significant application or
justification, e.g., Burnet, supra, 285 U.S., at 412, 52 S.Ct., at 449
(Brandeis, J., dissenting).
So in this case we may enquire whether Roe's central rule has been
found unworkable; whether the rule's limitation on state power could be removed
without serious inequity to those who have relied upon it or significant damage
to the stability of the society governed by it; whether the law's growth in the
intervening years has left Roe's central rule a doctrinal anachronism
discounted by society; and whether Roe's premises of fact have so far changed
in the ensuing two decades as to render its central holding somehow irrelevant
or unjustifiable in dealing with the issue it addressed.
1
[9] Although Roe has engendered opposition, it has in no sense
proven "unworkable," see Garcia v. San Antonio Metropolitan Transit
Authority, 469 U.S. 528, 546, 105 S.Ct. 1005, 1015, 83 L.Ed.2d 1016 (1985),
representing as it does a simple limitation beyond which a state law is
unenforceable. While Roe has, of course, required judicial assessment of state
laws affecting the exercise of the choice guaranteed against government infringement,
and although the need for such review will remain as a consequence of today's
decision, the required determinations fall within judicial competence.
2
[10] The inquiry into reliance counts the cost of a rule's
repudiation as it would fall on those who have relied reasonably on the rule's
continued application. Since the classic case for weighing reliance heavily in
favor of following the earlier rule occurs in the commercial context, see Payne
v. Tennessee, *856 supra, 501 U.S.,
at 828, 111 S.Ct., at 2609‑2610, where advance planning of great
precision is most obviously a necessity, it is no cause for surprise that some
would find no reliance worthy of consideration in support of Roe.
While neither respondents nor their amici in so many words deny
that the abortion right invites some reliance prior to its actual exercise, one
can readily imagine an argument stressing the dissimilarity of this case to one
involving property or contract. Abortion is customarily chosen as an unplanned
response to the consequence of unplanned activity or to the failure of
conventional birth control, and except on the assumption that no intercourse
would have occurred but for Roe 's holding, such behavior may appear to justify
no reliance claim. Evenif reliance could be claimed on that unrealistic
assumption, the argument might run, any reliance interest would be de minimis.
This argument would be premised on the hypothesis that reproductive planning
could take virtually immediate account of any sudden restoration of state
authority to ban abortions.
To eliminate the issue of reliance that easily, however, one would
need to limit cognizable reliance to specific instances of sexual activity. But
to do this would be simply to refuse to face the fact that for two decades of
economic and social developments, people have organized intimate relationships
and made choices that define their views of themselves and their places in
society, in reliance on the availability of abortion in the event that
contraception should fail. The ability of women to participate equally in the
economic and social life of the Nation has been facilitated by their ability to
control their reproductive lives. See, e.g., R. Petchesky, Abortion and Woman's
Choice 109, 133, n. 7 (rev. ed. 1990). The Constitution serves human values,
and while the effect of reliance on Roe cannot be exactly measured, neither can
the certain cost of overruling Roe for people who have ordered their thinking
and living around that case be dismissed.
**2810 *857 3
[11] No evolution of legal principle has left Roe 's doctrinal
footings weaker than they were in 1973. No development of constitutional law
since the case was decided has implicitly or explicitly left Roe behind as a
mere survivor of obsolete constitutional thinking.
It will be recognized, of course, that Roe stands at an
intersection of two lines of decisions, but in whichever doctrinal category one
reads the case, the result for present purposes will be the same. The Roe Court
itself placed its holding in the succession of cases most prominently
exemplified by Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d
510 (1965). See Roe, 410 U.S., at 152‑153, 93 S.Ct., at 726. When it is
so seen, Roe is clearly in no jeopardy, since subsequent constitutional
developments have neither disturbed, nor do they threaten to diminish, the
scope of recognized protection accorded to the liberty relating to intimate
relationships, the family, and decisions about whether or not to beget or bear
a child. See, e.g., Carey v. Population Services International, 431 U.S. 678,
97 S.Ct. 2010, 52 L.Ed.2d 675 (1977); Moore v. East Cleveland, 431 U.S. 494, 97
S.Ct. 1932, 52 L.Ed.2d 531 (1977).
Roe, however, may be seen not only as an exemplar of Griswold
liberty but as a rule (whether or not mistaken) of personal autonomy and bodily
integrity, with doctrinal affinity to cases recognizing limits on governmental
power to mandate medical treatment or to bar its rejection. If so, our cases
since Roe accord with Roe's view that a State's interest in the protection of
life falls short of justifying any plenary override of individual liberty
claims. Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261, 278, 110 S.Ct.
2841, 2851, 111 L.Ed.2d 224 (1990); cf., e.g., Riggins v. Nevada, 504 U.S. 127,
135, 112 S.Ct. 1810, 1815, 118 L.Ed.2d 479 (1992); Washington v. Harper, 494
U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990); see also, e.g., Rochin v.
California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952); Jacobson v.
Massachusetts, 197 U.S. 11, 24‑30, 25 S.Ct. 358, 360‑ 363, 49 L.Ed.
643 (1905).
Finally, one could classify Roe as sui generis. If the case is so
viewed, then there clearly has been no erosion of its central determination.
The original holding resting on the *858
concurrence of seven Members of the Court in 1973 was expressly affirmed by a
majority of six in 1983, see Akron v. Akron Center for Reproductive Health,
Inc., 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (Akron I ), and by a
majority of five in 1986, see Thornburgh v. American College of Obstetricians
and Gynecologists, 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779, expressing
adherence to the constitutional ruling despite legislative efforts in some
States to test its limits. More recently, in Webster v. Reproductive Health
Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989), although two of
the present authors questioned the trimester framework in a way consistent with
our judgment today, see id., at 518, 109 S.Ct., at 3056 (REHNQUIST, C.J.,
joined by WHITE and KENNEDY, JJ.); id., at 529, 109 S.Ct., at 3063 (O'CONNOR,
J., concurring in part and concurring in judgment), a majority of the Court
either decided to reaffirm or declined to address the constitutional validity
of the central holding of Roe. See Webster, 492 U.S., at 521, 109 S.Ct., at
3058 (REHNQUIST, C.J., joined by WHITE and KENNEDY, JJ.); id., at 525‑526,
109 S.Ct., at 3060‑ 3061 (O'CONNOR, J., concurring in part and concurring
in judgment); id., at 537, 553, 109 S.Ct., at 3067, 3075 (BLACKMUN, J., joined
by Brennan and Marshall, JJ., concurring in part and dissenting in part); id.,
at 561‑563, 109 S.Ct., at 3079‑3081 (STEVENS, J., concurring in
part and dissenting in part).
Nor will courts building upon Roe be likely to hand down erroneous
decisions as a consequence. Even on the assumption that the central holding of
Roe was in error, that error would go only to the strength of the state
interest in fetal protection, not to the
**2811 recognition afforded by the Constitution to the woman's liberty. The
latter aspect of the decision fits comfortably within the framework of the
Court's prior decisions, including Skinner v. Oklahoma ex rel. Williamson, 316
U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); Griswold, supra; Loving v.
Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); and Eisenstadt v.
Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), the holdings of
which are "not a series of isolated points," but mark a
"rational continuum." Poe v. Ullman, 367 U.S., at 543, 81 S.Ct., at
1777 (Harlan, J., dissenting). As we described in *859 Carey v. Population Services International, supra, the
liberty which encompasses those decisions
"includes 'the
interest in independence in making certain kinds of important decisions.' While
the outer limits of this aspect of [protected liberty] have not been marked by
the Court, it is clear that among the decisions that an individual may make
without unjustified government interference are personal decisions 'relating to
marriage, procreation, contraception, family relationships, and child rearing
and education.' " 431 U.S., at 684‑685, 97 S.Ct., at 2016 (citations
omitted).
The soundness of this prong of the Roe analysis is apparent from a
consideration of the alternative. If indeed the woman's interest in deciding
whether to bear and beget a child had not been recognized as in Roe, the State
might as readily restrict a woman's right to choose to carry a pregnancy to
term as to terminate it, to further asserted state interests in population control,
or eugenics, for example. Yet Roe has been sensibly relied upon to counterany
such suggestions. E.g., Arnold v. Board of Education of Escambia County, Ala.,
880 F.2d 305, 311 (CA11 1989) (relying upon Roe and concluding that government
officials violate the Constitution by coercing a minor to have an abortion);
Avery v. County of Burke, 660 F.2d 111, 115 (CA4 1981) (county agency inducing
teenage girl to undergo unwanted sterilization on the basis of
misrepresentation that she had sickle cell trait); see also In re Quinlan, 70
N.J. 10, 355 A.2d 647 (relying on Roe in finding a right to terminate medical
treatment, cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922, 97 S.Ct.
319, 50 L.Ed.2d 289 (1976)). In any event, because Roe's scope is confined by
the fact of its concern with postconception potential life, a concern otherwise
likely to be implicated only by some forms of contraception protected
independently under Griswold and later cases, any error in Roe is unlikely to
have serious ramifications in future cases.
*860 4
[12] We have seen how time has overtaken some of Roe's factual
assumptions: advances in maternal health care allow for abortions safe to the
mother later in pregnancy than was true in 1973, see Akron I, supra, 462 U.S.,
at 429, n. 11, 103 S.Ct., at 2492, n. 11, and advances in neonatal care have
advanced viability to a point somewhat earlier. Compare Roe, 410 U.S., at 160,
93 S.Ct., at 730, with Webster, supra, 492 U.S., at 515‑516, 109 S.Ct.,
at 3055 (opinion of REHNQUIST, C.J.); see Akron I, 462 U.S., at 457, and n. 5,
103 S.Ct., at 2489, and n. 5 (O'CONNOR, J., dissenting). But these facts go
only to the scheme of time limits on the realization of competing interests,
and the divergences from the factual premises of 1973 have no bearing on the
validity of Roe 's central holding, that viability marks the earliest point at
which the State's interest in fetal life is constitutionally adequate to
justify a legislative ban on nontherapeutic abortions. The soundness or
unsoundness of that constitutional judgment in no sense turns on whether
viability occurs at approximately 28 weeks, as was usual at the time of Roe, at
23 to 24 weeks, as it sometimes does today, or at some moment even slightly
earlier in pregnancy, as it may if fetal respiratory capacity can somehow be
enhanced in the future. Whenever it may occur, the attainment of viability may
continue to serve as the critical fact, just as it has done since Roe was **2812 decided; which is to say that
no change in Roe 's factual underpinning has left its central holding obsolete,
and none supports an argument for overruling it.
5
The sum of the precedential enquiry to this point shows Roe's
underpinnings unweakened in any way affecting its central holding. While it has
engendered disapproval, it has not been unworkable. An entire generation has
come of age free to assume Roe 's concept of liberty in defining the capacity
of women to act in society, and to make reproductive decisions; no erosion of
principle going to liberty or personal autonomy has left Roe 's central holding
a doctrinal remnant; *861 Roe
portends no developments at odds with other precedent for the analysis of
personal liberty; and no changes of fact have rendered viability more or less
appropriate as the point at which the balance of interests tips. Within the
bounds of normal stare decisis analysis, then, and subject to the
considerations on which it customarily turns, the stronger argument is for
affirming Roe 's central holding, with whatever degree of personal reluctance
any of us may have, not for overruling it.
B
[13] In a less significant case, stare decisis analysis could, and
would, stop at the point we have reached. But the sustained and widespread
debate Roe has provoked calls for some comparison between that case and others
of comparable dimension that have responded to national controversies and taken
on the impress of the controversies addressed. Only two such decisional lines
from the past century present themselves for examination, and in each instance
the result reached by the Court accorded with the principles we apply today.
The first example is that line of cases identified with Lochner v.
New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905), which imposed
substantive limitations on legislation limiting economic autonomy in favor of
health and welfare regulation, adopting, in Justice Holmes's view, the theory
of laissez‑ faire. Id., at 75, 25 S.Ct., at 546 (dissenting opinion). The
Lochner decisions were exemplified by Adkins v. Children's Hospital of District
of Columbia, 261 U.S. 525, 43 S.Ct. 394, 67 L.Ed. 785 (1923), in which this
Court held it to be an infringement of constitutionally protected liberty of
contract to require the employers of adult women to satisfy minimum wage standards.
Fourteen years later, West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct.
578, 81 L.Ed. 703 (1937), signaled the demise of Lochner by overruling Adkins.
In the meantime, the Depression had come and, with it, the lesson that seemed
unmistakable to most people by 1937, that the interpretation of contractual
freedom protected in Adkins rested on fundamentally *862 false factual assumptions about the capacity of a relatively
unregulated market to satisfy minimal levels of human welfare. See West Coast
Hotel Co., supra, at 399, 57 S.Ct., at 585. As Justice Jackson wrote of the
constitutional crisis of 1937 shortly before he came on the bench: "The
older world of laissez‑faire was recognized everywhere outside the Court
to be dead." The Struggle for Judicial Supremacy 85 (1941). The facts upon
which the earlier case had premised a constitutional resolution of social
controversy had proven to be untrue, and history's demonstration of their
untruth not only justified but required the new choice of constitutional
principle that West Coast Hotel announced. Of course, it was true that the
Court lost something by its misperception, or its lack of prescience, and the
Court‑packing crisis only magnified the loss; but the clear demonstration
that the facts of economic life were different from those previously assumed
warranted the repudiation of the old law.
The second comparison that 20th century history invites is with
the cases employing **2813 the
separate‑but‑equal rule for applying the Fourteenth Amendment's equal
protection guarantee. They began with Plessy v. Ferguson, 163 U.S. 537, 16
S.Ct. 1138, 41 L.Ed. 256 (1896), holding that legislatively mandated racial
segregation in public transportation works no denial of equal protection,
rejecting the argument that racial separation enforced by the legal machinery
of American society treats the black race as inferior. The Plessy Court
considered "the underlying fallacy of the plaintiff's argument to consist
in the assumption that the enforced separation of the two races stamps the
colored race with a badge of inferiority. If this be so, it is not by reason of
anything found in the act, but solely because the colored race chooses to put
that construction upon it." Id., at 551, 16 S.Ct., at 1143. Whether, as a
matter of historical fact, the Justices in the Plessy majority believed this or
not, see id., at 557, 562, 16 S.Ct., at 1145, 1147 (Harlan, J., dissenting),
this understanding of the implication of segregation was the stated
justification for the Court's opinion. But this understanding of *863 the facts and the rule it was
stated to justify were repudiated in Brown v. Board of Education, 347 U.S. 483,
74 S.Ct. 686, 98 L.Ed. 873 (1954) (Brown I). As one commentator observed, the
question before the Court in Brown was "whether discrimination inheres in
that segregation which is imposed by law in the twentieth century in certain
specific states in the American Union. And that question has meaning and can
find an answer only on the ground of history and of common knowledge about the
facts of life in the times and places aforesaid." Black, The Lawfulness of
the Segregation Decisions, 69 Yale L.J. 421, 427 (1960).
The Court in Brown addressed these facts of life by observing that
whatever may have been the understanding in Plessy 's time of the power of
segregation to stigmatize those who were segregated with a "badge of
inferiority," it was clear by 1954 that legally sanctioned segregation had
just such an effect, to the point that racially separate public educational facilities
were deemed inherently unequal. 347 U.S., at 494‑495, 74 S.Ct., at 691‑692.
Society's understanding of the facts upon which a constitutional ruling was
sought in 1954 was thus fundamentally different from the basis claimed for the
decision in 1896. While we think Plessy was wrong the day it was decided, see
Plessy, supra, 163 U.S., at 552‑564, 16 S.Ct., at 1143‑ 1148
(Harlan, J., dissenting), we must also recognize that the Plessy Court's
explanation for its decision was so clearly at odds with the facts apparent to
the Court in 1954 that the decision to reexamine Plessy was on this ground
alone not only justified but required.
West Coast Hotel and Brown each rested on facts, or an
understanding of facts, changed from those which furnished the claimed
justifications for the earlier constitutional resolutions. Each case was
comprehensible as the Court's response to facts that the country could
understand, or had come to understand already, but which the Court of an
earlier day, as its own declarations disclosed, had not been able to perceive.
As the decisions were thus comprehensible
*864 they were also defensible, not merely as the victories of one
doctrinal school over another by dint of numbers (victories though they were),
but as applications of constitutional principle to facts as they had not been
seen by the Court before. In constitutional adjudication as elsewhere in life,
changed circumstances may impose new obligations, and the thoughtful part of
the Nation could accept each decision to overrule a prior case as a response to
the Court's constitutional duty.
Because the cases before us present no such occasion it could be
seen as no such response. Because neither the factual underpinnings of Roe 's
central holding nor our understanding of it has changed (and because no other
indication of weakened precedent has been shown), the Court could not pretend
to be reexamining the prior law with any justification beyond a present
doctrinal disposition to come out differently from the **2814 Court of 1973. To overrule prior law for no other reason
than that would run counter to the view repeated in our cases, that a decision
to overrule should rest on some special reason over and above the belief that a
prior case was wrongly decided. See, e.g., Mitchell v. W.T. Grant Co., 416 U.S.
600, 636, 94 S.Ct. 1895, 1914, 40 L.Ed.2d 406 (1974) (Stewart, J., dissenting)
("A basic change in the law upon a ground no firmer than a change in our
membership invites the popular misconception that this institution is little
different from the two political branches of the Government. No misconception
could do more lasting injury to this Court and to the system of law which it is
our abiding mission to serve"); Mapp v. Ohio, 367 U.S. 643, 677, 81 S.Ct.
1684, 1703, 6 L.Ed.2d 1081 (1961) (Harlan, J., dissenting).
C
[14] The examination of the conditions justifying the repudiation
of Adkins by West Coast Hotel and Plessy by Brown is enough to suggest the
terrible price that would have been paid if the Court had not overruled as it
did. In the present cases, however, as our analysis to this point makes clear,
the terrible price would be paid for overruling. Our analysis *865 would not be complete, however,
without explaining why overruling Roe's central holding would not only reach an
unjustifiable result under principles of stare decisis, but would seriously
weaken the Court's capacity to exercise the judicial power and to function as
the Supreme Court of a Nation dedicated to the rule of law. To understand why
this would be so it is necessary to understand the source of this Court's
authority, the conditions necessary for its preservation, and its relationship
to the country's understanding of itself as a constitutional Republic.
The root of American governmental power is revealed most clearly
in the instance of the power conferred by the Constitution upon the Judiciary
of the United States and specifically upon this Court. As Americans of each
succeeding generation are rightly told, the Court cannot buy support for its decisions
by spending money and, except to a minor degree, it cannot independently coerce
obedience to its decrees. The Court's power lies, rather, in its legitimacy, a
product of substance and perception that shows itself in the people's
acceptance of the Judiciary as fit to determine what the Nation's law means and
to declare what it demands.
The underlying substance of this legitimacy is of course the
warrant for the Court's decisions in the Constitution and the lesser sources of
legal principle on which the Court draws. That substance is expressed in the
Court's opinions, and our contemporary understanding is such that a decision
without principled justification would be no judicial act at all. But even when
justification is furnished by apposite legal principle, something more is
required. Because not every conscientious claim of principled justification
will be accepted as such, the justification claimed must be beyond dispute. The
Court must take care to speak and act in ways that allow people to accept its
decisions on the terms the Court claims for them, as grounded truly in
principle, not as compromises with social and political pressures having, as
such, no bearing on the principled choices that the Court is *866 obliged to make. Thus, the
Court's legitimacy depends on making legally principled decisions under
circumstances in which their principled character is sufficiently plausible to
be accepted by the Nation.
The need for principled action to be perceived as such is
implicated to some degree whenever this, or any other appellate court,
overrules a prior case. This is not to say, of course, that this Court cannot
give a perfectly satisfactory explanation in most cases. People understand that
some of the Constitution's language is hard to fathom and that the Court's
Justices are sometimes able to perceive significant facts or to understand
principles of law that eluded their predecessors and that justify departures
from existing decisions. However upsetting it may be **2815 to those most directly affected when one judicially derived
rule replaces another, the country can accept some correction of error without
necessarily questioning the legitimacy of the Court.
In two circumstances, however, the Court would almost certainly
fail to receive the benefit of the doubt in overruling prior cases. There is,
first, a point beyond which frequent overruling would overtax the country's
belief in the Court's good faith. Despite the variety of reasons that may
inform and justify a decision to overrule, we cannot forget that such a
decision is usually perceived (and perceived correctly) as, at the least, a
statement that a prior decision was wrong. There is a limit to the amount of
error that can plausibly be imputed to prior Courts. If that limit should be
exceeded, disturbance of prior rulings would be taken as evidence that
justifiable reexamination of principle had given way to drives for particular
results in the short term. The legitimacy of the Court would fade with the
frequency of its vacillation.
That first circumstance can be described as hypothetical; the
second is to the point here and now. Where, in the performance of its judicial
duties, the Court decides a case in such a way as to resolve the sort of
intensely divisive controversy reflected in Roe and those rare, comparable
cases, its *867 decision has a
dimension that the resolution of the normal case does not carry. It is the
dimension present whenever the Court's interpretation of the Constitution calls
the contending sides of a national controversy to end their national division
by accepting a common mandate rooted in the Constitution.
The Court is not asked to do this very often, having thus
addressed the Nation only twice in our lifetime, in the decisions of Brown and
Roe. But when the Court does act in this way, its decision requires an equally
rare precedential force to counter the inevitable efforts to overturn it and to
thwart its implementation. Some of those efforts may be mere unprincipled
emotional reactions; others may proceed from principles worthy of profound
respect. But whatever the premises of opposition may be, only the most
convincing justification under accepted standards of precedent could suffice to
demonstrate that a later decision overruling the first was anything but a surrender
to political pressure, and an unjustified repudiation of the principle on which
the Court staked its authority in the first instance. So to overrule under fire
in the absence of the most compelling reason to reexamine a watershed decision
would subvert the Court's legitimacy beyond any serious question. Cf. Brown v.
Board of Education, 349 U.S. 294, 300, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955)
(Brown II ) ("[I]t should go without saying that the vitality of th[e]
constitutional principles [announced in Brown I,] cannot be allowed to yield
simply because of disagreement with them").
The country's loss of confidence in the Judiciary would be
underscored by an equally certain and equally reasonable condemnation for
another failing in overruling unnecessarily and under pressure. Some cost will
be paid by anyone who approves or implements a constitutional decision where it
is unpopular, or who refuses to work to undermine the decision or to force its
reversal. The price may be criticism or ostracism, or it may be violence. An
extra price will be paid by those who themselves disapprove of the decision's
results *868 when viewed outside of
constitutional terms, but who nevertheless struggle to accept it, because they
respect the rule of law. To all those who will be so tested by following, the
Court implicitly undertakes to remain steadfast, lest in the end a price be
paid for nothing. The promise of constancy, once given, binds its maker for as
long as the power to stand by the decision survives and the understanding of
the issue has not changed so fundamentally as to render the commitment
obsolete. From the obligation of this promise this Court cannot and should not
assume any exemption when duty requires it to decide a case in conformance **2816 with the Constitution. A
willing breach of it would be nothing less than a breach of faith, and no Court
that broke its faith with the people could sensibly expect credit for principle
in the decision by which it did that.
It is true that diminished legitimacy may be restored, but only
slowly. Unlike the political branches, a Court thus weakened could not seek to
regain its position with a new mandate from the voters, and even if the Court
could somehow go to the polls, the loss of its principled character could not
be retrieved by the casting of so many votes. Like the character of an
individual, the legitimacy of the Court must be earned over time. So, indeed,
must be the character of a Nation of people who aspire to live according to the
rule of law. Their belief in themselves as such a people is not readily
separable from their understanding of the Court invested with the authority to
decide their constitutional cases and speak before all others for their
constitutional ideals. If the Court's legitimacy should be undermined, then, so
would the country be in its very ability to see itself through its
constitutional ideals. The Court's concern with legitimacy is not for the sake
of the Court, but for the sake of the Nation to which it is responsible.
The Court's duty in the present cases is clear. In 1973, it
confronted the already‑divisive issue of governmental power *869 to limit personal choice to
undergo abortion, for which it provided a new resolution based on the due
process guaranteed by the Fourteenth Amendment. Whether or not a new social
consensus is developing on that issue, its divisiveness is no less today than
in 1973, and pressure to overrule the decision, like pressure to retain it, has
grown only more intense. A decision to overrule Roe's essential holding under
the existing circumstances would address error, if error there was, at the cost
of both profound and unnecessary damage to the Court's legitimacy, and to the
Nation's commitment to the rule of law. It is therefore imperative to adhere to
the essence of Roe's original decision, and we do so today.
IV
[15] From what we have said so far it follows that it is a
constitutional liberty of the woman to have some freedom to terminate her
pregnancy. We conclude that the basic decision in Roe was based on a
constitutional analysis which we cannot now repudiate. The woman's liberty is
not so unlimited, however, that from the outset the State cannot show its
concern for the life of the unborn, and at a later point in fetal development
the State's interest in life has sufficient force so that the right of the
woman to terminate the pregnancy can be restricted.
That brings us, of course, to the point where much criticism has
been directed at Roe, a criticism that always inheres when the Court draws a
specific rule from what in the Constitution is but a general standard. We
conclude, however, that the urgent claims of the woman to retain the ultimate
control over her destiny and her body, claims implicit in the meaning of
liberty, require us to perform that function. Liberty must not be extinguished
for want of a line that is clear. And it falls to us to give some real
substance to the woman's liberty to determine whether to carry her pregnancy to
full term.
[16] *870 We conclude
the line should be drawn at viability, so that before that time the woman has a
right to choose to terminate her pregnancy. We adhere to this principle for two
reasons. First, as we have said, is the doctrine of stare decisis. Any judicial
act of line‑drawing may seem somewhat arbitrary, but Roe was a reasoned
statement, elaborated with great care. We have twice reaffirmed it in the face
of great opposition. See Thornburgh v. American College of Obstetricians and
Gynecologists, 476 U.S., at 759, 106 S.Ct., at 2178; Akron I, 462 U.S., at 419‑420,
103 S.Ct., at 2487‑2488. Although we must overrule those parts of
Thornburgh and Akron I which, in our view, are inconsistent **2817 with Roe's statement that the State has a legitimate
interest in promoting the life or potential life of the unborn, see infra, at
2823‑2824, the central premise of those cases represents an unbroken
commitment by this Court to the essential holding of Roe. It is that premise
which we reaffirm today.
The second reason is that the concept of viability, as we noted in
Roe, is the time at which there is a realistic possibility of maintaining and
nourishing a life outside the womb, so that the independent existence of the
second life can in reason and all fairness be the object of state protection
that now overrides the rights of the woman. See Roe v. Wade, 410 U.S., at 163,
93 S.Ct., at 731. Consistent with other constitutional norms, legislatures may
draw lines which appear arbitrary without the necessity of offering a
justification. But courts may not. We must justify the lines we draw. And there
is no line other than viability which is more workable. To be sure, as we have
said, there may be some medical developments that affect the precise point of
viability, see supra, at 2811, but this is an imprecision within tolerable
limits given that the medical community and all those who must apply its
discoveries will continue to explore the matter. The viability line also has,
as a practical matter, an element of fairness. In some broad sense it might be
said that a woman who fails to act before viability has consented to the
State's intervention on behalf of the developing child.
*871 The woman's right to
terminate her pregnancy before viability is the most central principle of Roe
v. Wade. It is a rule of law and a component of liberty we cannot renounce.
On the other side of the equation is the interest of the State in
the protection of potential life. The Roe Court recognized the State's
"important and legitimate interest in protecting the potentiality of human
life." Roe, supra, at 162, 93 S.Ct., at 731. The weight to be given this
state interest, not the strength of the woman's interest, was the difficult
question faced in Roe. We do not need to say whether each of us, had we been
Members of the Court when the valuation of the state interest came before it as
an original matter, would have concluded, as the Roe Court did, that its weight
is insufficient to justify a ban on abortions prior to viability even when it
is subject to certain exceptions. The matter is not before us in the first
instance, and coming as it does after nearly 20 years of litigation in Roe's
wake we are satisfied that the immediate question is not the soundness of Roe's
resolution of the issue, but the precedential force that must be accorded to
its holding. And we have concluded that the essential holding of Roe should be
reaffirmed.
Yet it must be remembered that Roe v. Wade speaks with clarity in
establishing not only the woman's liberty but also the State's "important
and legitimate interest in potential life." Roe, supra, at 163, 93 S.Ct.,
at 731. That portion of the decision in Roe has been given too little
acknowledgment and implementation by the Court in its subsequent cases. Those
cases decided that any regulation touching upon the abortion decision must
survive strict scrutiny, to be sustained only if drawn in narrow terms to
further a compelling state interest. See, e.g., Akron I, supra, 462 U.S., at
427, 103 S.Ct., at 2491. Not all of the cases decided under that formulation
can be reconciled with the holding in Roe itself that the State has legitimate
interests in the health of the woman and in protecting the potential life
within her. In resolving this tension, we choose to rely upon Roe, as against
the later cases.
[17] *872 Roe
established a trimester framework to govern abortion regulations. Under this
elaborate but rigid construct, almost no regulation at all is permitted during
the first trimester of pregnancy; regulations designed to protect the woman's
health, but not to further the State's interest in potential life, are
permitted during the second trimester; and during the third trimester, when the **2818 fetus is viable, prohibitions
are permitted provided the life or health of the mother is not at stake. Roe,
supra, 410 U.S., at 163‑166, 93 S.Ct., at 731‑733. Most of our
cases since Roe have involved the application of rules derived from the
trimester framework. See, e.g., Thornburgh v. American College of Obstetricians
and Gynecologists, supra; Akron I, supra.
The trimester framework no doubt was erected to ensure that the
woman's right to choose not become so subordinate to the State's interest in
promoting fetal life that her choice exists in theory but not in fact. We do
not agree, however, that the trimester approach is necessary to accomplish this
objective. A framework of this rigidity was unnecessary and in its later
interpretation sometimes contradicted the State's permissible exercise of its
powers.
Though the woman has a right to choose to terminate or continue
her pregnancy before viability, it does not at all follow that the State is
prohibited from taking steps to ensure that this choice is thoughtful and
informed. Even in the earliest stages of pregnancy, the State may enact rules
and regulations designed to encourage her to know that there are philosophic
and social arguments of great weight that can be brought to bear in favor of
continuing the pregnancy to full term and that there are procedures and
institutions to allow adoption of unwanted children as well as a certain degree
of state assistance if the mother chooses to raise the child herself. "
'[T]he Constitution does not forbid a State or city, pursuant to democratic
processes, from expressing a preference for normal childbirth.' " Webster
v. Reproductive Health Services, 492 U.S., at 511, 109 S.Ct., at 3053 (opinion
of *873 the Court) (quoting Poelker
v. Doe, 432 U.S. 519, 521, 97 S.Ct. 2391, 2392, 53 L.Ed.2d 528 (1977)). It
follows that States are free to enact laws to provide a reasonable framework
for a woman to make a decision that has such profound and lasting meaning.
This, too, we find consistent with Roe's central premises, and indeed the
inevitable consequence of our holding that the State has an interest in
protecting the life of the unborn.
We reject the trimester framework, which we do not consider to be
part of the essential holding of Roe. See Webster v. Reproductive Health
Services, 492 U.S., at 518, 109 S.Ct., at 3056‑3057 (opinion of
REHNQUIST, C.J.); id., at 529, 109 S.Ct., at 3063 (O'CONNOR, J., concurring in
part and concurring in judgment) (describing the trimester framework as
"problematic"). Measures aimed at ensuring that a woman's choice
contemplates the consequences for the fetus do not necessarily interfere with
the right recognized in Roe, although those measures have been found to be
inconsistent with the rigid trimester framework announced in that case. A
logical reading of the central holding in Roe itself, and a necessary
reconciliation of the liberty of the woman and the interest of the State in
promoting prenatal life, require, in our view, that we abandon the trimester
framework as a rigid prohibition on all previability regulation aimed at the
protection of fetal life. The trimester framework suffers from these basic
flaws: in its formulation it misconceives the nature of the pregnant woman's
interest; and in practice it undervalues the State's interest in potential
life, as recognized in Roe.
[18] As our jurisprudence relating to all liberties save perhaps
abortion has recognized, not every law which makes a right more difficult to
exercise is, ipso facto, an infringement of that right. An example clarifies
the point. We have held that not every ballot access limitation amounts to an
infringement of the right to vote. Rather, the States are granted substantial
flexibility in establishing the framework within which voters choose the
candidates for whom they *874 wish
to vote. Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 1569, 75
L.Ed.2d 547 (1983); Norman v. Reed, 502 U.S. 279, 112 S.Ct. 698, 116 L.Ed.2d
711 (1992).
**2819 [19] The abortion right
is similar. Numerous forms of state regulation might have the incidental effect
of increasing the cost or decreasing the availability of medical care, whether for
abortion or any other medical procedure. The fact that a law which serves a
valid purpose, one not designed to strike at the right itself, has the
incidental effect of making it more difficult or more expensive to procure an
abortion cannot be enough to invalidate it. Only where state regulation imposes
an undue burden on a woman's ability to make this decision does the power of
the State reach into the heart of the liberty protected by the Due Process
Clause. See Hodgson v. Minnesota, 497 U.S. 417, 458‑459, 110 S.Ct. 2926,
2949‑2950, 111 L.Ed.2d 344 (1990) (O'CONNOR, J., concurring in part and
concurring in judgment in part); Ohio v. Akron Center for Reproductive Health,
497 U.S. 502, 519‑520, 110 S.Ct. 2972, 2983‑2984, 111 L.Ed.2d 405
(1990) (Akron II ) (opinion of KENNEDY, J.); Webster v. Reproductive Health
Services, supra, 492 U.S., at 530, 109 S.Ct., at 3063 (O'CONNOR, J., concurring
in part and concurring in judgment); Thornburgh v. American College of
Obstetricians and Gynecologists, 476 U.S., at 828, 106 S.Ct., at 2213
(O'CONNOR, J., dissenting); Simopoulos v. Virginia, 462 U.S. 506, 520, 103
S.Ct. 2532, 2540, 76 L.Ed.2d 755 (1983) (O'CONNOR, J., concurring in part and
concurring in judgment); Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft,
462 U.S. 476, 505, 103 S.Ct. 2517, 2532, 76 L.Ed.2d 733 (1983) (O'CONNOR, J.,
concurring in judgment in part and dissenting in part); Akron I, 462 U.S., at
464, 103 S.Ct., at 2510 (O'CONNOR, J., joined by WHITE and REHNQUIST, JJ.,
dissenting); Bellotti v. Baird, 428 U.S. 132, 147, 96 S.Ct. 2857, 2866, 49
L.Ed.2d 844 (1976) (Bellotti I ).
For the most part, the Court's early abortion cases adhered to
this view. In Maher v. Roe, 432 U.S. 464, 473‑474, 97 S.Ct. 2376, 2382,
53 L.Ed.2d 484 (1977), the Court explained: "Roe did not declare an
unqualified 'constitutional right to an abortion,' as the District Court seemed
to think. Rather, the right protects the woman from unduly burdensome
interference with her freedom to decide whether to terminate her
pregnancy." See *875 also Doe
v. Bolton, 410 U.S. 179, 198, 93 S.Ct. 739, 750, 35 L.Ed.2d 201 (1973) (
"[T]he interposition of the hospital abortion committee is unduly
restrictive of the patient's rights"); Bellotti I, supra, 428 U.S., at
147, 96 S.Ct., at 2866 (State may not "impose undue burdens upon a minor
capable of giving an informed consent"); Harris v. McRae, 448 U.S. 297,
314, 100 S.Ct. 2671, 2686, 65 L.Ed.2d 784 (1980) (citing Maher, supra ). Cf.
Carey v. Population Services International, 431 U.S., at 688, 97 S.Ct., at 2018
("[T]he same test must be applied to state regulations that burden an
individual's right to decide to prevent conception or terminate pregnancy by
substantially limiting access to the means of effectuating that decision as is
applied to state statutes that prohibit the decision entirely").
These considerations of the nature of the abortion right
illustrate that it is an overstatement to describe it as a right to decide
whether to have an abortion "without interference from the State."
Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 61, 96 S.Ct. 2831,
2837, 49 L.Ed.2d 788 (1976). All abortion regulations interfere to some degree
with a woman's ability to decide whether to terminate her pregnancy. It is, as a
consequence, not surprising that despite the protestations contained in the
original Roe opinion to the effect that the Court was not recognizing an
absolute right, 410 U.S., at 154‑155, 93 S.Ct., at 727, the Court's
experience applying the trimester framework has led to the striking down of
some abortion regulations which in no real sense deprived women of the ultimate
decision. Those decisions went too far because the right recognized by Roe is a
right "to be free from unwarranted governmental intrusion into matters so
fundamentally affecting a person as the decision whether to bear or beget a
child." Eisenstadt v. Baird, 405 U.S., at 453, **2820 92 S.Ct., at 1038. Not all governmental intrusion is of
necessity unwarranted; and that brings us to the other basic flaw in the
trimester framework: even in Roe's terms, in practice it undervalues the
State's interest in the potential life within the woman.
Roe v. Wade was express in its recognition of the State's
"important and legitimate interest[s] in preserving and protecting *876 the health of the pregnant woman
[and] in protecting the potentiality of human life." 410 U.S., at 162, 93
S.Ct., at 731. The trimester framework, however, does not fulfill Roe's own
promise that the State has an interest in protecting fetal life or potential
life. Roe began the contradiction by using the trimester framework to forbid
any regulation of abortion designed to advance that interest before viability.
Id., at 163, 93 S.Ct., at 731. Before viability, Roe and subsequent cases treat
all governmental attempts to influence a woman's decision on behalf of the
potential life within her as unwarranted. This treatment is, in our judgment,
incompatible with the recognition that there is a substantial state interest in
potential life throughout pregnancy. Cf. Webster, 492 U.S., at 519, 109 S.Ct.,
at 3057 (opinion of REHNQUIST, C.J.); Akron I, supra, 462 U.S., at 461, 103
S.Ct., at 2509 (O'CONNOR, J., dissenting).
[20] The very notion that the State has a substantial interest in
potential life leads to the conclusion that not all regulations must be deemed
unwarranted. Not all burdens on the right to decide whether to terminate a
pregnancy will be undue. In our view, the undue burden standard is the
appropriate means of reconciling the State's interest with the woman's
constitutionally protected liberty.
The concept of an undue burden has been utilized by the Court as
well as individual Members of the Court, including two of us, in ways that
could be considered inconsistent. See, e.g., Hodgson v. Minnesota, supra, 497
U.S., at 459‑461, 110 S.Ct., at 2949‑2950 (O'CONNOR, J., concurring
in part and concurring in judgment); Akron II, supra, 497 U.S., at 519‑520,
110 S.Ct., at 2983‑2984 (opinion of KENNEDY, J.); Thornburgh v. American
College of Obstetricians and Gynecologists, supra, 476 U.S., at 828‑829,
106 S.Ct., at 2214 (O'CONNOR, J., dissenting); Akron I, supra, 462 U.S., at 461‑466,
103 S.Ct., at 2509‑2511 (O'CONNOR, J., dissenting); Harris v. McRae,
supra, 448 U.S., at 314, 100 S.Ct., at 2686; Maher v. Roe, supra, 432 U.S., at
473, 97 S.Ct., at 2382; Beal v. Doe, 432 U.S. 438, 446, 97 S.Ct. 2366, 2371, 53
L.Ed.2d 464 (1977); Bellotti I, supra, 428 U.S., at 147, 96 S.Ct., at 2866.
Because we set forth a standard of general application to which we intend to
adhere, it is important to clarify what is meant by an undue burden.
[21] *877 A finding of
an undue burden is a shorthand for the conclusion that a state regulation has
the purpose or effect of placing a substantial obstacle in the path of a woman
seeking an abortion of a nonviable fetus. A statute with this purpose is
invalid because the means chosen by the State to further the interest in
potential life must be calculated to inform the woman's free choice, not hinder
it. And a statute which, while furthering theinterest in potential life or some
other valid state interest, has the effect of placing a substantial obstacle in
the path of a woman's choice cannot be considered a permissible means of
serving its legitimate ends. To the extent that the opinions of the Court or of
individual Justices use the undue burden standard in a manner that is
inconsistent with this analysis, we set out what in our view should be the
controlling standard. Cf. McCleskey v. Zant, 499 U.S. 467, 489, 111 S.Ct. 1454,
1467, 113 L.Ed.2d 517 (1991) (attempting "to define the doctrine of abuse
of the writ with more precision" after acknowledging tension among earlier
cases). In our considered judgment, an undue burden is an unconstitutional
burden. See Akron II, 497 U.S., at 519‑520, 110 S.Ct., at 2983‑2984
(opinion of KENNEDY, J.). Understood another way, we answer the question, left
open in previous opinions discussing the undue burden formulation, whether a
law designed **2821 to further the
State's interest in fetal life which imposes an undue burden on the woman's
decision before fetal viability could be constitutional. See, e.g., Akron I,
462 U.S., at 462‑ 463, 103 S.Ct., at 2509‑2510 (O'CONNOR, J.,
dissenting). The answer is no.
[22][23] Some guiding principles should emerge. What is at stake
is the woman's right to make the ultimate decision, not a right to be insulated
from all others in doing so. Regulations which do no more than create a
structural mechanism by which the State, or the parent or guardian of a minor,
may express profound respect for the life of the unborn are permitted, if they
are not a substantial obstacle to the woman's exercise of the right to choose.
See infra, at 2832 (addressing Pennsylvania's parental consent requirement). *878 Unless it has that effect on her
right of choice, a state measure designed to persuade her to choose childbirth
over abortion will be upheld if reasonably related to that goal. Regulations
designed to foster the health of a woman seeking an abortion are valid if they
do not constitute an undue burden.
[24][25][26][27] Even when jurists reason from shared premises,
some disagreement is inevitable. Compare Hodgson, 497 U.S., at 482‑497,
110 S.Ct., at 2961‑2969 (KENNEDY, J., concurring in judgment in part and
dissenting in part), with id., at 458‑460, 110 S.Ct., at 2949‑2950
(O'CONNOR, J., concurring in part and concurring in judgment in part). That is
to be expected in the application of any legal standard which must accommodate
life's complexity. We do not expect it to be otherwise with respect to the
undue burden standard. We give this summary:
(a) To protect the central right recognized by Roe v. Wade while
at the same time accommodating the State's profound interest in potential life,
we will employ the undue burden analysis as explained in this opinion. An undue
burden exists, and therefore a provision of law is invalid, if its purpose or
effect is to place a substantial obstacle in the path of a woman seeking an
abortion before the fetus attains viability.
(b) We reject the rigid trimester framework of Roe v. Wade. To
promote the State's profound interest in potential life, throughout pregnancy
the State may take measures to ensure that the woman's choice is informed, and
measures designed to advance this interest will not be invalidated as long as
their purpose is to persuade the woman to choose childbirth over abortion.
These measures must not be an undue burden on the right.
(c) As with any medical procedure, the State may enact regulations
to further the health or safety of a woman seeking an abortion. Unnecessary
health regulations that have the purpose or effect of presenting a substantial
obstacle to a woman seeking an abortion impose an undue burden on the right.
*879 d) Our adoption of the
undue burden analysis does not disturb the central holding of Roe v. Wade, and
we reaffirm that holding. Regardless of whether exceptions are made for
particular circumstances, a State may not prohibit any woman from making the
ultimate decision to terminate her pregnancy before viability.
(e) We also reaffirm Roe's holding that "subsequent to
viability, the State in promoting its interest in the potentiality of human
life may, if it chooses, regulate, and even proscribe, abortion except where it
is necessary, in appropriate medical judgment, for the preservation of the life
or health of the mother." Roe v. Wade, 410 U.S., at 164‑165, 93
S.Ct., at 732.
These principles control our assessment of the Pennsylvania
statute, and we now turn to the issue of the validity of its challenged
provisions.
V
The Court of Appeals applied what it believed to be the undue
burden standard and upheld each of the provisions except for the husband
notification requirement. We agree generally with this conclusion, but refine the **2822 undue burden analysis in
accordance with the principles articulated above. We now consider the separate
statutory sections at issue.
A
[28] Because it is central to the operation of various other
requirements, we begin with the statute's definition of medical emergency.
Under the statute, a medical emergency is
"[t]hat condition
which, on the basis of the physician's good faith clinical judgment, so
complicates the medical condition of a pregnant woman as to necessitate the
immediate abortion of her pregnancy to avert her death or for which a delay
will create serious risk of substantial and irreversible impairment of a major
bodily function." 18 Pa.Cons.Stat. § 3203 (1990).
*880 Petitioners argue that
the definition is too narrow, contending that it forecloses the possibility of
an immediate abortion despite some significant health risks. If the contention
were correct, we would be required to invalidate the restrictive operation of
the provision, for the essential holding of Roe forbids a State to interfere
with a woman's choice to undergo an abortion procedure if continuing her
pregnancy would constitute a threat to her health. 410 U.S., at 164, 93 S.Ct.,
at 732. See also Harris v. McRae, 448 U.S., at 316, 100 S.Ct., at 2687.
The District Court found that there were three serious conditions
which would not be covered by the statute: preeclampsia, inevitable abortion,
and premature ruptured membrane. 744 F.Supp., at 1378. Yet, as the Court of
Appeals observed, 947 F.2d, at 700‑701, it is undisputed that under some
circumstances each of these conditions could lead to an illness with
substantial and irreversible consequences. While the definition could be
interpreted in an unconstitutional manner, the Court of Appeals construed the
phrase "serious risk" to include those circumstances. Id., at 701. It
stated: "[W]e read the medical emergency exception as intended by the
Pennsylvania legislature to assure that compliance with its abortion
regulations would not in any way pose a significant threat to the life or
health of a woman." Ibid. As we said in Brockett v. Spokane Arcades, Inc.,
472 U.S. 491, 499‑500, 105 S.Ct. 2794, 2799‑2800, 86 L.Ed.2d 394
(1985): "Normally, ... we defer to the construction of a state statute
given it by the lower federal courts." Indeed, we have said that we will
defer to lower court interpretations of state law unless they amount to
"plain" error. Palmer v. Hoffman, 318 U.S. 109, 118, 63 S.Ct. 477,
482, 87 L.Ed. 645 (1943). This " 'reflect[s] our belief that district
courts and courts of appeals are better schooled in and more able to interpret
the laws of their respective States.' " Frisby v. Schultz, 487 U.S. 474,
482, 108 S.Ct. 2495, 2501, 101 L.Ed.2d 420 (1988) (citation omitted). We adhere
to that course today, and conclude that, as construed by the Court of Appeals,
the medical emergency definition imposes no undue burden on a woman's abortion
right.
*881 B
We next consider the informed consent requirement. 18 Pa.
Cons.Stat. § 3205 (1990). Except in a medical emergency, the statute requires
that at least 24 hours before performing an abortion a physician inform the
woman of the nature of the procedure, the health risks of the abortion and of
childbirth, and the "probable gestational age of the unborn child."
The physician or a qualified nonphysician must inform the woman of the
availability of printed materials published by the State describing the fetus
and providing information about medical assistance for childbirth, information
about child support from the father, and a list of agencies which provide
adoption and other services as alternatives to abortion. An abortion may not be
performed unless the woman certifies in writing that she has been informed of
the availability of these printed materials and has **2823 been provided them if she chooses to view them.
Our prior decisions establish that as with any medical procedure,
the State may require a woman to give her written informed consent to an
abortion. See Planned Parenthood of Central Mo. v. Danforth, 428 U.S., at 67,
96 S.Ct., at 2840. In this respect, the statute is unexceptional. Petitioners
challenge the statute's definition of informed consent because it includes the
provision of specific information by the doctor and the mandatory 24‑hour
waiting period. The conclusions reached by a majority of the Justices in the
separate opinions filed today and the undue burden standard adopted in this
opinion require us to overrule in part some of the Court's past decisions,
decisions driven by the trimester framework's prohibition of all previability
regulations designed to further the State's interest in fetal life.
[29] In Akron I, 462 U.S. 416, 103 S.Ct. 2481, we invalidated an
ordinance which required that a woman seeking an abortion be provided by her
physician with specific information "designed to influence the woman's
informed choice between abortion or childbirth." Id., at 444, 103 S.Ct.,
at 2500. As we later described *882
the Akron I holding in Thornburgh v. American College of Obstetricians and
Gynecologists, 476 U.S., at 762, 106 S.Ct., at 2179, there were two purported
flaws in the Akron ordinance: the information was designed to dissuade the
woman from having an abortion and the ordinance imposed "a rigid
requirement that a specific body of information be given in all cases,
irrespective of the particular needs of the patient...." Ibid.
To the extent Akron I and Thornburgh find a constitutional
violation when the government requires, as it does here, the giving of
truthful, nonmisleading information about the nature of the procedure, the
attendant health risks and those of childbirth, and the "probable
gestational age" of the fetus, those cases go too far, are inconsistent
with Roe's acknowledgment of an important interest in potential life, and are
overruled. This is clear even on the very terms of Akron I and Thornburgh.
Those decisions, along with Danforth, recognize a substantial government
interest justifying a requirement that a woman be apprised of the health risks
of abortion and childbirth. E.g., Danforth, supra, 428 U.S., at 66‑67, 96
S.Ct., at 2840. It cannot be questioned that psychological well‑being is
a facet of health. Nor can it be doubted that most women considering an
abortion would deem the impact on the fetus relevant, if not dispositive, to
the decision. In attempting to ensure that a woman apprehend the full
consequences of her decision, the State furthers the legitimate purpose of
reducing the risk that a woman may elect an abortion, only to discover later,
with devastating psychological consequences, that her decision was not fully
informed. If the information the State requires to be made available to the
woman is truthful and not misleading, the requirement may be permissible.
[30] We also see no reason why the State may not require doctors
to inform a woman seeking an abortion of the availability of materials relating
to the consequences to the fetus, even when those consequences have no direct
relation to her health. An example illustrates the point. We would think *883 it constitutional for the State
to require that in order for there to be informed consent to a kidney
transplant operation the recipient must be supplied with information about
risks to the donor as well as risks to himself or herself. A requirement that
the physician make available information similar to that mandated by the
statute here was described in Thornburgh as "an outright attempt to wedge
the Commonwealth's message discouraging abortion into the privacy of the
informed‑consent dialogue between the woman and her physician." 476
U.S., at 762, 106 S.Ct., at 2179. We conclude, however, that informed choice
need not be defined in such narrow terms that all considerations of the effect
on the fetus are made irrelevant. As
**2824 we have made clear, we depart from the holdings of Akron I and
Thornburgh to the extent that we permit a State to further its legitimate goal
of protecting the life of the unborn by enacting legislation aimed at ensuring
a decision that is mature and informed, even when in so doing the State
expresses a preference for childbirth over abortion. In short, requiring that
the woman be informed of the availability of information relating to fetal
development and the assistance available should she decide to carry the
pregnancy to full term is a reasonable measure to ensure an informed choice,
one which might cause the woman to choose childbirth over abortion. This
requirement cannot be considered a substantial obstacle to obtaining an
abortion, and, it follows, there is no undue burden.
[31] Our prior cases also suggest that the
"straitjacket," Thornburgh, supra, at 762, 106 S.Ct., at 2179
(quoting Danforth, supra, 428 U.S., at 67, n. 8, 96 S.Ct., at 2840, n. 8), of
particular information which must be given in each case interferes with a constitutional
right of privacy between a pregnant woman and her physician. As a preliminary
matter, it is worth noting that the statute now before us does not require a
physician to comply with the informed consent provisions "if he or she can
demonstrate by a preponderance of the evidence, that he or she reasonably
believed that furnishing the information would have resulted in a severely *884 adverse effect on the physical or
mental health of the patient." 18 Pa. Cons.Stat. § 3205 (1990). In this
respect, the statute does not prevent the physician from exercising his or her
medical judgment.
Whatever constitutional status the doctor‑patient relation
may have as a general matter, in the present context it is derivative of the
woman's position. The doctor‑patient relation does not underlie or
override the two more general rights under which the abortion right is
justified: the right to make family decisions and the right to physical
autonomy. On its own, the doctor‑patient relation here is entitled to the
same solicitude it receives in other contexts. Thus, a requirement that a
doctor give a woman certain information as part of obtaining her consent to an
abortion is, for constitutional purposes, no different from a requirement that
a doctor give certain specific information about any medical procedure.
[32] All that is left of petitioners' argument is an asserted
First Amendment right of a physician not to provide information about the risks
of abortion, and childbirth, in a manner mandated by the State. To be sure, the
physician's First Amendment rights not to speak are implicated, see Wooley v.
Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977), but only as part
of the practice of medicine, subject to reasonable licensing and regulation by
the State, cf. Whalen v. Roe, 429 U.S. 589, 603, 97 S.Ct. 869, 878, 51 L.Ed.2d
64 (1977). We see no constitutional infirmity in the requirement that the
physician provide the information mandated by the State here.
[33] The Pennsylvania statute also requires us to reconsider the
holding in Akron I that the State may not require that a physician, as opposed
to a qualified assistant, provide information relevant to a woman's informed
consent. 462 U.S., at 448, 103 S.Ct., at 2502. Since there is no evidence on
this record that requiring a doctor to give the information as provided by the
statute would amount in practical terms to a substantial obstacle to a woman
seeking an abortion, we conclude that it is not *885 an undue burden. Our cases reflect the fact that the Constitution
gives the States broad latitude to decide that particular functions may be
performed only by licensed professionals, even if an objective assessment might
suggest that those same tasks could be performed by others. See Williamson v.
Lee Optical of Okla., Inc., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955).
Thus, we uphold the provision **2825
as a reasonable means to ensure that the woman's consent is informed.
[34] Our analysis of Pennsylvania's 24‑hour waiting period
between the provision of the information deemed necessary to informed consent
and the performance of an abortion under the undue burden standard requires us
to reconsider the premise behind the decision in Akron I invalidating a
parallel requirement. In Akron I we said: "Nor are we convinced that the
State's legitimate concern that the woman's decision be informed is reasonably
served by requiring a 24‑hour delay as a matter of course." 462
U.S., at 450, 103 S.Ct., at 2503. We consider that conclusion to be wrong. The
idea that important decisions will be more informed and deliberate if they
follow some period of reflection does not strike us as unreasonable,
particularly where the statute directs that important information become part
of the background of the decision. The statute, as construed by the Court of
Appeals, permits avoidance of the waiting period in the event of a medical
emergency and the record evidence shows that in the vast majority of cases, a
24‑hour delay does not create any appreciable health risk. In theory, at
least, the waiting period is a reasonable measure to implement the State's
interest in protecting the life of the unborn, a measure that does not amount
to an undue burden.
Whether the mandatory 24‑hour waiting period is nonetheless
invalid because in practice it is a substantial obstacle to a woman's choice to
terminate her pregnancy is a closer question. The findings of fact by the
District Court indicate that because of the distances many women must travel to
reach an abortion provider, the practical effect will often be *886 a delay of much more than a day
because the waiting period requires that a woman seeking an abortion make at
least two visits to the doctor. The District Court also found that in many
instances this will increase the exposure of women seeking abortions to
"the harassment and hostility of anti‑abortion protestors
demonstrating outside a clinic." 744 F.Supp., at 1351. As a result, the
District Court found that for those women who have the fewest financial
resources, those who must travel long distances, and those who have difficulty
explaining their whereabouts to husbands, employers, or others, the 24‑hour
waiting period will be "particularly burdensome." Id., at 1352.
These findings are troubling in some respects, but they do not
demonstrate that the waiting period constitutes an undue burden. We do not
doubt that, as the District Court held, the waiting period has the effect of
"increasing the cost and risk of delay of abortions," id., at 1378,
but the District Court did not conclude that the increased costs and potential
delays amount to substantial obstacles. Rather, applying the trimester
framework's strict prohibition of all regulation designed to promote the
State's interest in potential life before viability, see id., at 1374, the
District Court concluded that the waiting period does not further the state
"interest in maternal health" and "infringes the physician's
discretion to exercise sound medical judgment," id., at 1378. Yet, as we
have stated, under the undue burden standard a State is permitted to enact
persuasive measures which favor childbirth over abortion, even if those
measures do not further a health interest. And while the waiting period does
limit a physician's discretion, that is not, standing alone, a reason to
invalidate it. In light of the construction given the statute's definition of
medical emergency by the Court of Appeals, and the District Court's findings,
we cannot say that the waiting period imposes a real health risk.
We also disagree with the District Court's conclusion that the
"particularly burdensome" effects of the waiting period *887 on some women require its
invalidation. A particular burden is not of necessity a substantial obstacle.
Whether a burden falls on a particular group is a distinct inquiry from whether
it is a substantial obstacle even as to the women in that group. And the
District Court did not conclude that the waiting period **2826 is such an obstacle even for the women who are most
burdened by it. Hence, on the record before us, and in the context of this
facial challenge, we are not convinced that the 24‑hour waiting period
constitutes an undue burden.
We are left with the argument that the various aspects of the
informed consent requirement are unconstitutional because they place barriers
in the way of abortion on demand. Even the broadest reading of Roe, however,
has not suggested that there is a constitutional right to abortion on demand.
See, e.g., Doe v. Bolton, 410 U.S., at 189, 93 S.Ct., at 746. Rather, the right
protected by Roe is a right to decide to terminate a pregnancy free of undue
interference by the State. Because the informed consent requirement facilitates
the wise exercise of that right, it cannot be classified as an interference
with the right Roe protects. The informed consent requirement is not an undue
burden on that right.
C
[35] Section 3209 of Pennsylvania's abortion law provides, except
in cases of medical emergency, that no physician shall perform an abortion on a
married woman without receiving a signed statement from the woman that she has
notified her spouse that she is about to undergo an abortion. The woman has the
option of providing an alternative signed statement certifying that her husband
is not the man who impregnated her; that her husband could not be located; that
the pregnancy is the result of spousal sexual assault which she has reported;
or that the woman believes that notifying her husband will cause him or someone
else to inflict bodily injury upon her. A physician who performs an abortion on *888 a married woman without receiving
the appropriate signed statement will have his or her license revoked, and is
liable to the husband for damages.
The District Court heard the testimony of numerous expert
witnesses, and made detailed findings of fact regarding the effect of this
statute. These included:
"273. The vast
majority of women consult their husbands prior to deciding to terminate their
pregnancy....
. . .
. .
"279. The 'bodily
injury' exception could not be invoked by a married woman whose husband, if
notified, would, in her reasonable belief, threaten to (a) publicize her intent
to have an abortion to family, friends or acquaintances; (b) retaliate against
her in future child custody or divorce proceedings; (c) inflict psychological
intimidation or emotional harm upon her, her children or other persons; (d)
inflict bodily harm on other persons such as children, family members or other
loved ones; or (e) use his control over finances to deprive of necessary monies
for herself or her children....
. . .
. .
"281. Studies reveal
that family violence occurs in two million families in the United States. This
figure, however, is a conservative one that substantially understates (because
battering is usually not reported until it reaches life‑threatening
proportions) the actual number of families affected by domestic violence. In
fact, researchers estimate that one of every two women will be battered at some
time in their life....
"282. A wife may not
elect to notify her husband of her intention to have an abortion for a variety
of reasons, including the husband's illness, concern about her own health, the
imminent failure of the marriage, or the husband's absolute opposition to the
abortion....
"283. The required
filing of the spousal consent form would require plaintiff‑clinics to
change their counseling *889
procedures and force women to reveal their most intimate decision‑making
on pain of criminal sanctions. The confidentiality of these revelations could
not be guaranteed, since **2827 the
woman's records are not immune from subpoena....
"284. Women of all
class levels, educational backgrounds, and racial, ethnic and religious groups
are battered....
"285. Wife‑battering
or abuse can take on many physical and psychological forms. The nature and
scope of the battering can cover a broad range of actions and be gruesome and
torturous....
"286. Married women,
victims of battering, have been killed in Pennsylvania and throughout the
United States....
"287. Battering can
often involve a substantial amount of sexual abuse, including marital rape and
sexual mutilation....
"288. In a domestic
abuse situation, it is common for the battering husband to also abuse the
children in an attempt to coerce the wife....
"289. Mere
notification of pregnancy is frequently a flashpoint for battering and violence
within the family. The number of battering incidents is high during the
pregnancy and often the worst abuse can be associated with pregnancy.... The
battering husband may deny parentage and use the pregnancy as an excuse for
abuse....
"290. Secrecy
typically shrouds abusive families. Family members are instructed not to tell
anyone, especially police or doctors, about the abuse and violence. Battering
husbands often threaten their wives or her children with further abuse if she
tells an outsider of the violence and tells her that nobody will believe her. A
battered woman, therefore, is highly unlikely to disclose *890 the violence against her for fear of retaliation by the
abuser....
"291. Even when
confronted directly by medical personnel or other helping professionals,
battered women often will not admit to the battering because they have not
admitted to themselves that they are battered....
. . .
. .
"294. A woman in a
shelter or a safe house unknown to her husband is not 'reasonably likely' to
have bodily harm inflicted upon her by her batterer, however her attempt to
notify her husband pursuant to section 3209 could accidentally disclose her
whereabouts to her husband. Her fear of future ramifications would be realistic
under the circumstances.
"295. Marital rape is
rarely discussed with others or reported to law enforcement authorities, and of
those reported only few are prosecuted....
"296. It is common
for battered women to have sexual intercourse with their husbands to avoid
being battered. While this type of coercive sexual activity would be spousal
sexual assault as defined by the Act, many women may not consider it to be so
and others would fear disbelief....
"297. The marital rape
exception to section 3209 cannot be claimed by women who are victims of
coercive sexual behavior other than penetration. The 90‑day reporting
requirement of the spousal sexual assault statute, 18 Pa.Con.Stat.Ann. §
3218(c), further narrows the class of sexually abused wives who can claim the
exception, since many of these women may be psychologically unable to discuss
or report the rape for several years after the incident....
"298. Because of the
nature of the battering relationship, battered women are unlikely to avail
themselves of the exceptions to section 3209 of the Act, regardless of *891 whether the section applies to
them." 744 F.Supp., at 1360‑1362 (footnote omitted).
These findings are supported by studies of domestic violence. The
American Medical Association (AMA) has published a summary of the recent
research in this field, which indicates that in an average 12‑month
period in this country, approximately two million women are the victims of
severe assaults by their male partners. In a 1985 survey, women reported that
nearly one of every eight husbands had assaulted their wives during **2828 the past year. The AMA views
these figures as "marked underestimates," because the nature of these
incidents discourages women from reporting them, and because surveys typically
exclude the very poor, those who do not speak English well, and women who are
homeless or in institutions or hospitals when the survey is conducted.
According to the AMA, "[r]esearchers on family violence agree that the
true incidence of partner violence is probably double the above estimates; or
four million severely assaulted women per year. Studies on prevalence suggest
that from one‑fifth to one‑third of all women will be physically
assaulted by a partner or ex‑partner during their lifetime." AMA
Council on Scientific Affairs, Violence Against Women 7 (1991) (emphasis in
original). Thus on an average day in the United States, nearly 11,000 women are
severely assaulted by their male partners. Many of these incidents involve sexual
assault. Id., at 3‑4; Shields & Hanneke, Battered Wives' Reactions to
Marital Rape, in The Dark Side of Families: Current Family Violence Research
131, 144 (D. Finkelhor, R. Gelles, G. Hataling, & M. Straus eds. 1983). In
families where wifebeating takes place, moreover, child abuse is often present
as well. Violence Against Women, supra, at 12.
Other studies fill in the rest of this troubling picture. Physical
violence is only the most visible form of abuse. Psychological abuse,
particularly forced social and economic isolation of women, is also common. L.
Walker, The Battered *892 Woman
Syndrome 27‑28 (1984). Many victims of domestic violence remain with
their abusers, perhaps because they perceive no superior alternative. Herbert,
Silver, & Ellard, Coping with an Abusive Relationship: I. How and Why do
Women Stay?, 53 J. Marriage & the Family 311 (1991). Many abused women who
find temporary refuge in shelters return to their husbands, in large part
because they have no other source of income. Aguirre, Why Do They Return?
Abused Wives in Shelters, 30 J.Nat.Assn. of Social Workers 350, 352 (1985).
Returning to one's abuser can be dangerous. Recent Federal Bureau of
Investigation statistics disclose that 8.8 percent of all homicide victims in
the United States are killed by their spouses. Mercy & Saltzman, Fatal
Violence Among Spouses in the United States, 1976‑85, 79 Am.J.Public
Health 595 (1989). Thirty percent of female homicide victims are killed by
their male partners. Domestic Violence: Terrorism in the Home, Hearing before
the Subcommittee on Children, Family, Drugs and Alcoholism of the Senate
Committee on Labor and Human Resources, 101st Cong., 2d Sess., 3 (1990).
The limited research that has been conducted with respect to
notifying one's husband about an abortion, although involving samples too small
to be representative, also supports the District Court's findings of fact. The
vast majority of women notify their male partners of their decision to obtain
an abortion. In many cases in which married women do not notify their husbands,
the pregnancy is the result of an extramarital affair. Where the husband is the
father, the primary reason women do not notify their husbands is that the
husband and wife are experiencing marital difficulties, often accompanied by
incidents of violence. Ryan & Plutzer, When Married Women Have Abortions:
Spousal Notification and Marital Interaction, 51 J. Marriage & the Family
41, 44 (1989).
This information and the District Court's findings reinforce what
common sense would suggest. In well‑*893
functioning marriages, spouses discuss important intimate decisions such as
whether to bear a child. But there are millions of women in this country who
are the victims of regular physical and psychological abuse at the hands of their
husbands. Should these women become pregnant, they may have very good reasons
for not wishing to inform their husbands of their decision to obtain an
abortion. Many may have justifiable fears of physical abuse, but may be no less
fearful of the consequences of reporting prior abuse to the Commonwealth of
Pennsylvania. Many may have a reasonable
**2829 fear that notifying their husbands will provoke further instances of
child abuse; these women are not exempt from § 3209's notification requirement.
Many may fear devastating forms of psychological abuse from their husbands,
including verbal harassment, threats of future violence, the destruction of
possessions, physical confinement to the home, the withdrawal of financial
support, or the disclosure of the abortion to family and friends. These methods
of psychological abuse may act as even more of a deterrent to notification than
the possibility of physical violence, but women who are the victims of the
abuse are not exempt from § 3209's notification requirement. And many women who
are pregnant as a result of sexual assaults by their husbands will be unable to
avail themselves of the exception for spousal sexual assault, § 3209(b)(3),
because the exception requires that the woman have notified law enforcement
authorities within 90 days of the assault, and her husband will be notified of
her report once an investigation begins, § 3128(c). If anything in this field
is certain, it is that victims of spousal sexual assault are extremely
reluctant to report the abuse to the government; hence, a great many spousal
rape victims will not be exempt from the notification requirement imposed by §
3209.
The spousal notification requirement is thus likely to prevent a
significant number of women from obtaining an abortion. It does not merely make
abortions a little more difficult or expensive to obtain; for many women, it
will impose *894 a substantial
obstacle. We must not blind ourselves to the fact that the significant number
of women who fear for their safety and the safety of their children are likely
to be deterred from procuring an abortion as surely as if the Commonwealth had
outlawed abortion in all cases.
[36] Respondents attempt to avoid the conclusion that § 3209 is
invalid by pointing out that it imposes almost no burden at all for the vast
majority of women seeking abortions. They begin by noting that only about 20
percent of the women who obtain abortions are married. They then note that of
these women about 95 percent notify their husbands of their own volition. Thus,
respondents argue, the effects of § 3209 are felt by only one percent of the
women who obtain abortions. Respondents argue that since some of these women
will be able to notify their husbands without adverse consequences or will
qualify for one of the exceptions, the statute affects fewer than one percent
of women seeking abortions. For this reason, it is asserted, the statute cannot
be invalid on its face. See Brief for Respondents 83‑86. We disagree with
respondents' basic method of analysis.
The analysis does not end with the one percent of women upon whom
the statute operates; it begins there. Legislation is measured for consistency
with the Constitution by its impact on those whose conduct it affects. For
example, we would not say that a law which requires a newspaper to print a
candidate's reply to an unfavorable editorial is valid on its face because most
newspapers would adopt the policy even absent the law. See Miami Herald
Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974).
The proper focus of constitutional inquiry is the group for whom the law is a
restriction, not the group for whom the law is irrelevant.
Respondents' argument itself gives implicit recognition to this
principle, at one of its critical points. Respondents speak of the one percent
of women seeking abortions who are married and would choose not to notify their
husbands of their plans. By selecting as the controlling class women *895 who wish to obtain abortions,
rather than all women or all pregnant women, respondents in effect concede that
§ 3209 must be judged by reference to those for whom it is an actual rather
than an irrelevant restriction. Of course, as we have said, § 3209's real
target is narrower even than the class of women seeking abortions identified by
the State: it is married women seeking abortions who do not wish to notify
their husbands of their **2830
intentions and who do not qualify for one of the statutory exceptions to the
notice requirement. The unfortunate yet persisting conditions we document above
will mean that in a large fraction of the cases in which § 3209 is relevant, it
will operate as a substantial obstacle to a woman's choice to undergo an
abortion. It is an undue burden, and therefore invalid.
This conclusion is in no way inconsistent with our decisions
upholding parental notification or consent requirements. See, e.g., Akron II,
497 U.S., at 510‑519, 110 S.Ct., at 2978‑2983; Bellotti v. Baird,
443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (Bellotti II ); Planned
Parenthood of Central Mo. v. Danforth, 428 U.S., at 74, 96 S.Ct., at 2843.
Those enactments, and our judgment that they are constitutional, are based on
the quite reasonable assumption that minors will benefit from consultation with
their parents and that children will often not realize that their parents have
their best interests at heart. We cannot adopt a parallel assumption about
adult women.
[37] We recognize that a husband has a "deep and proper
concern and interest ... in his wife's pregnancy and in the growth and
development of the fetus she is carrying." Danforth, supra, at 69, 96
S.Ct., at 2841. With regard to the children he has fathered and raised, the
Court has recognized his "cognizable and substantial" interest in
their custody. Stanley v. Illinois, 405 U.S. 645, 651‑652, 92 S.Ct. 1208,
1213, 31 L.Ed.2d 551 (1972); see also Quilloin v. Walcott, 434 U.S. 246, 98
S.Ct. 549, 54 L.Ed.2d 511 (1978); Caban v. Mohammed, 441 U.S. 380, 99 S.Ct.
1760, 60 L.Ed.2d 297 (1979); Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985,
77 L.Ed.2d 614 (1983). If these cases concerned a State's ability to require
the mother to notify the father before taking some action with respect to a
living *896 child raised by both,
therefore, it would be reasonable to conclude as a general matter that the
father's interest in the welfare of the child and the mother's interest are
equal.
Before birth, however, the issue takes on a very different cast.
It is an inescapable biological fact that state regulation with respect to the
child a woman is carrying will have a far greater impact on the mother's
liberty than on the father's. The effect of state regulation on a woman's
protected liberty is doubly deserving of scrutiny in such a case, as the State
has touched not only upon the private sphere of the family but upon the very
bodily integrity of the pregnant woman. Cf. Cruzan v. Director, Mo. Dept. of
Health, 497 U.S., at 281, 110 S.Ct., at 2852‑2853. The Court has held
that "when the wife and the husband disagree on this decision, the view of
only one of the two marriage partners can prevail. Inasmuch as it is the woman
who physically bears the child and who is the more directly and immediately
affected by the pregnancy, as between the two, the balance weighs in her favor."
Danforth, supra, 428 U.S., at 71, 96 S.Ct., at 2842. This conclusion rests upon
the basic nature of marriage and the nature of our Constitution: "[T]he
marital couple is not an independent entity with a mind and heart of its own,
but an association of two individuals each with a separate intellectual and
emotional makeup. If the right of privacy means anything, it is the right of
the individual, married or single, to be free from unwarranted governmental
intrusion into matters so fundamentally affecting a person as the decision
whether to bear or beget a child." Eisenstadt v. Baird, 405 U.S., at 453,
92 S.Ct., at 1038 (emphasis in original). The Constitution protects
individuals, men and women alike, from unjustified state interference, even when
that interference is enacted into law for the benefit of their spouses.
There was a time, not so long ago, when a different understanding
of the family and of the Constitution prevailed. In Bradwell v. State, 16 Wall.
130, 21 L.Ed. 442 (1873), three Members of this *897 Court reaffirmed the common‑law principle that "a
woman had no legal existence separate from her husband, who was regarded as her
head and **2831 representative in
the social state; and, notwithstanding some recent modifications of this civil
status, many of the special rules of law flowing from and dependent upon this
cardinal principle still exist in full force in most States." Id., at 141
(Bradley, J., joined by Swayne and Field, JJ., concurring in judgment). Only
one generation has passed since this Court observed that "woman is still
regarded as the center of home and family life," with attendant
"special responsibilities" that precluded full and independent legal
status under the Constitution. Hoyt v. Florida, 368 U.S. 57, 62, 82 S.Ct. 159,
162, 7 L.Ed.2d 118 (1961). These views, of course, are no longer consistent
with our understanding of the family, the individual, or the Constitution.
In keeping with our rejection of the common‑law
understanding of a woman's role within the family, the Court held in Danforth
that the Constitution does not permit a State to require a married woman to
obtain her husband's consent before undergoing an abortion. 428 U.S., at 69, 96
S.Ct., at 2841. The principles that guided the Court in Danforth should be our
guides today. For the great many women who are victims of abuse inflicted by
their husbands, or whose children are the victims of such abuse, a spousal
notice requirement enables the husband to wield an effective veto over his
wife's decision. Whether the prospect of notification itself deters such women
from seeking abortions, or whether the husband, through physical force or
psychological pressure or economic coercion, prevents his wife from obtaining
an abortion until it is too late, the notice requirement will often be
tantamount to the veto found unconstitutional in Danforth. The women most
affected by this law‑‑those who most reasonably fear the
consequences of notifying their husbands that they are pregnant‑‑are
in the gravest danger.
*898 The husband's interest in
the life of the child his wife is carrying does not permit the State to empower
him with this troubling degree of authority over his wife. The contrary view
leads to consequences reminiscent of the common law. A husband has no enforceable
right to require a wife to advise him before she exercises her personal
choices. If a husband's interest in the potential life of the child outweighs a
wife's liberty, the State could require a married woman to notify her husband
before she uses a postfertilization contraceptive. Perhaps next in line would
be a statute requiring pregnant married women to notify their husbands before
engaging in conduct causing risks to the fetus. After all, if the husband's
interest in the fetus' safety is a sufficient predicate for state regulation,
the State could reasonably conclude that pregnant wives should notify their
husbands before drinking alcohol or smoking. Perhaps married women should
notify their husbands before using contraceptives or before undergoing any type
of surgery that may have complications affecting the husband's interest in his
wife's reproductive organs. And if a husband's interest justifies notice in any
of these cases, one might reasonably argue that it justifies exactly what the
Danforth Court held it did not justify‑‑a requirement of the
husband's consent as well. A State may not give to a man the kind of dominion
over his wife that parents exercise over their children.
Section 3209 embodies a view of marriage consonant with the common‑
law status of married women but repugnant to our present understanding of
marriage and of the nature of the rights secured by the Constitution. Women do
not lose their constitutionally protected liberty when they marry. The
Constitution protects all individuals, male or female, married or unmarried,
from the abuse of governmental power, even where that power is employed for the
supposed benefit of a member of the individual's family. These considerations
confirm our conclusion that § 3209 is invalid.
**2832 *899 D
[38] We next consider the parental consent provision. Except in a
medical emergency, an unemancipated young woman under 18 may not obtain an
abortion unless she and one of her parents (or guardian) provides informed
consent as defined above. If neither a parent nor a guardian provides consent,
a court may authorize the performance of an abortion upon a determination that
the young woman is mature and capable of giving informed consent and has in
fact given her informed consent, or that an abortion would be in her best
interests.
We have been over most of this ground before. Our cases establish,
and we reaffirm today, that a State may require a minor seeking an abortion to
obtain the consent of a parent or guardian, provided that there is an adequate
judicial bypass procedure. See, e.g., Akron II, 497 U.S., at 510‑519, 110
S.Ct., at 2978‑2983; Hodgson, 497 U.S., at 461, 110 S.Ct., at 2950‑2951
(O'CONNOR, J., concurring in part and concurring in judgment in part); id., at
497‑501, 110 S.Ct., at 2969‑2971 (KENNEDY, J., concurring in
judgment in part and dissenting in part); Akron I, 462 U.S., at 440, 103 S.Ct.,
at 2497; Bellotti II, 443 U.S., at 643‑644, 99 S.Ct., at 3048 (plurality
opinion). Under these precedents, in our view, the one‑parent consent requirement
and judicial bypass procedure are constitutional.
The only argument made by petitioners respecting this provision
and to which our prior decisions do not speak is the contention that the
parental consent requirement is invalid because it requires informed parental
consent. For the most part, petitioners' argument is a reprise of their
argument with respect to the informed consent requirement in general, and we
reject it for the reasons given above. Indeed, some of the provisions regarding
informed consent have particular force with respect to minors: the waiting
period, for example, may provide the parent or parents of a pregnant young
woman the opportunity to consult with her in private, and to discuss the
consequences of her decision in *900
the context of the values and moral or religious principles of their family.
See Hodgson, supra, 497 U.S., at 448 ‑449,
110 S.Ct., at 2944 (opinion of STEVENS, J.).
E
[39] Under the recordkeeping and reporting requirements of the
statute, every facility which performs abortions is required to file a report
stating its name and address as well as the name and address of any related
entity, such as a controlling or subsidiary organization. In the case of state‑funded
institutions, the information becomes public.
For each abortion performed, a report must be filed identifying:
the physician (and the second physician where required); the facility; the
referring physician or agency; the woman's age; the number of prior pregnancies
and prior abortions she has had; gestational age; the type of abortion
procedure; the date of the abortion; whether there were any pre‑ existing
medical conditions which would complicate pregnancy; medical complications with
the abortion; where applicable, the basis for the determination that the
abortion was medically necessary; the weight of the aborted fetus; and whether
the woman was married, and if so, whether notice was provided or the basis for
the failure to give notice. Every abortion facility must also file quarterly
reports showing the number of abortions performed broken down by trimester. See
18 Pa.Cons.Stat. §§ 3207, 3214 (1990). In all events, the identity of each
woman who has had an abortion remains confidential.
In Danforth, 428 U.S., at 80, 96 S.Ct., at 2846, we held that
recordkeeping and reporting provisions "that are reasonably directed to
the preservation of maternal health and that properly respect a patient's
confidentiality and privacy are permissible." We think that under this
standard, all the provisions at issue here, except that relating to spousal
notice, are constitutional. Although they do not relate to the State's interest
in informing the woman's choice, they do relate to health. The collection of
information with respect to actual patients
*901 is a vital element of medical research, and so it cannot be said that
the **2833 requirements serve no
purpose other than to make abortions more difficult. Nor do we find that the
requirements impose a substantial obstacle to a woman's choice. At most they
might increase the cost of some abortions by a slight amount. While at some
point increased cost could become a substantial obstacle, there is no such
showing on the record before us.
Subsection (12) of the reporting provision requires the reporting
of, among other things, a married woman's "reason for failure to provide
notice" to her husband. § 3214(a)(12). This provision in effect requires
women, as a condition of obtaining an abortion, to provide the Commonwealth
with the precise information we have already recognized that many women have
pressing reasons not to reveal. Like the spousal notice requirement itself,
this provision places an undue burden on a woman's choice, and must be
invalidated for that reason.
VI
Our Constitution is a covenant running from the first generation
of Americans to us and then to future generations. It is a coherent succession.
Each generation must learn anew that the Constitution's written terms embody
ideas and aspirations that must survive more ages than one. We accept our
responsibility not to retreat from interpreting the full meaning of the
covenant in light of all of our precedents. We invoke it once again to define
the freedom guaranteed by the Constitution's own promise, the promise of
liberty.
* * *
The judgment in No. 91‑902 is affirmed. The judgment in No.
91‑744 is affirmed in part and reversed in part, and the case is remanded
for proceedings consistent with this opinion, including consideration of the
question of severability.
It is so ordered.
*902 APPENDIX TO OPINION of O'CONNOR, KENNEDY, and SOUTER, JJ.
Selected Provisions of the 1988 and 1989
Amendments to the
Pennsylvania
Abortion Control Act of
1982
18 PA.CONS.STAT. (1990).
"§ 3203. Definitions.
. .
. . .
" 'Medical emergency.' That condition which, on the basis of
the physician's good faith clinical judgment, so complicates the medical
condition of a pregnant woman as to necessitate the immediate abortion of her
pregnancy to avert her death or for which a delay will create serious risk of substantial
and irreversible impairment of major bodily function."
"§ 3205. Informed consent.
"(a) General rule.‑‑No abortion shall be
performed or induced except with the voluntary and informed consent of the
woman upon whom the abortion is to be performed or induced. Except in the case
of a medical emergency, consent to an abortion is voluntary and informed if and
only if:
"(1) At least 24 hours prior to the abortion, the physician
who is to perform the abortion or the referring physician has orally informed
the woman of:
"(i) The nature of
the proposed procedure or treatment and of those risks and alternatives to the
procedure or treatment that a reasonable patient would consider material to the
decision of whether or not to undergo the abortion.
"(ii) The probable
gestational age of the unborn child at the time the abortion is to be
performed.
"(iii) The medical
risks associated with carrying her child to term.
"(2) At least 24 hours prior to the abortion, the physician
who is to perform the abortion or the referring physician, or a qualified
physician assistant, health care practitioner, technician or social worker to
whom the responsibility *903 has
been delegated by **2834 either
physician, has informed the pregnant woman that:
"(i) The department
publishes printed materials which describe the unborn child and list agencies
which offer alternatives to abortion and that she has a right to review the
printed materials and that a copy will be provided to her free of charge if she
chooses to review it.
"(ii) Medical
assistance benefits may be available for prenatal care, childbirth and neonatal
care, and that more detailed information on the availability of such assistance
is contained in the printed materials published by the department.
"(iii) The father of
the unborn child is liable to assist in the support of her child, even in
instances where he has offered to pay for the abortion. In the case of rape,
this information may be omitted.
"(3) A copy of the printed materials has been provided to the
woman if she chooses to view these materials.
"(4) The pregnant woman certifies in writing, prior to the
abortion, that the information required to be provided under paragraphs (1),
(2) and (3) has been provided.
"(b) Emergency.‑‑Where a medical emergency
compels the performance of an abortion, the physician shall inform the woman,
prior to the abortion if possible, of the medical indications supporting his
judgment that an abortion is necessary to avert her death or to avert
substantial and irreversible impairment of major bodily function.
"(c) Penalty.‑‑Any physician who violates the
provisions of this section is guilty of 'unprofessional conduct' and his
license for the practice of medicine and surgery shall be subject to suspension
or revocation in accordance with procedures provided under the act of October
5, 1978 (P.L. 1109, No. 261), known as the Osteopathic Medical Practice Act,
the *904 act of December 20, 1985
(P.L. 457, No. 112), known as the Medical Practice Act of 1985, or their
successor acts. Any physician who performs or induces an abortion without first
obtaining the certification required by subsection (a)(4) or with knowledge or
reason to know that the informed consent of the woman has not been obtained
shall for the first offense be guilty of a summary offense and for each
subsequent offense be guilty of a misdemeanor of the third degree. No physician
shall be guilty of violating this section for failure to furnish the
information required by subsection (a) if he or she can demonstrate, by a
preponderance of the evidence, that he or she reasonably believed that
furnishing the information would have resulted in a severely adverse effect on
the physical or mental health of the patient.
"(d) Limitation on civil liability.‑‑Any
physician who complies with the provisions of this section may not be held
civilly liable to his patient for failure to obtain informed consent to the
abortion within the meaning of that term as defined by the act of October 15,
1975 (P.L. 390, No. 111), known as the Health Care Services Malpractice
Act."
"§ 3206. Parental consent.
"(a) General rule.‑‑Except in the case of a
medical emergency or except as provided in this section, if a pregnant woman is
less than 18 years of age and not emancipated, or if she has been adjudged an
incompetent under 20 Pa.C.S. § 5511 (relating to petition and hearing;
examination by court‑ appointed physician), a physician shall not perform
an abortion upon her unless, in the case of a woman who is less than 18 years
of age, he first obtains the informed consent both of the pregnant woman and of
one of her parents; or, in the case of a woman who is incompetent, he first
obtains the informed consent of her guardian. In deciding whether to grant such
consent, a pregnant woman's parent or guardian shall consider only their
child's or ward's best interests. In the case of a pregnancy that is the result
of incest, where *905 the father is
a party to the incestuous act, **2835
the pregnant woman need only obtain the consent of her mother.
"(b) Unavailability of parent or guardian.‑‑If
both parents have died or are otherwise unavailable to the physician within a
reasonable time and in a reasonable manner, consent of the pregnant woman's
guardian or guardians shall be sufficient. If the pregnant woman's parents are
divorced, consent of the parent having custody shall be sufficient. If neither
any parent nor a legal guardian is available to the physician within a
reasonable time and in a reasonable manner, consent of any adult person standing
in loco parentis shall be sufficient.
"(c) Petition to the court for consent.‑‑If both
of the parents or guardians of the pregnant woman refuse to consent to the
performance of an abortion or if she elects not to seek the consent of either
of her parents or of her guardian, the court of common pleas of the judicial
district in which the applicant resides or in which the abortion is sought
shall, upon petition or motion, after an appropriate hearing, authorize a
physician to perform the abortion if the court determines that the pregnant
woman is mature and capable of giving informed consent to the proposed
abortion, and has, in fact, given such consent.
"(d) Court order.‑‑If the court determines that
the pregnant woman is not mature and capable of giving informed consent or if
the pregnant woman does not claim to be mature and capable of giving informed
consent, the court shall determine whether the performance of an abortion upon
her would be in her best interests. If the court determines that the performance
of an abortion would be in the best interests of the woman, it shall authorize
a physician to perform the abortion.
"(e) Representation in proceedings.‑‑The pregnant
woman may participate in proceedings in the court on her own behalf and the
court may appoint a guardian ad litem to assist her. The court shall, however,
advise her that she has *906 a right
to court appointed counsel, and shall provide her with such counsel unless she
wishes to appear with private counsel or has knowingly and intelligently waived
representation by counsel."
"§ 3207. Abortion facilities.
. .
. . .
"(b) Reports.‑‑Within 30 days after the effective
date of this chapter, every facility at which abortions are performed shall
file, and update immediately upon any change, a report with the department,
containing the following information:
"(1) Name and address
of the facility.
"(2) Name and address
of any parent, subsidiary or affiliated organizations, corporations or
associations.
"(3) Name and address
of any parent, subsidiary or affiliated organizations, corporations or
associations having contemporaneous commonality of ownership, beneficial
interest, directorship or officership with any other facility.
The information contained in those reports which are filed pursuant
to this subsection by facilities which receive State‑appropriated funds
during the 12‑ calendar‑month period immediately preceding a
request to inspect or copy such reports shall be deemed public information.
Reports filed by facilities which do not receive State‑appropriated funds
shall only be available to law enforcement officials, the State Board of
Medicine and the State Board of Osteopathic Medicine for use in the performance
of their official duties. Any facility failing to comply with the provisions of
this subsection shall be assessed by the department a fine of $500 for each day
it is in violation hereof."
"§ 3208. Printed information.
"(a) General rule.‑‑The department shall cause to
be published in English, Spanish and Vietnamese, within 60 days after this
chapter becomes law, and shall update on an annual basis, the following easily
comprehensible printed materials:
**2836 *907 "(1) Geographically indexed materials designed to inform the
woman of public and private agencies and services available to assist a woman
through pregnancy, upon childbirth and while the child is dependent, including
adoption agencies, which shall include a comprehensive list of the agencies
available, a description of the services they offer and a description of the
manner, including telephone numbers, in which they might be contacted, or, at
the option of the department, printed materials including a toll‑free 24‑hour
a day telephone number which may be called to obtain, orally, such a list and
description of agencies in the locality of the caller and of the services they
offer. The materials shall provide information on the availability of medical
assistance benefits for prenatal care, childbirth and neonatal care, and state
that it is unlawful for any individual to coerce a woman to undergo abortion,
that any physician who performs an abortion upon a woman without obtaining her
informed consent or without according her a private medical consultation may be
liable to her for damages in a civil action at law, that the father of a child
is liable to assist in the support of that child, even in instances where the
father has offered to pay for an abortion and that the law permits adoptive
parents to pay costs of prenatal care, childbirth and neonatal care.
"(2) Materials
designed to inform the woman of the probable anatomical and physiological
characteristics of the unborn child at two‑week gestational increments
from fertilization to full term, including pictures representing the
development of unborn children at two‑week gestational increments, and
any relevant information on the possibility of the unborn child's survival;
provided that any such pictures or drawings must contain the dimensions of the
fetus and must be realistic and appropriate for the woman's stage of pregnancy.
The materials shall be objective, non‑judgmental and designed *908 to convey only accurate
scientific information about the unborn child at the various gestational ages.
The material shall also contain objective information describing the methods of
abortion procedures commonly employed, the medical risks commonly associated
with each such procedure, the possible detrimental psychological effects of
abortion and the medical risks commonly associated with each such procedure and
the medical risks commonly associated with carrying a child to term.
"(b) Format.‑‑The materials shall be printed in a
typeface large enough to be clearly legible.
"(c) Free distribution.‑‑The materials required
under this section shall be available at no cost from the department upon
request and in appropriate number to any person, facility or hospital."
"§ 3209. Spousal notice.
"(a) Spousal notice required.‑‑In order to
further the Commonwealth's interest in promoting the integrity of the marital
relationship and to protect a spouse's interests in having children within
marriage and in protecting the prenatal life of that spouse's child, no
physician shall perform an abortion on a married woman, except as provided in
subsections (b) and (c), unless he or she has received a signed statement,
which need not be notarized, from the woman upon whom the abortion is to be
performed, that she has notified her spouse that she is about to undergo an
abortion. The statement shall bear a notice that any false statement made therein
is punishable by law.
"(b) Exceptions.‑‑The statement certifying that
the notice required by subsection (a) has been given need not be furnished
where the woman provides the physician a signed statement certifying at least
one of the following:
"(1) Her spouse is
not the father of the child.
**2837 "(2) Her spouse, after diligent effort, could not be
located.
*909 "(3) The pregnancy is a result of spousal sexual assault as
described in section 3128 (relating to spousal sexual assault), which has been
reported to a law enforcement agency having the requisite jurisdiction.
"(4) The woman has
reason to believe that the furnishing of notice to her spouse is likely to
result in the infliction of bodily injury upon her by her spouse or by another
individual.
Such statement need not be notarized, but shall bear a notice that
any false statements made therein are punishable by law.
"(c) Medical emergency.‑‑The requirements of
subsection (a) shall not apply in case of a medical emergency.
"(d) Forms.‑‑The department shall cause to be
published, forms which may be utilized for purposes of providing the signed
statements required by subsections (a) and (b). The department shall distribute
an adequate supply of such forms to all abortion facilities in this Commonwealth.
"(e) Penalty; civil action.‑‑Any physician who
violates the provisions of this section is guilty of 'unprofessional conduct,'
and his or her license for the practice of medicine and surgery shall be
subject to suspension or revocation in accordance with procedures provided
under the act of October 5, 1978 (P.L. 1109, No. 261), known as the Osteopathic
Medical Practice Act, the act of December 20, 1985 (P.L. 457, No. 112), known
as the Medical Practice Act of 1985, or their successor acts. In addition, any
physician who knowingly violates the provisions of this section shall be
civilly liable to the spouse who is the father of the aborted child for any
damages caused thereby and for punitive damages in the amount of $5,000, and
the court shall award a prevailing plaintiff a reasonable attorney fee as part
of costs."
"§ 3214. Reporting.
"(a) General rule.‑‑For the purpose of promotion
of maternal health and life by adding to the sum of medical and *910 public health knowledge through
the compilation of relevant data, and to promote the Commonwealth's interest in
protection of the unborn child, a report of each abortion performed shall be
made to the department on forms prescribed by it. The report forms shall not
identify the individual patient by name and shall include the following
information:
"(1) Identification
of the physician who performed the abortion, the concurring physician as
required by section 3211(c)(2) (relating to abortion on unborn child of 24 or
more weeks gestational age), the second physician as required by section
3211(c)(5) and the facility where the abortion was performed and of the
referring physician, agency or service, if any.
"(2) The county and
state in which the woman resides.
"(3) The woman's age.
"(4) The number of prior
pregnancies and prior abortions of the woman.
"(5) The gestational
age of the unborn child at the time of the abortion.
"(6) The type of
procedure performed or prescribed and the date of the abortion. "(7) Pre‑existing
medical conditions of the woman which would complicate pregnancy, if any, and
if known, any medical complication which resulted from the abortion itself.
"(8) The basis for
the medical judgment of the physician who performed the abortion that the
abortion was necessary to prevent either the death of the pregnant woman or the
substantial and irreversible impairment of a major bodily function of the
woman, where an abortion has been performed pursuant to section 3211(b)(1).
**2838 "(9) The weight of the aborted child for any abortion performed
pursuant to section 3211(b)(1).
"(10) Basis for any
medical judgment that a medical emergency existed which excused the physician
from compliance with any provision of this chapter.
*911 "(11) The information required to be reported under section
3210(a) (relating to determination of gestational age).
"(12) Whether the
abortion was performed upon a married woman and, if so, whether notice to her
spouse was given. If no notice to her spouse was given, the report shall also
indicate the reason for failure to provide notice.
. .
. . .
"(f) Report by facility.‑‑Every facility in which
an abortion is performed within this Commonwealth during any quarter year shall
file with the department a report showing the total number of abortions
performed within the hospital or other facility during that quarter year. This
report shall also show the total abortions performed in each trimester of
pregnancy. Any report shall be available for public inspection and copying only
if the facility receives State‑appropriated funds within the 12‑calendar‑month
period immediately preceding the filing of the report. These reports shall be
submitted on a form prescribed by the department which will enable a facility
to indicate whether or not it is receiving State‑appropriated funds. If
the facility indicates on the form that it is not receiving State‑appropriated
funds, the department shall regard its report as confidential unless it
receives other evidence which causes it to conclude that the facility receives
State‑appropriated funds."
Justice STEVENS, concurring in part and dissenting in part.
The portions of the Court's opinion that I have joined are more
important than those with which I disagree. I shall therefore first comment on
significant areas of agreement, and then explain the limited character of my
disagreement.
*912 I
The Court is unquestionably correct in concluding that the
doctrine of stare decisis has controlling significance in a case of this kind,
notwithstanding an individual Justice's concerns about the merits. [FN1] The
central holding of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147
(1973), has been a "part of our law" for almost two decades. Planned
Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 101, 96 S.Ct. 2831, 2855,
49 L.Ed.2d 788 (1976) (STEVENS, J., concurring in part and dissenting in part).
It was a natural sequel to the protection of individual liberty established in
Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).
See also Carey v. Population Services International, 431 U.S. 678, 687, 702, 97
S.Ct. 2010, 2017, 2025, 52 L.Ed.2d 675 (1977) (WHITE, J., concurring in part
and concurring in result). The societal costs of overruling Roe at this late
date would be enormous. Roe is an integral part of a correct understanding of
both the concept of liberty and the basic equality of men and women.
FN1. It is sometimes
useful to view the issue of stare decisis from a historical perspective. In the
last 19 years, 15 Justices have confronted the basic issue presented in Roe v.
Wade, 410 U.S. 113, 93 S.Ct. 705, 35
L.Ed.2d 147 (1973). Of those, 11 have voted as the majority does today: Chief
Justice Burger, Justices Douglas, Brennan, Stewart, Marshall, and Powell, and
Justices BLACKMUN, O'CONNOR, KENNEDY, SOUTER, and myself. Only four‑‑all
of whom happen to be on the Court today‑‑have reached the opposite
conclusion.
Stare decisis also provides a sufficient basis for my agreement
with the joint opinion's reaffirmation of Roe's postviability analysis. Specifically,
I accept the proposition that "[i]f the State is interested in protecting
fetal life after viability, it may go so far as to proscribe abortion during
that period, except **2839 when it
is necessary to preserve the life or health of the mother." 410 U.S., at
163‑164, 93 S.Ct., at 732; see ante, at 2821.
I also accept what is implicit in the Court's analysis, namely, a
reaffirmation of Roe's explanation of why the State's obligation to protect the
life or health of the mother *913
must take precedence over any duty to the unborn. The Court in Roe carefully
considered, and rejected, the State's argument "that the fetus is a
'person' within the language and meaning of the Fourteenth Amendment." 410
U.S., at 156, 93 S.Ct., at 728. After analyzing the usage of "person"
in the Constitution, the Court concluded that that word "has application
only postnatally." Id., at 157, 93 S.Ct., at 729. Commenting on the
contingent property interests of the unborn that are generally represented by
guardians ad litem, the Court noted: "Perfection of the interests
involved, again, has generally been contingent upon live birth. In short, the
unborn have never been recognized in the law as persons in the whole
sense." Id., at 162, 93 S.Ct., at 731. Accordingly, an abortion is not
"the termination of life entitled to Fourteenth Amendment
protection." Id., at 159, 93 S.Ct., at 730. From this holding, there was
no dissent, see id., at 173, 93 S.Ct., at 737; indeed, no Member of the Court
has ever questioned this fundamental proposition. Thus, as a matter of federal
constitutional law, a developing organism that is not yet a "person"
does not have what is sometimes described as a "right to life." [FN2]
This has been and, by the Court's holding today, *914 remains a fundamental premise of our constitutional law
governing reproductive autonomy.
FN2. Professor Dworkin has
made this comment on the issue:
"The suggestion that
states are free to declare a fetus a person.... assumes that a state can
curtail some persons' constitutional rights by adding new persons to the
constitutional population. The constitutional rights of one citizen are of
course very much affected by who or what else
also has constitutional rights, because the rights of others may compete or
conflict with his. So any power to increase the constitutional population by
unilateral decision would be, in effect, a power to decrease rights the
national Constitution grants to others.
"... If a state could
declare trees to be persons with a constitutional right to life, it could
prohibit publishing newspapers or books in spite of the First Amendment's
guarantee of free speech, which could not be understood as a license to
kill.... Once we understand that the suggestion we are considering has that
implication, we must reject it. If a fetus is not part of the constitutional
population, under the national constitutional arrangement, then states have no
power to overrule that national arrangement by themselves declaring that
fetuses have rights competitive with the constitutional rights of pregnant
women." Unenumerated Rights: Whether and How Roe Should be Overruled, 59
U.Chi.L.Rev. 381, 400‑401 (1992).
II
My disagreement with the joint opinion begins with its
understanding of the trimester framework established in Roe. Contrary to the
suggestion of the joint opinion, ante, at 2823, it is not a
"contradiction" to recognize that the State may have a legitimate
interest in potential human life and, at the same time, to conclude that that
interest does not justify the regulation of abortion before viability (although
other interests, such as maternal health, may). The fact that the State's
interest is legitimate does not tell us when, if ever, that interest outweighs
the pregnant woman's interest in personal liberty. It is appropriate,
therefore, to consider more carefully the nature of the interests at stake.
First, it is clear that, in order to be legitimate, the State's
interest must be secular; consistent with the First Amendment the State may not
promote a theological or sectarian interest. See Thornburgh v. American College
of Obstetricians and Gynecologists, 476 U.S. 747, 778, 106 S.Ct. 2169, 2188, 90
L.Ed.2d 779 (1986) (STEVENS, J., concurring); see generally Webster v.
Reproductive Health Services, 492 U.S. 490, 563‑572, 109 S.Ct. 3040, 3081‑3085,
106 L.Ed.2d 410 (1989) (STEVENS, J., concurring in part and dissenting in
part). **2840 Moreover, as discussed
above, the state interest in potential human life is not an interest in loco
parentis, for the fetus is not a person.
Identifying the State's interests‑‑which the States
rarely articulate with any precision‑‑makes clear that the interest
in protecting potential life is not grounded in the Constitution. It is,
instead, an indirect interest supported by both humanitarian and pragmatic
concerns. Many of our citizens believe that any abortion reflects an
unacceptable disrespect for potential human life and that the performance of
more *915 than a million abortions
each year is intolerable; many find third‑trimester abortions performed
when the fetus is approaching personhood particularly offensive. The State has
a legitimate interest in minimizing such offense. The State may also have a
broader interest in expanding the population, [FN3] believing society would
benefit from the services of additional productive citizens‑‑or
that the potential human lives might include the occasional Mozart or Curie.
These are the kinds of concerns that comprise the State's interest in potential
human life.
FN3. The state interest in
protecting potential life may be compared to the state interest in protecting
those who seek to immigrate to this country. A contemporary example is provided
by the Haitians who have risked the perils of the sea in a desperate attempt to
become "persons" protected by our laws. Humanitarian and practical
concerns would support a state policy allowing those persons unrestricted
entry; countervailing interests in population control support a policy of
limiting the entry of these potential citizens. While the state interest in
population control might be sufficient to justify strict enforcement of the
immigration laws, that interest would not be sufficient to overcome a woman's
liberty interest. Thus, a state
interest in population control could not justify a state‑imposed limit on
family size or, for that matter, state‑mandated abortions.
In counterpoise is the woman's constitutional interest in liberty.
One aspect of this liberty is a right to bodily integrity, a right to control
one's person. See, e.g., Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96
L.Ed. 183 (1952); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62
S.Ct. 1110, 86 L.Ed. 1655 (1942). This right is neutral on the question of
abortion: The Constitution would be equally offended by an absolute requirement
that all women undergo abortions as by an absolute prohibition on abortions.
"Our whole constitutional heritage rebels at the thought of giving
government the power to control men's minds." Stanley v. Georgia, 394 U.S.
557, 565, 89 S.Ct. 1243, 1248, 22 L.Ed.2d 542 (1969). The same holds true for
the power to control women's bodies.
The woman's constitutional liberty interest also involves her
freedom to decide matters of the highest privacy and the most personal nature.
Cf. Whalen v. Roe, 429 U.S. 589, *916
598‑600, 97 S.Ct. 869, 875‑877, 51 L.Ed.2d 64 (1977). A woman
considering abortion faces "a difficult choice having serious and personal
consequences of major importance to her own future‑‑perhaps to the
salvation of her own immortal soul." Thornburgh, 476 U.S., at 781, 106
S.Ct., at 2189. The authority to make such traumatic and yet empowering
decisions is an element of basic human dignity. As the joint opinion so
eloquently demonstrates, a woman's decision to terminate her pregnancy is nothing
less than a matter of conscience.
Weighing the State's interest in potential life and the woman's
liberty interest, I agree with the joint opinion that the State may " '
"expres[s] a preference for normal childbirth," ' " that the
State may take steps to ensure that a woman's choice "is thoughtful and
informed," and that "States are free to enact laws to provide a
reasonable framework for a woman to make a decision that has such profound and
lasting meaning." Ante, at 2818. Serious questions arise, however, when a
State attempts to "persuade the woman to choose childbirth over
abortion." Ante, at 2821. Decisional autonomy must limit the State's power
to inject into a woman's most personal deliberations its own views of what is
best. The State may promote its preferences by funding childbirth, by creating
and maintaining alternatives to **2841
abortion, and by espousing the virtues of family; but it must respect the
individual's freedom to make such judgments.
This theme runs throughout our decisions concerning reproductive
freedom. In general, Roe's requirement that restrictions on abortions before
viability be justified by the State's interest in maternal health has prevented
States from interjecting regulations designed to influence a woman's decision.
Thus, we have upheld regulations of abortion that are not efforts to sway or
direct a woman's choice, but rather are efforts to enhance the deliberative
quality of that decision or are neutral regulations on the health aspects of
her decision. We have, for example, upheld regulations requiring *917 written informed consent, see
Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49
L.Ed.2d 788 (1976); limited recordkeeping and reporting, see ibid.; and
pathology reports, see Planned Parenthood Assn. of Kansas City, Mo., Inc. v.
Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983); as well as
various licensing and qualification provisions, see, e.g., Roe, 410 U.S., at
150, 93 S.Ct., at 725; Simopoulos v. Virginia, 462 U.S. 506, 103 S.Ct. 2532, 76
L.Ed.2d 755 (1983). Conversely, we have consistently rejected state efforts to
prejudice a woman's choice, either by limiting the information available to
her, see Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975),
or by "requir[ing] the delivery of information designed 'to influence the
woman's informed choice between abortion or childbirth.' " Thornburgh, 476
U.S., at 760, 106 S.Ct., 2178; see also Akron v. Akron Center for Reproductive
Health, Inc., 462 U.S. 416, 442‑449, 103 S.Ct. 2481, 2499‑2502, 76
L.Ed.2d 687 (1983).
In my opinion, the principles established in this long line of
cases and the wisdom reflected in Justice Powell's opinion for the Court in
Akron (and followed by the Court just six years ago in Thornburgh ) should
govern our decision today. Under these principles, Pa.Cons.Stat. §§
3205(a)(2)(i)‑ (iii) (1990) of the Pennsylvania statute are
unconstitutional. Those sections require a physician or counselor to provide
the woman with a range of materials clearly designed to persuade her to choose
not to undergo the abortion. While the Commonwealth is free, pursuant to § 3208
of the Pennsylvania law, to produce and disseminate such material, the
Commonwealth may not inject such information into the woman's deliberations
just as she is weighing such an important choice.
Under this same analysis, §§ 3205(a)(1)(i) and (iii) of the
Pennsylvania statute are constitutional. Those sections, which require the
physician to inform a woman of the nature and risks of the abortion procedure
and the medical risks of carrying to term, are neutral requirements comparable
to those imposed in other medical procedures. Those sections indicate no effort
by the Commonwealth to influence the
*918 woman's choice in any way. If anything, such requirements enhance,
rather than skew, the woman's decisionmaking.
III
The 24‑hour waiting period required by §§ 3205(a)(1)‑(2)
of the Pennsylvania statute raises even more serious concerns. Such a
requirement arguably furthers the Commonwealth's interests in two ways, neither
of which is constitutionally permissible.
First, it may be argued that the 24‑hour delay is justified
by the mere fact that it is likely to reduce the number of abortions, thus
furthering the Commonwealth's interest in potential life. But such an argument
would justify any form of coercion that placed an obstacle in the woman's path.
The Commonwealth cannot further its interests by simply wearing down the
ability of the pregnant woman to exercise her constitutional right.
Second, it can more reasonably be argued that the 24‑hour
delay furthers the Commonwealth's interest in ensuring that the woman's
decision is informed and thoughtful. But there is no evidence that the mandated
delay benefits women or that it is necessary to enable the physician to convey
any relevant information to the patient. The mandatory delay thus appears to
rest on outmoded **2842 and
unacceptable assumptions about the decisionmaking capacity of women. While
there are well‑established and consistently maintained reasons for the
Commonwealth to view with skepticism the ability of minors to make decisions,
see Hodgson v. Minnesota, 497 U.S. 417, 449, 110 S.Ct. 2926, 2944, 111 L.Ed.2d
344 (1990), [FN4] none of those reasons applies to an *919 adult woman's decisionmaking ability. Just as we have left
behind the belief that a woman must consult her husband before undertaking
serious matters, see ante, at 2830‑2831, so we must reject the notion
that a woman is less capable of deciding matters of gravity. Cf. Reed v. Reed,
404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971).
FN4. As we noted in that
opinion, the State's "legitimate interest in protecting minor women from
their own immaturity" distinguished that case from Akron v. Akron Center
for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687
(1983), which involved "a provision that required that mature women,
capable of consenting to an abortion, wait 24 hours after giving consent before
undergoing an abortion." Hodgson, 497 U.S., at 449, n. 35, 110 S.Ct., at
2944, n. 35.
In the alternative, the delay requirement may be premised on the
belief that the decision to terminate a pregnancy is presumptively wrong. This
premise is illegitimate. Those who disagree vehemently about the legality and
morality of abortion agree about one thing: The decision to terminate a
pregnancy is profound and difficult. No person undertakes such a decision
lightly‑‑and States may not presume that a woman has failed to
reflect adequately merely because her conclusion differs from the State's
preference. A woman who has, in the privacy of her thoughts and conscience,
weighed the options and made her decision cannot be forced to reconsider all,
simply because the State believes she has come to the wrong conclusion. [FN5]
FN5. The joint opinion's
reliance on the indirect effects of the regulation of constitutionally
protected activity, see ante, at 2818‑ 2819, is misplaced; what matters
is not only the effect of a regulation but also the reason for the regulation.
As I explained in Hodgson:
"In cases involving
abortion, as in cases involving the right to travel or the right to marry, the
identification of the constitutionally protected interest is merely the
beginning of the analysis. State regulation of travel and of marriage is
obviously permissible even though a State may not categorically exclude
nonresidents from its borders, Shapiro v. Thompson, 394 U.S. 618, 631, 89 S.Ct.
1322, 1329, 22 L.Ed.2d 600 (1969), or deny prisoners the right to marry, Turner
v. Safley, 482 U.S. 78, 94‑99, 107 S.Ct. 2254, 2265‑2267, 96
L.Ed.2d 64 (1987). But the regulation of constitutionally protected decisions,
such as where a person shall reside or whom he or she shall marry, must be
predicated on legitimate state concerns other than disagreement with the choice
the individual has made. Cf. Turner v. Safley, supra; Loving v. Virginia, 388
U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d
1010 (1967). In the abortion area, a State may have no obligation to spend its
own money, or use its own facilities, to subsidize nontherapeutic abortions for
minors or adults. See, e.g., Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53
L.Ed.2d 484 (1977); cf. Webster v. Reproductive Health Services, 492 U.S. 490,
508‑511, 109 S.Ct. 3040, 3051‑3053, 106 L.Ed.2d 410 (1989); id., at
523‑524, 109 S.Ct., at 3059 (O'CONNOR, J., concurring in part and
concurring in judgment). A State's value judgment favoring childbirth over
abortion may provide adequate support for decisions involving such allocation
of public funds, but not for simply substituting a state decision for an
individual decision that a woman has a right to make for herself. Otherwise,
the interest in liberty protected by the Due Process Clause would be a nullity.
A state policy favoring childbirth over abortion is not in itself a sufficient
justification for overriding the woman's decision or for placing 'obstacles‑‑absolute
or otherwise‑‑in the pregnant woman's path to an abortion.' "
497 U.S., at 435, 110 S.Ct., at 2937.
*920 Part of the constitutional
liberty to choose is the equal dignity to which each of us is entitled. A woman
who decides to terminate her pregnancy is entitled to the same respect as a
woman who decides to carry the fetus to term. The mandatory waiting period
denies women that equal respect.
IV
In my opinion, a correct application of the "undue
burden" standard leads to the same conclusion concerning the
constitutionality of these requirements. A state‑imposed burden on the
exercise of a constitutional right is measured both by its effects and by its
character: **2843 A burden may be
"undue" either because the burden is too severe or because it lacks a
legitimate, rational justification. [FN6]
FN6. The meaning of any
legal standard can only be understood by reviewing the actual cases in which it
is applied. For that reason, I discount both Justice SCALIA's comments on past
descriptions of the standard, see post, at 2878‑2879 (opinion concurring
in judgment in part and dissenting in part), and the attempt to give it crystal
clarity in the joint opinion. The several opinions supporting the judgment in
Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965),
are less illuminating than the central holding of the case, which appears to
have passed the test of time. The future may also demonstrate that a standard
that analyzes both the severity of a regulatory burden and the legitimacy of
its justification will provide a fully adequate framework for the review of abortion legislation even if the
contours of the standard are not authoritatively articulated in any single
opinion.
The 24‑hour delay requirement fails both parts of this test.
The findings of the District Court establish the severity of *921 the burden that the 24‑
hour delay imposes on many pregnant women. Yet even in those cases in which the
delay is not especially onerous, it is, in my opinion, "undue"
because there is no evidence that such a delay serves a useful and legitimate
purpose. As indicated above, there is no legitimate reason to require a woman
who has agonized over her decision to leave the clinic or hospital and return
again another day. While a general requirement that a physician notify her
patients about the risks of a proposed medical procedure is appropriate, a
rigid requirement that all patients wait 24 hours or (what is true in practice)
much longer to evaluate the significance of information that is either common
knowledge or irrelevant is an irrational and, therefore, "undue"
burden.
The counseling provisions are similarly infirm. Whenever
government commands private citizens to speak or to listen, careful review of
the justification for that command is particularly appropriate. In these cases,
the Pennsylvania statute directs that counselors provide women seeking abortions
with information concerning alternatives to abortion, the availability of
medical assistance benefits, and the possibility of child‑support
payments. §§ 3205(a)(2)(i)‑(iii).
The statute requires that this information be given to all women seeking abortions,
including those for whom such information is clearly useless, such as those who
are married, those who have undergone the procedure in the past and are fully
aware of the options, and those who are fully convinced that abortion is their
only reasonable option. Moreover, the statute requires physicians to inform all
of their patients of "[t]he probable gestational age of the unborn
child." § 3205(a)(1)(ii). This information is of little decisional value
in most cases, because 90% of all abortions are performed during the first
trimester [FN7] when fetal age has less relevance than when the fetus nears
viability. Nor can the information *922
required by the statute be justified as relevant to any "philosophic"
or "social" argument, ante, at 2818, either favoring or disfavoring
the abortion decision in a particular case. In light of all of these facts, I
conclude that the information requirements in § 3205(a)(1)(ii) and §§
3205(a)(2)(i)‑ (iii) do not serve a useful purpose and thus constitute an
unnecessary‑‑and therefore undue‑‑burden on the woman's
constitutional liberty to decide to terminate her pregnancy.
FN7. U.S. Dept. of
Commerce, Bureau of the Census, Statistical Abstract of the United States 71 (111th ed. 1991).
Accordingly, while I disagree with Parts IV, V‑B, and V‑D
of the joint opinion, [FN8] I join the remainder of the Court's opinion.
FN8. Although I agree that
a parental‑consent requirement (with the appropriate bypass) is
constitutional, I do not join Part V‑D of the joint opinion because its
approval of Pennsylvania's informed parental‑consent requirement is based
on the reasons given in Part V‑B, with which I disagree.
Justice BLACKMUN, concurring in part, concurring in the judgment
in part, and dissenting in part.
I join Parts I, II, III, V‑A, V‑C, and VI of the joint
opinion of Justices O'CONNOR, KENNEDY, and SOUTER, ante.
**2844 Three years ago, in
Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106
L.Ed.2d 410 (1989), four Members of this Court appeared poised to "cas[t]
into darkness the hopes and visions of every woman in this country" who
had come to believe that the Constitution guaranteed her the right to
reproductive choice. Id., at 557, 109 S.Ct., at 3077 (BLACKMUN, J.,
dissenting). See id., at 499, 109 S.Ct., at 3046 (plurality opinion of
REHNQUIST, C.J., joined by WHITE and KENNEDY, JJ.); id., at 532, 109 S.Ct., at
3064 (SCALIA, J., concurring in part and concurring in judgment). All that
remained between the promise of Roe and the darkness of the plurality was a
single, flickering flame. Decisions since Webster gave little reason to hope
that this flame would cast much light. See, e.g., Ohio v. Akron Center for
Reproductive Health, 497 U.S. 502, 524, 110 S.Ct. 2972, 2984, 111 L.Ed.2d 405
(1990) (BLACKMUN, J., dissenting). But now, just when so many expected the
darkness to fall, the flame has grown bright.
*923 I do not underestimate
the significance of today's joint opinion. Yet I remain steadfast in my belief
that the right to reproductive choice is entitled to the full protection
afforded by this Court before Webster. And I fear for the darkness as four
Justices anxiously await the single vote necessary to extinguish the light.
I
Make no mistake, the joint opinion of Justices O'CONNOR, KENNEDY,
and SOUTER is an act of personal courage and constitutional principle. In
contrast to previous decisions in which Justices O'CONNOR and KENNEDY postponed
reconsideration of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147
(1973), the authors of the joint opinion today join Justice STEVENS and me in
concluding that "the essential holding of Roe v. Wade should be retained
and once again reaffirmed." Ante, at 2804. In brief, five Members of this
Court today recognize that "the Constitution protects a woman's right to
terminate her pregnancy in its early stages." Ante, at 2803.
A fervent view of individual liberty and the force of stare
decisis have led the Court to this conclusion. Ante, at 2808. Today a majority
reaffirms that the Due Process Clause of the Fourteenth Amendment establishes
"a realm of personal liberty which the government may not enter,"
ante, at 2805‑‑a realm whose outer limits cannot be determined by
interpretations of the Constitution that focus only on the specific practices
of States at the time the Fourteenth Amendment was adopted. See ante, at 2805.
Included within this realm of liberty is " 'the right of the individual,
married or single, to be free from unwarranted governmental intrusion into
matters so fundamentally affecting a person as the decision whether to bear or
beget a child.' " Ante, at 2807, quoting Eisenstadt v. Baird, 405 U.S.
438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349 (1972) (emphasis in original).
"These matters, involving the most intimate and personal choices a person
may make in a lifetime, choices central to personal dignity and autonomy, are
central to the *924 liberty
protected by the Fourteenth Amendment." Ante, at 2807 (emphasis added).
Finally, the Court today recognizes that in the case of abortion, "the
liberty of the woman is at stake in a sense unique to the human condition and
so unique to the law. The mother who carries a child to full term is subject to
anxieties, to physical constraints, to pain that only she must bear."
Ante, at 2807.
The Court's reaffirmation of Roe's central holding is also based
on the force of stare decisis. "[N]o erosion of principle going to liberty
or personal autonomy has left Roe's central holding a doctrinal remnant; Roe
portends no developments at odds with other precedent for the analysis of
personal liberty; and no changes of fact have rendered viability more or less
appropriate as the point at which the balance of interests tips." Ante, at
2812. Indeed, the Court acknowledges that Roe's limitation on state power could
not be removed "without serious inequity to those who have relied upon it
or significant damage to the stability of the society governed by the **2845 rule in question." Ante,
at 2809. In the 19 years since Roe was decided, that case has shaped more than
reproductive planning‑‑"[a]n entire generation has come of age
free to assume Roe's concept of liberty in defining the capacity of women to
act in society, and to make reproductive decisions." Ante, at 2812. The
Court understands that, having "call[ed] the contending sides ... to end
their national division by accepting a common mandate rooted in the
Constitution," ante, at 2815, a decision to overrule Roe "would
seriously weaken the Court's capacity to exercise the judicial power and to function
as the Supreme Court of a Nation dedicated to the rule of law." Ante, at
2814. What has happened today should serve as a model for future Justices and a
warning to all who have tried to turn this Court into yet another political
branch.
In striking down the Pennsylvania statute's spousal notification
requirement, the Court has established a framework *925 for evaluating abortion regulations that responds to the
social context of women facing issues of reproductive choice. [FN1] In
determining the burden imposed by the challenged regulation, the Court inquires
whether the regulation's "purpose or effect is to place a substantial
obstacle in the path of a woman seeking an abortion before the fetus attains
viability." Ante, at 2821 (emphasis added). The Court reaffirms: "The
proper focus of constitutional inquiry is the group for whom the law is a
restriction, not the group for whom the law is irrelevant." Ante, at 2829.
Looking at this group, the Court inquires, based on expert testimony, empirical
studies, and common sense, whether "in a large fraction of the cases in
which [the restriction] is relevant, it will operate as a substantial obstacle
to a woman's choice to undergo an abortion." Ante, at 2830. "A
statute with this purpose is invalid because the means chosen by the State to
further the interest in potential life must be calculated to inform the woman's
free choice, not hinder it." Ante, at 2820. And in applying its test, the
Court remains sensitive to the unique role of women in the decisionmaking process.
Whatever may have been the practice when the Fourteenth Amendment was adopted,
the Court observes, "[w]omen do not lose their constitutionally protected
liberty when they marry. The Constitution protects all individuals, male or
female, married or unmarried, from the abuse of governmental power, even where
that power is employed for the supposed benefit of a member of the individual's
family." Ante, at 2831. [FN2]
FN1. As I shall explain,
the joint opinion and I disagree on the appropriate standard of review for
abortion regulations. I do agree, however, that the reasons advanced by the
joint opinion suffice to invalidate the spousal notification requirement under
a strict scrutiny standard.
FN2. I also join the
Court's decision to uphold the medical emergency provision. As the Court notes,
its interpretation is consistent with the essential holding of Roe that
"forbids a State to interfere with a woman's choice to undergo an abortion
procedure if continuing her pregnancy would constitute a threat to her
health." Ante, at 2822. As is
apparent in my analysis below, however, this exception does not render
constitutional the provisions which I conclude do not survive strict scrutiny.
*926 Lastly, while I believe
that the joint opinion errs in failing to invalidate the other regulations, I
am pleased that the joint opinion has not ruled out the possibility that these
regulations may be shown to impose an unconstitutional burden. The joint
opinion makes clear that its specific holdings are based on the insufficiency
of the record before it. See, e.g., ante, at 2825. I am confident that in the
future evidence will be produced to show that "in a large fraction of the
cases in which [these regulations are] relevant, [they] will operate as a
substantial obstacle to a woman's choice to undergo an abortion." Ante, at
2830.
II
Today, no less than yesterday, the Constitution and decisions of
this Court require that a State's abortion restrictions be subjected **2846 to the strictest of judicial
scrutiny. Our precedents and the joint opinion's principles require us to
subject all non‑de‑minimis abortion regulations to strict scrutiny.
Under this standard, the Pennsylvania statute's provisions requiring content‑based
counseling, a 24‑hour delay, informed parental consent, and reporting of
abortion‑related information must be invalidated.
A
The Court today reaffirms the long recognized rights of privacy
and bodily integrity. As early as 1891, the Court held, "[n]o right is
held more sacred, or is more carefully guarded by the common law, than the
right of every individual to the possession and control of his own person, free
from all restraint or interference of others...." Union Pacific R. Co. v.
Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891).
Throughout this century, this Court also has held that the fundamental right of
privacy protects citizens against governmental intrusion *927 in such intimate family matters as procreation, childrearing,
marriage, and contraceptive choice. See ante, at 2804‑2805. These cases
embody the principle that personal decisions that profoundly affect bodily
integrity, identity, and destiny should be largely beyond the reach of
government. Eisenstadt, 405 U.S., at 453, 92 S.Ct., at 1038. In Roe v. Wade,
this Court correctly applied these principles to a woman's right to choose
abortion.
State restrictions on abortion violate a woman's right of privacy
in two ways. First, compelled continuation of a pregnancy infringes upon a
woman's right to bodily integrity by imposing substantial physical intrusions
and significant risks of physical harm. During pregnancy, women experience
dramatic physical changes and a wide range of health consequences. Labor and
delivery pose additional health risks and physical demands. In short,
restrictive abortion laws force women to endure physical invasions far more
substantial than those this Court has held to violate the constitutional
principle of bodily integrity in other contexts. See, e.g., Winston v. Lee, 470
U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985) (invalidating surgical removal
of bullet from murder suspect); Rochin v. California, 342 U.S. 165, 72 S.Ct.
205, 96 L.Ed. 183 (1952) (invalidating stomach pumping). [FN3]
FN3. As the joint opinion
acknowledges, ante, at 2810, this Court has recognized the vital liberty
interest of persons in refusing unwanted medical treatment. Cruzan v. Director,
Mo. Dept. of Health, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990). Just
as the Due Process Clause protects the deeply personal decision of the
individual to refuse medical treatment, it also must protect the deeply
personal decision to obtain medical treatment, including a woman's decision to
terminate a pregnancy.
Further, when the State restricts a woman's right to terminate her
pregnancy, it deprives a woman of the right to make her own decision about
reproduction and family planning‑‑critical life choices that this
Court long has deemed central to the right to privacy. The decision to
terminate or continue a pregnancy has no less an impact on a woman's life than
decisions about contraception or marriage. 410 U.S., *928 at 153, 93 S.Ct., at 727. Because motherhood has a dramatic
impact on a woman's educational prospects, employment opportunities, and self‑determination,
restrictive abortion laws deprive her of basic control over her life. For these
reasons, "the decision whether or not to beget or bear a child" lies
at "the very heart of this cluster of constitutionally protected
choices." Carey v. Population Services International, 431 U.S. 678, 685,
97 S.Ct. 2010, 2016, 52 L.Ed.2d 675 (1977).
A State's restrictions on a woman's right to terminate her
pregnancy also implicate constitutional guarantees of gender equality. State
restrictions on abortion compel women to continue pregnancies they otherwise
might terminate. By restricting the right to terminate pregnancies, the State
conscripts women's bodies into its service, forcing women to continue their
pregnancies, suffer the pains **2847
of childbirth, and in most instances, provide years of maternal care. The State
does not compensate women for their services; instead, it assumes that they owe
this duty as a matter of course. This assumption‑‑that women can
simply be forced to accept the "natural" status and incidents of
motherhood‑‑appears to rest upon a conception of women's role that
has triggered the protection of the Equal Protection Clause. See, e.g.,
Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724‑726, 102 S.Ct.
3331, 3336‑3337, 73 L.Ed.2d 1090 (1982); Craig v. Boren, 429 U.S. 190,
198‑199, 97 S.Ct. 451, 457‑458, 50 L.Ed.2d 397 (1976). [FN4] The
joint opinion recognizes that these assumptions about women's place in society
"are no longer consistent with our
*929 understanding of the family, the individual, or the Constitution."
Ante, at 2831.
FN4. A growing number of
commentators are recognizing this point. See, e.g., L. Tribe, American
Constitutional Law § 15‑10, pp. 1353‑1359 (2d ed. 1988); Siegel,
Reasoning from the Body: A Historical Perspective on Abortion Regulation and
Questions of Equal Protection, 44 Stan.L.Rev. 261, 350‑380 (1992);
Sunstein, Neutrality in Constitutional Law (With Special Reference to
Pornography, Abortion, and Surrogacy), 92 Colum.L.Rev. 1, 31‑44 (1992);
MacKinnon, Reflections on Sex Equality Under Law, 100 Yale L.J. 1281, 1308‑1324
(1991); cf. Rubenfeld, The Right of Privacy, 102 Harv.L.Rev. 737, 788‑791
(1989) (similar analysis under the rubric of privacy); MacKinnon, Reflections
on Sex Equality Under Law, 100 Yale L.J. 1281, 1308‑1324 (1991).
B
The Court has held that limitations on the right of privacy are
permissible only if they survive "strict" constitutional scrutiny‑‑that
is, only if the governmental entity imposing the restriction can demonstrate
that the limitation is both necessary and narrowly tailored to serve a
compelling governmental interest. Griswold v. Connecticut, 381 U.S. 479, 485,
85 S.Ct. 1678, 1682, 14 L.Ed.2d 510 (1965). We have applied this principle
specifically in the context of abortion regulations. Roe v. Wade, 410 U.S., at
155, 93 S.Ct., at 728. [FN5]
FN5. To say that
restrictions on a right are subject to strict scrutiny is not to say that the
right is absolute. Regulations can be upheld if they have no significant impact
on the woman's exercise of her right and are justified by important state
health objectives. See, e.g., Planned Parenthood of Central Mo. v. Danforth,
428 U.S. 52, 65‑67, 79‑81, 96 S.Ct. 2831, 2839‑2840, 2845‑2847,
49 L.Ed.2d 788 (1976) (upholding requirements of a woman's written consent and
record‑keeping). But the Court today reaffirms the essential principle of
Roe that a woman has the right "to choose to have an abortion before
viability and to obtain it without undue
interference from the State." Ante, at 2804. Under Roe, any more than de
minimis interference is undue.
Roe implemented these principles through a framework that was
designed "to ensure that the woman's right to choose not become so
subordinate to the State's interest in promoting fetal life that her choice
exists in theory but not in fact," ante, at 2818. Roe identified two
relevant state interests: "an interest in preserving and protecting the
health of the pregnant woman" and an interest in "protecting the
potentiality of human life." 410 U.S., at 162, 93 S.Ct., at 731. With
respect to the State's interest in the health of the mother, "the
'compelling' point ... is at approximately the end of the first
trimester," because it is at that point that the mortality rate in
abortion approaches that in childbirth. Id., at 163, 93 S.Ct., at 731. With
respect to the State's interest in potential life, "the 'compelling' point
is at viability," because it is at that point that the *930 fetus "presumably has the capability of meaningful life
outside the mother's womb." Ibid. In order to fulfill the requirement of
narrow tailoring, "the State is obligated to make a reasonable effort to
limit the effect of its regulations to the period in the trimester during which
its health interest will be furthered." Akron v. Akron Center for Reproductive
Health, Inc., 462 U.S. 416, 434, 103 S.Ct. 2481, 2495, 76 L.Ed.2d 687 (1983).
In my view, application of this analytical framework is no less
warranted than when it was approved by seven Members of this Court in Roe.
Strict scrutiny of state limitations on reproductive choice still offers the
most secure protection of the woman's right
**2848 to make her own reproductive decisions, free from state coercion. No
majority of this Court has ever agreed upon an alternative approach. The
factual premises of the trimester framework have not been undermined, see
Webster, 492 U.S., at 553, 109 S.Ct., at 3075 (BLACKMUN, J., dissenting), and
the Roe framework is far more administrable, and far less manipulable, than the
"undue burden" standard adopted by the joint opinion.
Nonetheless, three criticisms of the trimester framework continue
to be uttered. First, the trimester framework is attacked because its key
elements do not appear in the text of the Constitution. My response to this
attack remains the same as it was in Webster:
"Were this a true
concern, we would have to abandon most of our constitutional jurisprudence.
[T]he 'critical elements' of countless constitutional doctrines nowhere appear
in the Constitution's text.... The Constitution makes no mention, for example,
of the First Amendment's 'actual malice' standard for proving certain libels,
see New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686
(1964).... Similarly, the Constitution makes no mention of the rational‑basis
test, or the specific verbal formulations of intermediate and strict scrutiny
by which this Court evaluates claims under the Equal Protection Clause. The
reason is simple. Like the Roe framework, these *931 tests or standards are not, and do not purport to be, rights
protected by the Constitution. Rather, they are judge‑ made methods for
evaluating and measuring the strength and scope of constitutional rights or for
balancing the constitutional rights of individuals against the competing
interests of government." Id., at 548, 109 S.Ct., at 3072‑3073.
The second criticism is that the framework more closely resembles
a regulatory code than a body of constitutional doctrine. Again, my answer
remains the same as in Webster:
"[I]f this were a
true and genuine concern, we would have to abandon vast areas of our
constitutional jurisprudence.... Are [the distinctions entailed in the
trimester framework] any finer, or more 'regulatory,' than the distinctions we
have often drawn in our First Amendment jurisprudence, where, for example, we
have held that a 'release time' program permitting public‑ school
students to leave school grounds during school hours to receive religious
instruction does not violate the Establishment Clause, even though a release‑time
program permitting religious instruction on school grounds does violate the
Clause? Compare Zorach v. Clauson, 343 U.S. 306 [72 S.Ct. 679, 96 L.Ed. 954]
(1952), with Illinois ex rel. McCollum v. Board of Education of School Dist.
No. 71, Champaign County, 333 U.S. 203 [68 S.Ct. 461, 92 L.Ed. 649] (1948)....
Similarly, in a Sixth Amendment case, the Court held that although an overnight
ban on attorney‑client communication violated the constitutionally
guaranteed right to counsel, Geders v. United States, 425 U.S. 80 [96 S.Ct.
1330, 47 L.Ed.2d 592] (1976), that right was not violated when a trial judge
separated a defendant from his lawyer during a 15‑minute recess after the
defendant's direct testimony. Perry v. Leeke, 488 U.S. 272 [109 S.Ct. 594, 102
L.Ed.2d 624] (1989).
"That numerous
constitutional doctrines result in narrow differentiations between similar
circumstances does *932 not mean
that this Court has abandoned adjudication in favor of regulation." Id.,
at 549‑550, 109 S.Ct., at 3073‑3074.
The final, and more genuine, criticism of the trimester framework
is that it fails to find the State's interest in potential human life
compelling throughout pregnancy. No Member of this Court‑‑nor for
that matter, the Solicitor General, Tr. of Oral Arg. 42‑‑has ever
questioned our holding in Roe that an abortion is not "the termination of
life entitled to Fourteenth Amendment protection." 410 U.S., at 159, 93
S.Ct., at 729‑730. **2849
Accordingly, a State's interest in protecting fetal life is not grounded in the
Constitution. Nor, consistent with our Establishment Clause, can it be a
theological or sectarian interest. See Thornburgh v. American College of
Obstetricians and Gynecologists, 476 U.S. 747, 778, 106 S.Ct. 2169, 2188, 90
L.Ed.2d 779 (1986) (STEVENS, J., concurring). It is, instead, a legitimate
interest grounded in humanitarian or pragmatic concerns. See ante, at 2839‑2840
(STEVENS, J., concurring in part and dissenting in part).
But while a State has "legitimate interests from the outset
of the pregnancy inprotecting the health of the woman and the life of the fetus
that may become a child," ante, at 2804, legitimate interests are not
enough. To overcome the burden of strict scrutiny, the interests must be
compelling. The question then is how best to accommodate the State's interest
in potential human life with the constitutional liberties of pregnant women.
Again, I stand by the views I expressed in Webster:
"I remain convinced,
as six other Members of this Court 16 years ago were convinced, that the Roe
framework, and the viability standard in particular, fairly, sensibly, and
effectively functions to safeguard the constitutional liberties of pregnant
women while recognizing and accommodating the State's interest in potential
human life. The viability line reflects the biological facts and truths of
fetal development; it marks that threshold moment prior to which a fetus cannot
survive separate from the *933 woman
and cannot reasonably and objectively be regarded as a subject of rights or
interests distinct from, or paramount to, those of the pregnant woman. At the
same time, the viability standard takes account of the undeniable fact that as
the fetus evolves into its postnatal form, and as it loses its dependence on
the uterine environment, the State's interest in the fetus' potential human
life, and in fostering a regard for human life in general, becomes compelling.
As a practical matter, because viability follows 'quickening'‑‑the
point at which a woman feels movement in her womb‑‑and because
viability occurs no earlier than 23 weeks gestational age, it establishes an
easily applicable standard for regulating abortion while providing a pregnant
woman ample time to exercise her fundamental right with her responsible
physician to terminate her pregnancy." 492 U.S., at 553‑554, 109
S.Ct., at 3075‑3076. [FN6]
FN6. The joint opinion
agrees with Roe's conclusion that viability occurs at 23 or 24 weeks at the
earliest. Compare ante, at 2811, with Roe v. Wade, 410 U.S. 113, 160, 93 S.Ct.
705, 730, 35 L.Ed.2d 147 (1973).
Roe's trimester framework does not ignore the State's interest in
prenatal life. Like Justice STEVENS, ante, at 2840, I agree that the State may
take steps to ensure that a woman's choice "is thoughtful and informed,"
ante, at 2818, and that "States are free to enact laws to provide a
reasonable framework for a woman to make a decision that has such profound and
lasting meaning." Ante, at 2818. But
"[s]erious questions
arise ... when a State attempts to persuade the woman to choose childbirth over
abortion. Ante, at 2821. Decisional autonomy must limit the State's power to
inject into a woman's most personal deliberations its own views of what is
best. The State may promote its preferences by funding childbirth, by creating
and maintaining alternatives to abortion, and by espousing the virtues of
family; but it must respect *934 the
individual's freedom to make such judgments." Ante, at 2840 (STEVENS, J.,
concurring in part and dissenting in part) (internal quotation marks omitted).
As the joint opinion recognizes, "the means chosen by the
State to further the interest in potential life must be calculated to inform
the woman's free choice, not hinder it." Ante, at 2820.
In sum, Roe's requirement of strict scrutiny as implemented
through a trimester framework should not be disturbed. No other approach has
gained a majority, and no other is more protective of the woman's fundamental
right. Lastly, no other approach properly accommodates the woman's**2850 constitutional right with the
State's legitimate interests.
C
Application of the strict scrutiny standard results in the
invalidation of all the challenged provisions. Indeed, as this Court has
invalidated virtually identical provisions in prior cases, stare decisis
requires that we again strike them down.
This Court has upheld informed‑ and written‑consent
requirements only where the State has demonstrated that they genuinely further
important health‑related state concerns. See Planned Parenthood of
Central Mo. v. Danforth, 428 U.S. 52, 65‑67, 96 S.Ct. 2831, 2839‑2840,
49 L.Ed.2d 788 (1976). A State may not, under the guise of securing informed
consent, "require the delivery of information 'designed to influence the
woman's informed choice between abortion or childbirth.' " Thornburgh, 476
U.S., at 760, 106 S.Ct., at 2178, quoting Akron, 462 U.S., at 443‑444,
103 S.Ct., at 2499‑2500. Rigid requirements that a specific body of
information be imparted to a woman in all cases, regardless of the needs of the
patient, improperly intrude upon the discretion of the pregnant woman's
physician and thereby impose an " 'undesired and uncomfortable
straitjacket.' " Thornburgh, 476 U.S., at 762, 106 S.Ct., at 2179, quoting
Danforth, 428 U.S., at 67, n. 8, 96 S.Ct., at 2840, n. 8.
Measured against these principles, some aspects of the
Pennsylvania informed‑ consent scheme are unconstitutional. *935 While it is unobjectionable for
the Commonwealth to require that the patient be informed of the nature of the
procedure, the health risks of the abortion and of childbirth, and the probable
gestational age of the unborn child, compare Pa.Cons.Stat. §§ 3205(a)(1)(i)‑
(iii) (1990) with Akron, 462 U.S., at 446, n. 37, 103 S.Ct., at 2501, n. 37, I
remain unconvinced that there is a vital state need for insisting that the
information be provided by a physician rather than a counselor. Id., at 448,
103 S.Ct., at 2502. The District Court found that the physician‑only
requirement necessarily would increase costs to the plaintiff clinics, costs
that undoubtedly would be passed on to patients. And because trained women
counselors are often more understanding than physicians, and generally have
more time to spend with patients, see App. 366‑387, the physician‑only
disclosure requirement is not narrowly tailored to serve the Commonwealth's
interest in protecting maternal health.
Sections 3205(a)(2)(i)‑(iii) of the Act further requires
that the physician or a qualified nonphysician inform the woman that printed
materials are available from the Commonwealth that describe the fetus and provide
information about medical assistance for childbirth, information about child
support from the father, and a list of agencies offering adoption and other
services as alternatives to abortion. Thornburgh invalidated biased patient‑counseling
requirements virtually identical to the one at issue here. What we said of
those requirements fully applies in these cases:
"[T]he listing of
agencies in the printed Pennsylvania form presents serious problems; it
contains names of agencies that well may be out of step with the needs of the
particular woman and thus places the physician in an awkward position and
infringes upon his or her professional responsibilities. Forcing the physician
or counselor to present the materials and the list to the woman makes him or her
in effect an agent of the State in treating the woman and places his or her
imprimatur upon both the materials and the list. All this is, or *936 comes close to being, state
medicine imposed upon the woman, not the professional medical guidance she
seeks, and it officially structures‑‑as it obviously was intended
to do‑‑the dialogue between the woman and her physician.
"The requirements ...
that the woman be advised that medical assistance benefits may be available,
and that the father is responsible for financial assistance in the support of
the child similarly are poorly **2851
disguised elements of discouragement for the abortion decision. Much of this
..., for many patients, would be irrelevant and inappropriate. For a patient
with a life‑threatening pregnancy, the 'information' in its very
rendition may be cruel as well as destructive of the physician‑patient
relationship. As any experienced social worker or other counselor knows,
theoretical financial responsibility often does not equate with fulfillment....
Under the guise of informed consent, the Act requires the dissemination of
information that is not relevant to such consent, and, thus, it advances no
legitimate state interest." 476 U.S., at 762‑763, 106 S.Ct., at 2180
(citation omitted).
"This type of compelled information is the antithesis of
informed consent," id., at 764, 106 S.Ct., at 2180, and goes far beyond
merely describing the general subject matter relevant to the woman's decision.
"That the Commonwealth does not, and surely would not, compel similar
disclosure of every possible peril of necessary surgery or of simple
vaccination, reveals the anti‑ abortion character of the statute and its
real purpose." Ibid. [FN7]
FN7. While I do not agree
with the joint opinion's conclusion that these provisions should be upheld, the
joint opinion has remained faithful to principles this Court previously has
announced in examining counseling provisions. For example, the joint opinion
concludes that the "information the State requires to be made available to
the woman" must be "truthful and not misleading." Ante, at 2823.
Because the State's information must be "calculated to inform the woman's
free choice, not hinder it," ante,
at 2820, the measures must be designed to ensure that a woman's choice is
"mature and informed," ante, at 2824, not intimidated, imposed, or
impelled. To this end, when the State requires the provision of certain
information, the State may not alter the manner of presentation in order to
inflict "psychological abuse," ante, at 2828, designed to shock or
unnerve a woman seeking to exercise her liberty right. This, for example, would
appear to preclude a State from requiring a woman to view graphic literature or
films detailing the performance of an abortion operation. Just as a visual
preview of an operation to remove an appendix plays no part in a physician's
securing informed consent to an appendectomy, a preview of scenes appurtenant
to any major medical intrusion into the human body does not constructively
inform the decision of a woman of the State's interest in the preservation of
the woman's health or demonstrate the State's "profound respect for the
life of the unborn." Ante, at 2821.
*937 The 24‑hour waiting
period following the provision of the foregoing information is also clearly
unconstitutional. The District Court found that the mandatory 24‑hour
delay could lead to delays in excess of 24 hours, thus increasing health risks,
and that it would require two visits to the abortion provider, thereby
increasing travel time, exposure to further harassment, and financial cost.
Finally, the District Court found that the requirement would pose especially
significant burdens on women living in rural areas and those women that have
difficulty explaining their whereabouts. 744 F.Supp. 1323, 1378‑1379 (ED
Pa.1990). In Akron this Court invalidated a similarly arbitrary or inflexible
waiting period because, as here, it furthered no legitimate state interest.
[FN8]
FN8. The Court's decision
in Hodgson v. Minnesota, 497 U.S. 417, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990),
validating a 48‑hour waiting period for minors seeking an abortion to
permit parental involvement does not alter this conclusion. Here the 24‑hour
delay is imposed on an adult woman. See Hodgson, id., at 449‑450, n. 35,
110 S.Ct., at 2944, n. 35; Ohio v. Akron Center for Reproductive Health, Inc.,
497 U.S. 502, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990). Moreover, the statute in
Hodgson did not require any delay once the minor obtained the affirmative
consent of either a parent or the court.
As Justice STEVENS insightfully concludes, the mandatory delay
rests either on outmoded or unacceptable assumptions about the decisionmaking
capacity of women or the belief that the decision to terminate the pregnancy is *938 presumptively wrong. Ante, at
2841‑2842. The requirement that women consider this obvious and slanted
information for an additional 24 hours contained in these provisions will only
influence the woman's decision in improper ways. The vast majority of women
will know this information‑‑of
**2852 the few that do not, it is less likely that their minds will be
changed by this information than it will be either by the realization that the
State opposes their choice or the need once again to endure abuse and
harassment on return to the clinic. [FN9]
FN9. Because this
information is so widely known, I am confident that a developed record can be
made to show that the 24‑hour delay, "in a large fraction of the
cases in which [the restriction] is relevant, ... will operate as a substantial
obstacle to a woman's choice to undergo an abortion." Ante, at 2830.
Except in the case of a medical emergency, § 3206 requires a
physician to obtain the informed consent of a parent or guardian before
performing an abortion on an unemancipated minor or an incompetent woman. Based
on evidence in the record, the District Court concluded that, in order to
fulfill the informed‑consent requirement, generally accepted medical
principles would require an in‑person visit by the parent to the facility.
744 F.Supp., at 1382. Although the Court "has recognized that the State
has somewhat broader authority to regulate the activities of children than of
adults," the State nevertheless must demonstrate that there is a
"Significant state interest in conditioning an abortion ... that is not
present in the case of an adult." Danforth, 428 U.S., at 74‑75, 96
S.Ct., at 2843‑2844 (emphasis added). The requirement of an in‑person
visit would carry with it the risk of a delay of several days or possibly
weeks, even where the parent is willing to consent. While the State has an
interest in encouraging parental involvement in the minor's abortion decision,
§ 3206 is not narrowly drawn to serve that interest. [FN10]
FN10. The judicial‑bypass
provision does not cure this violation. Hodgson is distinguishable, since these
cases involve more than parental involvement or approval‑‑rather,
the Pennsylvania law requires that the parent receive information designed to
discourage abortion in a face‑to‑ face meeting with the physician.
The bypass procedure cannot ensure that the parent would obtain the
information, since in many instances, the parent would not even attend the
hearing. A State may not place any restriction on a young woman's right to an
abortion, however irrational,
simply because it has provided a judicial bypass.
*939 Finally, the Pennsylvania
statute requires every facility performing abortions to report its activities
to the Commonwealth. Pennsylvania contends that this requirement is valid under
Danforth, in which this Court held that recordkeeping and reporting
requirements that are reasonably directed to the preservation of maternal
health and that properly respect a patient's confidentiality are permissible.
Id., at 79‑81, 96 S.Ct., at 2845‑2847. The Commonwealth attempts to
justify its required reports on the ground that the public has a right to know
how its tax dollars are spent. A regulation designed to inform the public about
public expenditures does not further the Commonwealth's interest in protecting
maternal health. Accordingly, such a regulation cannot justify a legally
significant burden on a woman's right to obtain an abortion.
The confidential reports concerning the identities and medical
judgment of physicians involved in abortions at first glance may seem valid,
given the Commonwealth's interest in maternal health and enforcement of the
Act. The District Court found, however, that, notwithstanding the
confidentiality protections, many physicians, particularly those who have
previously discontinued performing abortions because of harassment, would
refuse to refer patients to abortion clinics if their names were to appear on
these reports. 744 F.Supp., at 1392.
The Commonwealth has failed to show that the name of the referring physician
either adds to the pool of scientific knowledge concerning abortion or is
reasonably related to the Commonwealth's interest in maternal health. I
therefore agree with the District Court's conclusion that the confidential
reporting requirements are unconstitutional
*940 insofar as they require the name of the referring physician and the
basis for his or her medical judgment.
**2853 In sum, I would affirm
the judgment in No. 91‑902 and reverse the judgment in No. 91‑744
and remand the cases for further proceedings.
III
At long last, THE CHIEF JUSTICE and those who have joined him
admit it. Gone are the contentions that the issue need not be (or has not been)
considered. There, on the first page, for all to see, is what was expected:
"We believe that Roe was wrongly decided, and that it can and should be
overruled consistently with our traditional approach to stare decisis in
constitutional cases." Post, at 2855. If there is much reason to applaud
the advances made by the joint opinion today, there is far more to fear from
THE CHIEF JUSTICE's opinion.
THE CHIEF JUSTICE's criticism of Roe follows from his stunted
conception of individual liberty. While recognizing that the Due Process Clause
protects more than simple physical liberty, he then goes on to construe this
Court's personal‑liberty cases as establishing only a laundry list of
particular rights, rather than a principled account of how these particular
rights are grounded in a more general right of privacy. Post, at 2859. This
constricted view is reinforced by THE CHIEF JUSTICE's exclusive reliance on
tradition as a source of fundamental rights. He argues that the record in favor
of a right to abortion is no stronger than the record in Michael H. v. Gerald
D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989), where the plurality
found no fundamental right to visitation privileges by an adulterous father, or
in Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986),
where the Court found no fundamental right to engage in homosexual sodomy, or
in a case involving the " 'firing [of] a gun ... into another person's
body.' " Post, at 2859. In THE CHIEF JUSTICE's world, a woman considering
whether to terminate a pregnancy is entitled to no more protection than
adulterers, murderers, and so‑called "sexual *941 deviates." [FN11] Given THE CHIEF JUSTICE's exclusive
reliance on tradition, people using contraceptives seem the next likely
candidate for his list of outcasts.
FN11. Obviously, I do not
share THE CHIEF JUSTICE's views of homosexuality as sexual deviance. See Bowers, 478 U.S., at 202‑203
n. 2, 106 S.Ct., at 2849‑2850 n. 2 (BLACKMUN, J., dissenting).
Even more shocking than THE CHIEF JUSTICE's cramped notion of
individual liberty is his complete omission of any discussion of the effects that
compelled childbirth and motherhood have on women's lives. The only expression
of concern with women's health is purely instrumental‑‑for THE
CHIEF JUSTICE, only women's psychological health is a concern, and only to the
extent that he assumes that every woman who decides to have an abortion does so
without serious consideration of the moral implications of their decision.
Post, at 2867‑2868. In short, THE CHIEF JUSTICE's view of the State's
compelling interest in maternal health has less to do with health than it does
with compelling women to be maternal.
Nor does THE CHIEF JUSTICE give any serious consideration to the
doctrine of stare decisis. For THE CHIEF JUSTICE, the facts that gave rise to
Roe are surprisingly simple: "women become pregnant, there is a point
somewhere, depending on medical technology, where a fetus becomes viable, and
women give birth to children." Post, at 2861. This characterization of the
issue thus allows THE CHIEF JUSTICE quickly to discard the joint opinion's
reliance argument by asserting that "reproductive planning could take
virtually immediate account of" a decision overruling Roe. Post, at 2861‑2862
(internal quotation marks omitted).
THE CHIEF JUSTICE's narrow conception of individual liberty and
stare decisis leads him to propose the same standard of review proposed by the
plurality in Webster. "States may regulate abortion procedures in ways
rationally related to a legitimate state
**2854 interest. Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483,
491, 75 S.Ct. 461, 466, 99 L.Ed. 563 (1955); cf. Stanley v. Illinois, 405 U.S.
645, 651‑653, 92 S.Ct. 1208, 1212‑1213, 31 L.Ed.2d 551
(1972)." Post, at 2867. THE *942
CHIEF JUSTICE then further weakens the test by providing an insurmountable
requirement for facial challenges: Petitioners must " 'show that no set of
circumstances exists under which the [provision] would be valid.' " Post,
at 2870, quoting Ohio v. Akron Center for Reproductive Health, 497 U.S., at
514, 110 S.Ct., at 2980. In short, in his view, petitioners must prove that the
statute cannot constitutionally be applied to anyone. Finally, in applying his
standard to the spousal‑notification provision, THE CHIEF JUSTICE
contends that the record lacks any "hard evidence" to support the
joint opinion's contention that a "large fraction" of women who
prefer not to notify their husbands involve situations of battered women and
unreported spousal assault. Post, at 2870, n. 2. Yet throughout the explication
of his standard, THE CHIEF JUSTICE never explains what hard evidence is, how
large a fraction is required, or how a battered women is supposed to pursue an
as‑applied challenge.
Under his standard, States can ban abortion if that ban is
rationally related to a legitimate state interest‑‑a standard which
the United States calls "deferential, but not toothless." Yet when
pressed at oral argument to describe the teeth, the best protection that the
Solicitor General could offer to women was that a prohibition, enforced by
criminal penalties, with no exception for the life of the mother, "could
raise very serious questions." Tr. of Oral Arg. 48. Perhaps, the Solicitor
General offered, the failure to include an exemption for the life of the mother
would be "arbitrary and capricious." Id., at 49. If, as THE CHIEF JUSTICE
contends, the undue burden test is made out of whole cloth, the so‑called
"arbitrary and capricious" limit is the Solicitor General's "new
clothes."
Even if it is somehow "irrational" for a State to
require a woman to risk her life for her child, what protection is offered for
women who become pregnant through rape or incest? Is there anything arbitrary
or capricious about a *943 State's
prohibiting the sins of the father from being visited upon his offspring?
[FN12]
FN12. Justice SCALIA urges
the Court to "get out of this area," post, at 2885, and leave questions regarding abortion entirely to the
States, post, at 2883‑2884. Putting aside the fact that what he advocates
is nothing short of an abdication by the Court of its constitutional responsibilities,
Justice SCALIA is uncharacteristically naive if he thinks that overruling Roe
and holding that restrictions on a woman's right to an abortion are subject
only to rational‑basis review will enable the Court henceforth to avoid
reviewing abortion‑related issues. State efforts to regulate and prohibit
abortion in a post‑Roe world undoubtedly would raise a host of distinct
and important constitutional questions meriting review by this Court. For
example, does the Eighth Amendment impose any limits on the degree or kind of
punishment a State can inflict upon physicians who perform, or women who
undergo, abortions? What effect would differences among States in their
approaches to abortion have on a woman's right to engage in interstate travel?
Does the First Amendment permit States that choose not to criminalize abortion
to ban all advertising providing information about where and how to obtain
abortions?
But, we are reassured, there is always the protection of the
democratic process. While there is much to be praised about our democracy, our
country since its founding has recognized that there are certain fundamental
liberties that are not to be left to the whims of an election. A woman's right
to reproductive choice is one of those fundamental liberties. Accordingly, that
liberty need not seek refuge at the ballot box.
IV
In one sense, the Court's approach is worlds apart from that of
THE CHIEF JUSTICE and Justice SCALIA. And yet, in another sense, the distance
between the two approaches is short‑‑the distance is but a single
vote.
I am 83 years old. I cannot remain on this Court forever, and when
I do step down, the **2855
confirmation process for my successor well may focus on the issue before us
today. That, I regret, may be exactly where the choice between the two worlds
will be made.
*944 Chief Justice REHNQUIST,
with whom Justice WHITE, Justice SCALIA, and Justice THOMAS join, concurring in
the judgment in part and dissenting in part.
The joint opinion, following its newly minted variation on stare
decisis, retains the outer shell of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35
L.Ed.2d 147 (1973), but beats a wholesale retreat from the substance of that
case. We believe that Roe was wrongly decided, and that it can and should be
overruled consistently with our traditional approach to stare decisis in
constitutional cases. We would adopt the approach of the plurality in Webster
v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410
(1989), and uphold the challenged provisions of the Pennsylvania statute in
their entirety.
I
In ruling on this litigation below, the Court of Appeals for the
Third Circuit first observed that "this appeal does not directly implicate
Roe; this case involves the regulation of abortions rather than their outright
prohibition." 947 F.2d 682, 687 (1991). Accordingly, the court directed
its attention to the question of the standard of review for abortion
regulations. In attempting to settle on the correct standard, however, the
court confronted the confused state of this Court's abortion jurisprudence.
After considering the several opinions in Webster v. Reproductive Health
Services, supra, and Hodgson v. Minnesota, 497 U.S. 417, 110 S.Ct. 2926, 111
L.Ed.2d 344 (1990), the Court of Appeals concluded that Justice O'CONNOR's
"undue burden" test was controlling, as that was the narrowest ground
on which we had upheld recent abortion regulations. 947 F.2d, at 693‑697
("When a fragmented court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, the holding of the
Court may be viewed as that position taken by those Members who concurred in
the judgments on the narrowest grounds" (quoting Marks v. United States,
430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977) (internal quotation
marks omitted))). Applying this standard, the Court of Appeals upheld all of
the challenged regulations except the one
*945 requiring a woman to notify her spouse of an intended abortion.
In arguing that this Court should invalidate each of the
provisions at issue, petitioners insist that we reaffirm our decision in Roe v.
Wade, supra, in which we held unconstitutional a Texas statute making it a
crime to procure an abortion except to save the life of the mother. [FN1] We
agree with the Court of Appeals that our decision in Roe is not directly
implicated by the Pennsylvania statute, which does not prohibit, but simply
regulates, abortion. But, as the Court of Appeals found, the state of our post‑Roe
decisional law dealing with the regulation of abortion is confusing and
uncertain, indicating that a reexamination of that line of cases is in order.
Unfortunately for those who must apply this Court's decisions, the
reexamination undertaken today leaves the Court no less divided than
beforehand. Although they reject the trimester framework that formed the
underpinning of Roe, Justices O'CONNOR, KENNEDY, and SOUTER adopt a revised
undue burden standard to analyze the challenged regulations. We conclude,
however, that such an outcome is an unjustified constitutional compromise, one
which leaves the **2856 Court in a
position to closely scrutinize all types of abortion regulations despite the
fact that it lacks the power to do so under the Constitution.
FN1. Two years after Roe,
the West German constitutional court, by contrast, struck down a law
liberalizing access to abortion on the grounds that life developing within the
womb is constitutionally protected. Judgment of February 25, 1975, 39 BVerfGE 1
(translated in Jonas & Gorby, West German Abortion Decision: A Contrast to
Roe v. Wade, 9 John Marshall J.Prac. & Proc. 605 (1976)). In 1988, the
Canadian Supreme Court followed reasoning similar to that of Roe in striking
down a law that restricted abortion. Morgentaler v. Queen, 1 S.C.R. 30, 44
D.L.R. 4th 385 (1988).
In Roe, the Court opined that the State "does have an
important and legitimate interest in preserving and protecting the health of
the pregnant woman, ... and that it has still another important and legitimate
interest in protecting *946 the
potentiality of human life." 410 U.S., at 162, 93 S.Ct., at 731 (emphasis
omitted). In the companion case of Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739,
35 L.Ed.2d 201 (1973), the Court referred to its conclusion in Roe "that a
pregnant woman does not have an absolute constitutional right to an abortion on
her demand." 410 U.S., at 189, 93 S.Ct., at 746. But while the language
and holdings of these cases appeared to leave States free to regulate abortion
procedures in a variety of ways, later decisions based on them have found
considerably less latitude for such regulations than might have been expected.
For example, after Roe, many States have sought to protect their
young citizens by requiring that a minor seeking an abortion involve her parents
in the decision. Some States have simply required notification of the parents,
whileothers have required a minor to obtain the consent of her parents. In a
number of decisions, however, the Court has substantially limited the States in
their ability to impose such requirements. With regard to parental notice
requirements, we initially held that a State could require a minor to notify
her parents before proceeding with an abortion. H. L. v. Matheson, 450 U.S.
398, 407‑410, 101 S.Ct. 1164, 1170‑1172, 67 L.Ed.2d 388 (1981).
Recently, however, we indicated that a State's ability to impose a notice
requirement actually depends on whether it requires notice of one or both
parents. We concluded that although the Constitution might allow a State to
demand that notice be given to one parent prior to an abortion, it may not
require that similar notice be given to two parents, unless the State
incorporates a judicial bypass procedure in that two‑parent requirement.
Hodgson v. Minnesota, supra.
We have treated parental consent provisions even more harshly.
Three years after Roe, we invalidated a Missouri regulation requiring that an
unmarried woman under the age of 18 obtain the consent of one of her parents
before proceeding with an abortion. We held that our abortion jurisprudence
prohibited the State from imposing such a "blanket provision ... requiring
the consent of a parent." Planned Parenthood *947 of Central Mo. v. Danforth, 428 U.S. 52, 74, 96 S.Ct. 2831,
2843, 49 L.Ed.2d 788 (1976). In Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035,
61 L.Ed.2d 797 (1979), the Court struck down a similar Massachusetts parental
consent statute. A majority of the Court indicated, however, that a State could
constitutionally require parental consent, if it alternatively allowed a
pregnant minor to obtain an abortion without parental consent by showing either
that she was mature enough to make her own decision, or that the abortion would
be in her best interests. See id., at 643‑644, 99 S.Ct., at 3048‑3049
(plurality opinion); id., at 656‑657, 99 S.Ct., at 3054‑3055
(WHITE, J., dissenting). In light of Bellotti, we have upheld one parental
consent regulation which incorporated a judicial bypass option we viewed as
sufficient, see Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft,
462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983), but have invalidated
another because of our belief that the judicial procedure did not satisfy the
dictates of Bellotti, see Akron v. Akron Center for Reproductive Health, Inc.,
462 U.S. 416, 439‑442, 103 S.Ct. 2481, 2497‑2499, 76 L.Ed.2d 687
(1983). We have never had occasion, as we have in the parental notice context,
to further parse our parental consent jurisprudence into one‑parent and
two‑parent components.
In Roe, the Court observed that certain States recognized the
right of the father to participate in the abortion decision in certain
circumstances. Because neither Roe nor Doe
**2857 involved the assertion of any paternal right, the Court expressly
stated that the case did not disturb the validity of regulations that protected
such a right. Roe v. Wade, supra, 410 U.S., at 165, n. 67, 93 S.Ct., at 732, n.
67. But three years later, in Danforth, the Court extended its abortion
jurisprudence and held that a State could not require that a woman obtain the
consent of her spouse before proceeding with an abortion. Planned Parenthood of
Central Mo. v. Danforth, 428 U.S., at 69‑71, 96 S.Ct., at 2841‑2842.
States have also regularly tried to ensure that a woman's decision
to have an abortion is an informed and well‑considered one. In Danforth,
we upheld a requirement that a woman sign a consent form prior to her abortion,
and observed that "it is desirable and imperative that [the decision] *948 be made with full knowledge of
its nature and consequences." Id., at 67, 96 S.Ct., at 2840. Since that
case, however, we have twice invalidated state statutes designed to impart such
knowledge to a woman seeking an abortion. In Akron, we held unconstitutional a
regulation requiring a physician to inform a woman seeking an abortion of the
status of her pregnancy, the development of her fetus, the date of possible
viability, the complications that could result from an abortion, and the
availability of agencies providing assistance and information with respect to
adoption and childbirth. Akron v. Akron Center for Reproductive Health, supra,
462 U.S., at 442‑445, 103 S.Ct., at 2499‑2500. More recently, in
Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S.
747, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986), we struck down a more limited
Pennsylvania regulation requiring that a woman be informed of the risks
associated with the abortion procedure and the assistance available to her if
she decided to proceed with her pregnancy, because we saw the compelled
information as "the antithesis of informed consent." Id., at 764, 106
S.Ct., at 2180. Even when a State has sought only to provide information that,
in our view, was consistent with the Roe framework, we concluded that the State
could not require that a physician furnish the information, but instead had to
alternatively allow nonphysician counselors to provide it. Akron v. Akron
Center for Reproductive Health, 462 U.S., at 448‑449, 103 S.Ct., at 2502.
In Akron as well, we went further and held that a State may not require a
physician to wait 24 hours to perform an abortion after receiving the consent
of a woman. Although the State sought to ensure that the woman's decision was
carefully considered, the Court concluded that the Constitution forbade the
State to impose any sort of delay. Id., at 449‑451, 103 S.Ct., at 2502‑2503.
We have not allowed States much leeway to regulate even the actual
abortion procedure. Although a State can require that second‑trimester
abortions be performed in outpatient clinics, see Simopoulos v. Virginia, 462
U.S. 506, 103 S.Ct. 2532, 76 L.Ed.2d 755 (1983), we concluded in Akron and
Ashcroft that a State could not *949
require that such abortions be performed only in hospitals. See Akron v. Akron
Center for Reproductive Health, supra, 462 U.S., at 437‑439, 103 S.Ct.,
at 2496‑2497; Planned Parenthood Assn. of Kansas City, Mo., Inc. v.
Ashcroft, supra, 462 U.S., at 481‑482, 103 S.Ct., at 2520. Despite the
fact that Roe expressly allowed regulation after the first trimester in
furtherance of maternal health, " 'present medical knowledge,' " in
our view, could not justify such a hospitalization requirement under the
trimester framework. Akron v. Akron Center for Reproductive Health, supra, 462
U.S., at 437, 103 S.Ct., at 2496 (quoting Roe v. Wade, supra, 410 U.S., at 163,
93 S.Ct., at 732). And in Danforth, the Court held that Missouri could not
outlaw the saline amniocentesis method of abortion, concluding that the
Missouri Legislature had "failed to appreciate and to consider several
significant facts" in making its decision. 428 U.S., at 77, 96 S.Ct., at
2845.
Although Roe allowed state regulation after the point of viability
to protect the potential **2858 life
of the fetus, the Court subsequently rejected attempts to regulate in this
manner. In Colautti v. Franklin, 439 U.S. 379, 99 S.Ct. 675, 58 L.Ed.2d 596
(1979), the Court struck down a statute that governed the determination of
viability. Id., at 390‑397, 99 S.Ct., at 683‑687. In the process,
we made clear that the trimester framework incorporated only one definition of
viability‑‑ours‑‑as we forbade States to decide that a
certain objective indicator‑‑"be it weeks of gestation or
fetal weight or any other single factor"‑‑should govern the
definition of viability. Id., at 389, 99 S.Ct., at 682. In that same case, we
also invalidated a regulation requiring a physician to use the abortion
technique offering the best chance for fetal survival when performing
postviability abortions. See id., at 397‑401, 99 S.Ct., at 686‑689;
see also Thornburgh v. American College of Obstetricians and Gynecologists, 476
U.S., at 768‑769, 106 S.Ct., at 2183 (invalidating a similar regulation).
In Thornburgh, the Court struck down Pennsylvania's requirement that a second
physician be present at postviability abortions to help preserve the health of
the unborn child, on the ground that it did not incorporate a sufficient
medical emergency exception. Id., at 769‑771, 106 S.Ct., at 2183‑2184.
Regulations governing the treatment of aborted fetuses have *950 met a similar fate. In Akron, we invalidated a provision
requiring physicians performing abortions to "insure that the remains of
the unborn child are disposed of in a humane and sanitary manner." 462
U.S., at 451, 103 S.Ct., at 2503 (internal quotation marks omitted).
Dissents in these cases expressed the view that the Court was
expanding upon Roe in imposing ever greater restrictions on the States. See
Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S., at
783, 106 S.Ct., at 2190 (Burger, C. J., dissenting) ("The extent to which
the Court has departed from the limitations expressed in Roe is readily
apparent"); id., at 814, 106 S.Ct., at 2206 (WHITE, J., dissenting)
("[T]he majority indiscriminately strikes down statutory provisions that
in no way contravene the right recognized in Roe"). And, when confronted
with state regulations of this type in past years, the Court has become
increasingly more divided: The three most recent abortion cases have not commanded
a Court opinion. See Ohio v. Akron Center for Reproductive Health, 497 U.S.
502, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990); Hodgson v. Minnesota, 497 U.S.
417, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990); Webster v. Reproductive Health
Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989).
The task of the Court of Appeals in the present cases was
obviously complicated by this confusion and uncertainty. Following Marks v.
United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), it concluded
that in light of Webster and Hodgson, the strict scrutiny standard enunciated
in Roe was no longer applicable, and that the "undue burden" standard
adopted by Justice O'CONNOR was the governing principle. This state of
confusion and disagreement warrants reexamination of the "fundamental
right" accorded to awoman's decision to abort a fetus in Roe, with its
concomitant requirement that any state regulation of abortion survive
"strict scrutiny." See Payne v. Tennessee, 501 U.S. 808, 827‑828,
111 S.Ct. 2597, 2609‑2610, 115 L.Ed.2d 720 (1991) (observing that
reexamination of constitutional decisions is appropriate when those decisions
have generated uncertainty and failed to provide clear guidance, because
"correction through legislative
*951 action is practically impossible" (internal quotation marks
omitted)); Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528,
546‑547, 557, 105 S.Ct. 1005, 1015, 1021, 83 L.Ed.2d 1016 (1985).
We have held that a liberty interest protected under the Due
Process Clause of the Fourteenth Amendment will be deemed fundamental if it is
"implicit in the concept of ordered liberty." Palko v. Connecticut,
302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 **2859 (1937). Three years earlier, in Snyder v. Massachusetts,
291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), we referred to a
"principle of justice so rooted in the traditions and conscience of our
people as to be ranked as fundamental." Id., at 105, 54 S.Ct., at 332; see
also Michael H. v. Gerald D., 491 U.S. 110, 122, 109 S.Ct. 2333, 2342, 105
L.Ed.2d 91 (1989) (plurality opinion) (citing the language from Snyder). These
expressions are admittedly not precise, but our decisions implementing this
notion of "fundamental" rights do not afford any more elaborate basis
on which to base such a classification.
In construing the phrase "liberty" incorporated in the
Due Process Clause of the Fourteenth Amendment, we have recognized that its
meaning extends beyond freedom from physical restraint. In Pierce v. Society of
Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), we held that it
included a parent's right to send a child to private school; in Meyer v.
Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), we held that it
included a right to teach a foreign language in a parochial school. Building on
these cases, we have held that the term "liberty" includes a right to
marry, Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); a
right to procreate, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62
S.Ct. 1110, 86 L.Ed. 1655 (1942); and a right to use contraceptives, Griswold
v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Eisenstadt
v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972). But a reading of
these opinions makes clear that they do not endorse any all‑encompassing
"right of privacy."
In Roe v. Wade, the Court recognized a "guarantee of personal
privacy" which "is broad enough to encompass a woman's decision
whether or not to terminate her pregnancy." 410 U.S., at 152‑153, 93
S.Ct., at 727. We are now of the view that, in terming this right fundamental,
the Court in Roe read the earlier *952
opinions upon which it based its decision much too broadly. Unlike marriage,
procreation, and contraception, abortion "involves the purposeful
termination of a potential life." Harris v. McRae, 448 U.S. 297, 325, 100
S.Ct. 2671, 2692, 65 L.Ed.2d 784 (1980). The abortion decision must therefore
"be recognized as sui generis, different in kind from the others that the
Court has protected under the rubric of personal or family privacy and
autonomy." Thornburgh v. American Collegeof Obstetricians and
Gynecologists, supra, 476 U.S., at 792, 106 S.Ct., at 2195 (WHITE, J.,
dissenting). One cannot ignore the fact that a woman is not isolated in her
pregnancy, and that the decision to abort necessarily involves the destruction
of a fetus. See Michael H. v. Gerald D., supra, 491 U.S., at 124, n. 4, 109
S.Ct., at 2342, n. 4 (To look "at the act which is assertedly the subject
of a liberty interest in isolation from its effect upon other people [is] like
inquiring whether there is a liberty interest in firing a gun where the case at
hand happens to involve its discharge into another person's body").
Nor do the historical traditions of the American people support
the view that the right to terminate one's pregnancy is
"fundamental." The common law which we inherited from England made
abortion after "quickening" an offense. At the time of the adoption
of the Fourteenth Amendment, statutory prohibitions or restrictions on abortion
were commonplace; in 1868, at least 28 of the then‑37 States and 8
Territories had statutes banning or limiting abortion. J. Mohr, Abortion in
America 200 (1978). By the turn of the century virtually every State had a law
prohibiting or restricting abortion on its books. By the middle of the present
century, a liberalization trend had set in. But 21 of the restrictive abortion
laws in effect in 1868 were still in effect in 1973 when Roe was decided, and
an overwhelming majority of the States prohibited abortion unless necessary to
preserve the life or health of the mother. Roe v. Wade, 410 U.S., at 139‑140,
93 S.Ct., at 720; id., at 176‑177, n. 2, 93 S.Ct., at 738‑739, n. 2
(REHNQUIST, J., dissenting). On this record, **2860 it can scarcely be said that any deeply rooted tradition of
relatively unrestricted abortion in our history *953 supported the classification of the right to abortion as
"fundamental" under the Due Process Clause of the Fourteenth
Amendment.
We think, therefore, both in view of this history and of our
decided cases dealing with substantive liberty under the Due Process Clause,
that the Court was mistaken in Roe when it classified a woman's decision to terminate
her pregnancy as a "fundamental right" that could be abridged only in
a manner which withstood "strict scrutiny." In so concluding, we
repeat the observation made in Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct.
2841, 92 L.Ed.2d 140 (1986):
"Nor are we inclined
to take a more expansive view of our authority to discover new fundamental
rights imbedded in the Due Process Clause. The Court is most vulnerable and
comes nearest to illegitimacy when it deals with judge‑ made
constitutional law having little or no cognizable roots in the language or
design of the Constitution." Id., at 194, 106 S.Ct., at 2846.
We believe that the sort of constitutionally imposed abortion code
of the type illustrated by our decisions following Roe is inconsistent
"with the notion of a Constitution cast in general terms, as ours is, and
usually speaking in general principles, as ours does." Webster v.
Reproductive Health Services, 492 U.S., at 518, 109 S.Ct., at 3056‑3057
(plurality opinion). The Court in Roe reached too far when it analogized the
right to abort a fetus to the rights involved in Pierce, Meyer, Loving, and
Griswold, and thereby deemed the right to abortion fundamental.
II
The joint opinion of Justices O'CONNOR, KENNEDY, and SOUTER cannot
bring itself to say that Roe was correct as an original matter, but the authors
are of the view that "the immediate question is not the soundness of Roe's
resolution of the issue, but the precedential force that must be accorded to
its holding." Ante, at 2817. Instead of claiming that Roe *954 was correct as a matter of
original constitutional interpretation, the opinion therefore contains an
elaborate discussion of stare decisis. This discussion of the principle of
stare decisis appears to be almost entirely dicta, because the joint opinion
does not apply that principle in dealing with Roe. Roe decided that a woman had
a fundamental right to an abortion. The joint opinion rejects that view. Roe
decided that abortion regulations were to be subjected to "strict
scrutiny" and could be justified only in the light of "compelling
state interests." The joint opinion rejects that view. Ante, at 2817‑2818;
see Roe v. Wade, supra, 410 U.S., at 162‑164, 93 S.Ct., at 731‑732.
Roe analyzed abortion regulation under a rigid trimester framework, a framework
which has guided this Court's decisionmaking for 19 years. The joint opinion
rejects that framework. Ante, at 2818.
Stare decisis is defined in Black's Law Dictionary as meaning
"to abide by, or adhere to, decided cases." Black's Law Dictionary
1406 (6th ed. 1990). Whatever the "central holding" of Roe that is
left after the joint opinion finishes dissecting it is surely not the result of
that principle. While purporting to adhere to precedent, the joint opinion
instead revises it. Roe continues to exist, but only in the way a storefront on
a western movie set exists: a mere facade to give the illusion of reality.
Decisions following Roe, such as Akron v. Akron Center for Reproductive Health,
Inc., 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983), and Thornburgh v.
American College of Obstetricians and Gynecologists, 476 U.S. 747, 106 S.Ct.
2169, 90 L.Ed.2d 779 (1986), are frankly overruled in part under the
"undue burden" standard expounded in the joint opinion. Ante, at 2822‑2824.
In our view, authentic principles of stare decisis do not require
that any portion of the **2861
reasoning in Roe be kept intact. "Stare decisis is not ... a universal,
inexorable command," especially in cases involving the interpretation of
the Federal Constitution. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393,
405, 52 S.Ct. 443, 446, 76 L.Ed. 815 (1932) (Brandeis, J., dissenting).
Erroneous decisions in such constitutional cases are uniquely durable, because
correction through legislative action, save for *955 constitutional amendment, is impossible. It is therefore our
duty to reconsider constitutional interpretations that "depar[t] from a
proper understanding" of the Constitution. Garcia v. San Antonio
Metropolitan Transit Authority, 469 U.S., at 557, 105 S.Ct., at 1020; see
United States v. Scott, 437 U.S. 82, 101, 98 S.Ct. 2187, 2199, 57 L.Ed.2d 65
(1978) (" '[I]n cases involving the Federal Constitution, ... [t]he Court
bows to the lessons of experience and the force of better reasoning,
recognizing that the process of trial and error, so fruitful in the physical
sciences, is appropriate also in the judicial function' " (quoting Burnet
v. Coronado Oil & Gas Co., supra, 285 U.S., at 406‑408, 52 S.Ct., at
447‑448 (Brandeis, J., dissenting))); Smith v. Allwright, 321 U.S. 649,
665, 64 S.Ct. 757, 765, 88 L.Ed. 987 (1944). Our constitutional watch does not
cease merely because we have spoken before on an issue; when it becomes clear
that a prior constitutional interpretation is unsound we are obliged to
reexamine the question. See, e.g., West Virginia Bd. of Ed. v. Barnette, 319
U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628 (1943); Erie R. Co. v.
Tompkins, 304 U.S. 64, 74‑78, 58 S.Ct. 817, 820‑822, 82 L.Ed. 1188
(1938).
The joint opinion discusses several stare decisis factors which,
it asserts, point toward retaining a portion of Roe. Two of these factors are
that the main "factual underpinning" of Roe has remained the same,
and that its doctrinal foundation is no weaker now than it was in 1973. Ante,
at 2810‑2811. Of course, what might be called the basic facts which gave
rise to Roe have remained the same‑‑women become pregnant, there is
a point somewhere, depending on medical technology, where a fetus becomes
viable, and women give birth to children. But this is only to say that the same
facts which gave rise to Roe will continue to give rise to similar cases. It is
not a reason, in and of itself, why those cases must be decided in the same
incorrect manner as was the first case to deal with the question. And surely
there is no requirement, in considering whether to depart from stare decisis in
a constitutional case, that a decision be more wrong now than it was at the
time it was rendered. If that were true, the most outlandish constitutional
decision could survive *956 forever,
based simply on the fact that it was no more outlandish later than it was when
originally rendered.
Nor does the joint opinion faithfully follow this alleged
requirement. The opinion frankly concludes that Roe and its progeny were wrong
in failing to recognize that the State's interests in maternal health and in
the protection of unborn human life exist throughout pregnancy. Ante, at 2817‑
2818. But there is no indication that these components of Roe are any more
incorrect at this juncture than they were at its inception.
The joint opinion also points to the reliance interests involved
in this context in its effort to explain why precedent must be followed for
precedent's sake. Certainly it is true that where reliance is truly at issue,
as in the case of judicial decisions that have formed the basis for private
decisions, "[c]onsiderations in favor of stare decisis are at their
acme." Payne v. Tennessee, 501 U.S., at 828, 111 S.Ct., at 2610. But, as
the joint opinion apparently agrees, ante, at 2809, any traditional notion of
reliance is not applicable here. The Court today cuts back on the protection
afforded by Roe, and no one claims that this action defeats any reliance
interest in the disavowed trimester framework. Similarly, reliance interests
would not be diminished were the Court to go further and acknowledge the full
error of Roe, as "reproductive planning could take virtually **2862 immediate account of" this
action. Ante, at 2809.
The joint opinion thus turns to what can only be described as an
unconventional‑‑and unconvincing‑‑notion of reliance, a
view based on the surmise that the availability of abortion since Roe has led
to "two decades of economic and social developments" that would be
undercut if the error of Roe wererecognized. Ante, at 2809. The joint opinion's
assertion of this fact is undeveloped and totally conclusory. In fact, one
cannot be sure to what economic and social developments the opinion is
referring. Surely it is dubious to suggest that women have reached their
"places in society" in *957
reliance upon Roe, rather than as a result of their determination to obtain
higher education and compete with men in the job market, and of society's
increasing recognition of their ability to fill positions that were previously
thought to be reserved only for men. Ante, at 2809.
In the end, having failed to put forth any evidence to prove any
true reliance, the joint opinion's argument is based solely on generalized
assertions about the national psyche, on a belief that the people of this country
have grown accustomed to the Roe decision over the last 19 years and have
"ordered their thinking and living around" it. Ante, at 2809. As an
initial matter, one might inquire how the joint opinion can view the
"central holding" of Roe as so deeply rooted in our constitutional
culture, when it so casually uproots and disposes of that same decision's
trimester framework. Furthermore, at various points in the past, the same could
have been said about this Court's erroneous decisions that the Constitution
allowed "separate but equal" treatment of minorities, see Plessy v.
Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896), or that
"liberty" under the Due Process Clause protected "freedom of
contract," see Adkins v. Children's Hospital of District of Columbia, 261
U.S. 525, 43 S.Ct. 394, 67 L.Ed. 785 (1923); Lochner v. New York, 198 U.S. 45,
25 S.Ct. 539, 49 L.Ed. 937 (1905). The "separate but equal" doctrine
lasted 58 years after Plessy, and Lochner's protection of contractual freedom
lasted 32 years. However, the simple fact that a generation or more had grown
used to these major decisions did not prevent the Court from correcting its
errors in those cases, nor should it prevent us from correctly interpreting the
Constitution here. See Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686,
98 L.Ed. 873 (1954) (rejecting the "separate but equal" doctrine);
West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703
(1937) (overruling Adkins v. Children's Hospital, supra, in upholding
Washington's minimum wage law).
Apparently realizing that conventional stare decisis principles do
not support its position, the joint opinion advances a belief that retaining a
portion of Roe is necessary to protect
*958 the "legitimacy" of this Court. Ante, at 2812‑2816.
Because the Court must take care to render decisions "grounded truly in
principle," and not simply as political and social compromises, ante, at
2814, the joint opinion properly declares it to be this Court's duty to ignore
the public criticism and protest that may arise as a result of a decision. Few
would quarrel with this statement, although it may be doubted that Members of
this Court, holding their tenure as they do during constitutional "good
behavior," are at all likely to be intimidated by such public protests.
But the joint opinion goes on to state that when the Court
"resolve[s] the sort of intensely divisive controversy reflected in Roe
and those rare, comparable cases," its decision is exempt from reconsideration
under established principles of stare decisis in constitutional cases. Ante, at
2815. This is so, the joint opinion contends, because in those "intensely
divisive" cases the Court has "call[ed] the contending sides of a
national controversy to end their national division by accepting a common
mandate rooted in the Constitution," and must therefore take special care
not to be perceived as "surrender[ing] to political pressure" and
continued opposition. Ante, at 2815. This is a truly **2863 novel principle, one which is contrary to both the Court's
historical practice and to the Court's traditional willingness to tolerate
criticism of its opinions. Under this principle, when the Court has ruled on a
divisive issue, it is apparently prevented from overruling that decision for
the sole reason that it was incorrect, unless opposition to the original
decision has died away.
The first difficulty with this principle lies in its assumption
that cases that are "intensely divisive" can be readily distinguished
from those that are not. The question of whether a particular issue is
"intensely divisive" enough to qualify for special protection is
entirely subjective and dependent on the individual assumptions of the Members
of this Court. In addition, because the Court's duty is to ignore public
opinion and criticism on issues that come before it, its Members are *959 in perhaps the worst position to
judge whether a decision divides the Nation deeply enough to justify such
uncommon protection. Although many of the Court's decisions divide the populace
to a large degree, we have not previously on that account shied away from
applying normal rules of stare decisis when urged to reconsider earlier
decisions. Over the past 21 years, for example, the Court has overruled in
whole or in part 34 of its previous constitutional decisions. See Payne v.
Tennessee, supra, at 828‑830, and n. 1, 111 S.Ct., at 2610‑2611,
and n. 1 (listing cases).
The joint opinion picks out and discusses two prior Court rulings
that it believes are of the "intensely divisive" variety, and
concludes that they are of comparable dimension to Roe. Ante, at 2812‑2814
(discussing Lochner v. New York, supra, and Plessy v. Ferguson, supra). It
appears to us very odd indeed that the joint opinion chooses as benchmarks two
cases in which the Court chose not to adhere to erroneous constitutional
precedent, but instead enhanced its stature by acknowledging and correcting its
error, apparently in violation of the joint opinion's "legitimacy"
principle. See West Coast Hotel Co. v. Parrish, supra; Brown v. Board of
Education, supra. One might also wonder how it is that the joint opinion puts
these, and not others, in the "intensely divisive" category, and how
it assumes that these are the only two lines of cases of comparable dimension
to Roe. There is no reason to think that either Plessy or Lochner produced the
sort of public protest when they were decided that Roe did. There were
undoubtedly large segments of the bench and bar who agreed with the dissenting
views in those cases, but surely that cannot be what the Court means when it
uses the term "intensely divisive," or many other cases would have to
be added to the list. In terms of public protest, however, Roe, so far as we
know, was unique. But just as the Court should not respond to that sort of
protest by retreating from the decision simply to allay the concerns of the
protesters, it should likewise not respond by determining to adhere to the *960 decision at all costs lest it
seem to be retreating under fire. Public protests should not alter the normal
application of stare decisis, lest perfectly lawful protest activity be
penalized by the Court itself.
Taking the joint opinion on its own terms, we doubt that its
distinction between Roe, on the one hand, and Plessy and Lochner, on the other,
withstands analysis. The joint opinion acknowledges that the Court improved its
stature by overruling Plessy in Brown on a deeply divisive issue. And our
decision in West Coast Hotel, which overruled Adkins v. Children's Hospital,
supra, and Lochner, was rendered at a time when Congress was considering
President Franklin Roosevelt's proposal to "reorganize" this Court
and enable him to name six additional Justices in the event that any Member of
the Court over the age of 70 did not elect to retire. It is difficult to
imagine a situation in which the Court would face more intense opposition to a
prior ruling than it did at that time, and, under the general principle
proclaimed in the joint opinion, the Court seemingly should have responded to
this opposition **2864 by stubbornly
refusing to reexamine the Lochner rationale, lest it lose legitimacy by
appearing to "overrule under fire." Ante, at 2815.
The joint opinion agrees that the Court's stature would have been
seriously damaged if in Brown and West Coast Hotel it had dug in its heels and
refused to apply normal principles of stare decisis to the earlier decisions.
But the opinion contends that the Court was entitled to overrule Plessy and
Lochner in those cases, despite the existence of opposition to the original
decisions, only because both the Nation and the Court had learned new lessons
in the interim. This is at best a feebly supported, post hoc rationalization
for those decisions.
For example, the opinion asserts that the Court could justifiably
overrule its decision in Lochner only because the Depression had convinced
"most people" that constitutional protection of contractual freedom
contributed to an economy *961 that
failed to protect the welfare of all. Ante, at 2812. Surely the joint opinion
does not mean to suggest that people saw this Court's failure to uphold minimum
wage statutes as the cause of the Great Depression! In any event, the Lochner
Court did not base its rule upon the policy judgment that an unregulated market
was fundamental to a stable economy; it simply believed, erroneously, that
"liberty" under the Due Process Clause protected the "right to
make a contract." Lochner v. New York, 198 U.S., at 53, 25 S.Ct., at 541.
Nor is it the case that the people of this Nation only discovered the dangers
of extreme laissez‑faire economics because of the Depression. State laws
regulating maximum hours and minimum wages were in existence well before that
time. A Utah statute of that sort enacted in 1896 was involved in our decision
in Holden v. Hardy, 169 U.S. 366, 18 S.Ct. 383, 42 L.Ed. 780 (1898), and other
states followed suit shortly afterwards, see, e.g., Muller v. Oregon, 208 U.S.
412, 28 S.Ct. 324, 52 L.Ed. 551 (1908); Bunting v. Oregon, 243 U.S. 426, 37
S.Ct. 435, 61 L.Ed. 830 (1917). These statutes were indeed enacted because of a
belief on the part of their sponsors that "freedom of contract" did
not protect the welfare of workers, demonstrating that that belief manifested
itself more than a generation before the Great Depression. Whether "most
people" had come to share it in the hard times of the 1930's is, insofar
as anything the joint opinion advances, entirely speculative. The crucial
failing at that time was not that workers were not paid a fair wage, but that
there was no work available at any wage.
When the Court finally recognized its error in West Coast Hotel,
it did not engage in the post hoc rationalization that the joint opinion
attributes to it today; it did not state that Lochner had been based on an economic
view that had fallen into disfavor, and that it therefore should be overruled.
Chief Justice Hughes in his opinion for the Court simply recognized what
Justice Holmes had previously recognized in his Lochner dissent, that
"[t]he Constitution does not speak of freedom of contract." West
Coast Hotel Co. v. Parrish, 300 U.S., at 391, 57 S.Ct., at 581; Lochner v. New
York, supra, 198 U.S., at 75, 25 S.Ct., at 546 (Holmes, *962 J., dissenting) ("[A] constitution is not intended to
embody a particular economic theory, whether of paternalism and the organic
relation of the citizen to the State or of laissez faire"). Although the
Court did acknowledge in the last paragraph of its opinion the state of affairs
during the then‑current Depression, the theme of the opinion is that the
Court had been mistaken as a matter of constitutional law when it embraced
"freedom of contract" 32 years previously.
The joint opinion also agrees that the Court acted properly in
rejecting the doctrine of "separate but equal" in Brown. In fact, the
opinion lauds Brown in comparing it to Roe. Ante, at 2815. This is strange, in
that under the opinion's "legitimacy" principle the Court would
seemingly have been forced to adhere to its erroneous decision in Plessy
because of its "intensely divisive" **2865 character. To us, adherence to Roe today under the guise of
"legitimacy" would seem to resemble more closely adherence to Plessy
on the same ground. Fortunately, the Court did not choose that option in Brown,
and instead frankly repudiated Plessy. The joint opinion concludes that such
repudiation was justified only because of newly discovered evidence that
segregation had the effect of treating one race as inferior to another. But it
can hardly be argued that this was not urged upon those who decided Plessy, as
Justice Harlan observed in his dissent that the law at issue "puts the
brand of servitude and degradation upon a large class of our fellow‑citizens,
our equals before the law." Plessy v. Ferguson, 163 U.S., at 562, 16
S.Ct., at 1147. It is clear that the same arguments made before the Court in
Brown were made in Plessy as well. The Court in Brown simply recognized, as
Justice Harlan had recognized beforehand, that the Fourteenth Amendment does
not permit racial segregation. The rule of Brown is not tied to popular opinion
about the evils of segregation; it is a judgment that the Equal Protection
Clause does not permit racial segregation, no matter whether the public might
come to believe that it is beneficial. On that ground it stands, and on that
ground *963 alone the Court was
justified in properly concluding that the Plessy Court had erred.
There is also a suggestion in the joint opinion that the propriety
of overruling a "divisive" decision depends in part on whether
"most people" would now agree that it should be overruled. Either the
demise of opposition or its progression to substantial popular agreement
apparently is required to allow the Court to reconsider a divisive decision.
How such agreement would be ascertained, short of a public opinion poll, the
joint opinion does not say. But surely even the suggestion is totally at war
with the idea of "legitimacy" in whose name it is invoked. The
Judicial Branch derives its legitimacy, not from following public opinion, but
from deciding by its best lights whether legislative enactments of the popular
branches of Government comport with the Constitution. The doctrine of stare
decisis is an adjunct of this duty, and should be no more subject to the
vagaries of public opinion than is the basic judicial task.
There are other reasons why the joint opinion's discussion of
legitimacy is unconvincing as well. In assuming that the Court is perceived as
"surrender[ing] to political pressure" when it overrules a controversial
decision, ante, at 2815, the joint opinion forgets that there are two sides to
any controversy. The joint opinion asserts that, in order to protect its
legitimacy, the Court must refrain from overruling a controversial decision
lest it be viewed as favoring those who oppose the decision. But a decision to
adhere to prior precedent is subject to the same criticism, for in such a case
one can easily argue that the Court is responding to those who have
demonstrated in favor of the original decision. The decision in Roe has
engendered large demonstrations, including repeated marches on this Court and
on Congress, both in opposition to and in support of that opinion. A decision
either way on Roe can therefore be perceived as favoring one group or the
other. But this perceived dilemma arises only if one assumes, as the joint
opinion does, that the Court *964
should make its decisions with a view toward speculative public perceptions. If
one assumes instead, as the Court surely did in both Brown and West Coast
Hotel, that the Court's legitimacy is enhanced by faithful interpretation of
the Constitution irrespective of public opposition, such self‑engendered
difficulties may be put to one side.
Roe is not this Court's only decision to generate conflict. Our
decisions in some recent capital cases, and in Bowers v. Hardwick, 478 U.S.
186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), have also engendered demonstrations
in opposition. The joint opinion's message to such protesters appears to be
that they must cease their activities in order to serve their cause, because
their **2866 protests will only
cement in place a decision which by normal standards of stare decisis should be
reconsidered. Nearly a century ago, Justice David J. Brewer of this Court, in
an article discussing criticism of its decisions, observed that "many
criticisms may be, like their authors, devoid of good taste, but better all
sorts of criticism than no criticism at all." Justice Brewer on "The
Nation's Anchor," 57 Albany L.J. 166, 169 (1898). This was good advice to
the Court then, as it is today. Strong and often misguided criticism of a
decision should not render the decision immune from reconsideration, lest a
fetish for legitimacy penalize freedom of expression.
The end result of the joint opinion's paeans of praise for legitimacy
is the enunciation of a brand new standard for evaluating state regulation of a
woman's right to abortion‑‑the "undue burden" standard.
As indicated above, Roe v. Wade adopted a "fundamental right"
standard under which state regulations could survive only if they met the
requirement of "strict scrutiny." While we disagree with that
standard, it at least had a recognized basis in constitutional law at the time
Roe was decided. The same cannot be said for the "undue burden"
standard, which is created largely out of whole cloth by the authors of the
joint opinion. It is a standard which even today does not command the support
of a majority of this Court. And it will not, we believe, result *965 in the sort of "simple
limitation," easily applied, which the joint opinion anticipates. Ante, at
2809. In sum, it is a standard which is not built to last.
In evaluating abortion regulations under that standard, judges
will have to decide whether they place a "substantial obstacle" in
the path of a woman seeking an abortion. Ante, at 2820. In that this standard
is based even more on a judge's subjective determinations than was the
trimester framework, the standard will do nothing to prevent "judges from
roaming at large in the constitutional field" guided only by their
personal views. Griswold v. Connecticut, 381 U.S., at 502, 85 S.Ct., at 1691
(Harlan, J., concurring in judgment). Because the undue burden standard is
plucked from nowhere, the question of what is a "substantial
obstacle" to abortion will undoubtedly engender a variety of conflicting
views. For example, in the very matter before us now, the authors of the joint
opinion would uphold Pennsylvania's 24‑hour waiting period, concluding
that a "particular burden" on some women is not a substantial
obstacle. Ante, at 2825. But the authors would at the same time strike down
Pennsylvania's spousal notice provision, after finding that in a "large
fraction" of cases the provision will be a substantial obstacle. Ante, at
2830. And, while the authors conclude that the informed consent provisions do
not constitute an "undue burden," Justice STEVENS would hold that
they do. Ante, at 2842‑2843.
Furthermore, while striking down the spousal notice regulation,
the joint opinion would uphold a parental consent restriction that certainly
places very substantial obstacles in the path of a minor's abortion choice. The
joint opinion is forthright in admitting that it draws this distinction based
on a policy judgment that parents will have the best interests of their children
at heart, while the same is not necessarily true of husbands as to their
wives. Ante, at 2829. This may or may
not be a correct judgment, but it is quintessentially a legislative one. The
"undue burden" inquiry does not in any way supply the distinction between
parental consent and *966 spousal
consent which the joint opinion adopts. Despite the efforts of the joint
opinion, the undue burden standard presents nothing more workable than the
trimester framework which it discards today. Under the guise of the
Constitution, this Court will still impart its own preferences on the States in
the form of a complex abortion code.
The sum of the joint opinion's labors in the name of stare decisis
and "legitimacy" is this: Roe v. Wade stands as a sort of judicialPotemkin
Village, which may be pointed out **2867
to passers‑by as a monument to the importance of adhering to precedent.
But behind the facade, an entirely new method of analysis, without any roots in
constitutional law, is imported to decide the constitutionality of state laws
regulating abortion. Neither stare decisis nor "legitimacy" are truly
served by such an effort.
We have stated above our belief that the Constitution does not
subject state abortion regulations to heightened scrutiny. Accordingly, we
think that the correct analysis is that set forth by the plurality opinion in
Webster. A woman's interest in having an abortion is a form of liberty
protected by the Due Process Clause, but States may regulate abortion
procedures in ways rationally related to a legitimate state interest.
Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 491, 75 S.Ct. 461,
466, 99 L.Ed. 563 (1955); cf. Stanley v. Illinois, 405 U.S. 645, 651‑653,
92 S.Ct. 1208, 1212‑1214, 31 L.Ed.2d 551 (1972). With this rule in mind,
we examine each of the challenged provisions.
III
A
Section 3205 of the Act imposes certain requirements related to
the informed consent of a woman seeking an abortion. 18 Pa.Cons.Stat. § 3205
(1990). Section 3205(a)(1) requires that the referring or performing physician
must inform a woman contemplating an abortion of (i) the nature of the
procedure and the risks and alternatives that a reasonable patient would find
material; (ii) the fetus' probable gestational *967 age; and (iii) the medical risks involved in carrying her
pregnancy to term. Section 3205(a)(2) requires a physician or a nonphysician
counselor to inform the woman that (i) the state health department publishes
free materials describing the fetus at different stages and listing abortion
alternatives; (ii) medical assistance benefits may be available for prenatal,
childbirth, and neonatal care; and (iii) the child's father is liable for child
support. The Act also imposes a 24‑hour waiting period between the time
that the woman receives the required information and the time that the
physician is allowed to perform the abortion. See Appendix to opinion of
O'CONNOR, KENNEDY, and SOUTER, JJ., ante, at 2833‑2834.
This Court has held that it is certainly within the province of
the States to require a woman's voluntary and informed consent to an abortion.
See Thornburgh v. American College of Obstetricians and Gynecologists, 476
U.S., at 760, 106 S.Ct., at 2178. Here, Pennsylvania seeks to further its
legitimate interest in obtaining informed consent by ensuring that each woman
"is aware not only of the reasons for having an abortion, but also of the
risks associated with an abortion and the availability of assistance that might
make the alternative of normal childbirth more attractive than it might
otherwise appear." Id., at 798‑799, 106 S.Ct., at 2198‑2199
(WHITE, J., dissenting).
We conclude that this provision of the statute is rationally
related to the State's interest in assuring that a woman's consent to an
abortion be a fully informed decision.
Section 3205(a)(1) requires a physician to disclose certain
information about the abortion procedure and its risks and alternatives. This
requirement is certainly no large burden, as the Court of Appeals found that
"the record shows that the clinics, without exception, insist on providing
this information to women before an abortion is performed." 947 F.2d, at
703. We are of the view that this information "clearly is related to
maternal health and to the State's legitimate purpose in requiring informed
consent." Akron v. *968 Akron
Center for Reproductive Health, Inc., 462 U.S., at 446, 103 S.Ct., at 2501. An
accurate description of the gestational age of the fetus and of the risks
involved in carrying a child to term helps to further both those interests and
the State's legitimate interest in unborn human life. See id., at 445‑446,
n. 37, 103 S.Ct., at 2500‑2501, n. 37 (required disclosure of gestational
age of the fetus "certainly is not objectionable"). Although
petitioners contend that it is unreasonable for the State to require that a
physician, as **2868 opposed to a
nonphysician counselor, disclose this information, we agree with the Court of
Appeals that a State "may rationally decide that physicians are better
qualified than counselors to impart this information and answer questions about
the medical aspects of the available alternatives." 947 F.2d, at 704.
Section 3205(a)(2) compels the disclosure, by a physician or a
counselor, of information concerning the availability of paternal child support
and state‑funded alternatives if the woman decides to proceed with her
pregnancy. Here again, the Court of Appeals observed that "the record
indicates that most clinics already require that a counselor consult in person
with the woman about alternatives to abortion before the abortion is
performed." Id., at 704‑705. And petitioners do not claim that the
information required to be disclosed by statute is in any way false or
inaccurate; indeed, the Court of Appeals found it to be "relevant,
accurate, and non‑inflammatory." Id., at 705. We conclude that this
required presentation of "balanced information" is rationally related
to the State's legitimate interest in ensuring that the woman's consent is
truly informed, Thornburgh v. American College of Obstetricians and
Gynecologists, 476 U.S., at 830, 106 S.Ct., at 2215 (O'CONNOR, J., dissenting),
and in addition furthers the State's interest in preserving unborn life. That
the information might create some uncertainty and persuade some women to forgo
abortions does not lead to the conclusion that the Constitution forbids the
provision of such information. Indeed, it only demonstrates that this
information might *969 very well
make a difference, and that it is therefore relevant to a woman's informed
choice. Cf. id., at 801, 106 S.Ct., at 2200 (WHITE, J., dissenting)
("[T]he ostensible objective of Roe v. Wade is not maximizing the number
of abortions, but maximizing choice"). We acknowledge that in Thornburgh
this Court struck down informed consent requirements similar to the ones at
issue here. See id., at 760‑764, 106 S.Ct., at 2178‑2181. It is
clear, however, that while the detailed framework of Roe led to the Court's
invalidation of those informational requirements, they "would have been
sustained under any traditional standard of judicial review, ... or for any
other surgical procedure except abortion." Webster v. Reproductive Health
Services, 492 U.S., at 517, 109 S.Ct., at 3056 (plurality opinion) (citing
Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S., at
802, 106 S.Ct., at 2200 (WHITE, J., dissenting); id., at 783, 106 S.Ct., at
2190 (Burger, C.J., dissenting)). In light of our rejection of Roe's
"fundamental right" approach to this subject, we do not regard Thornburgh
as controlling.
For the same reason, we do not feel bound to follow this Court's
previous holding that a State's 24‑hour mandatory waiting period is
unconstitutional. See Akron v. Akron Center for Reproductive Health, Inc.,
supra, 462 U.S., at 449‑451, 103 S.Ct., at 2502‑2503. Petitioners
are correct that such a provision will result in delays for some women that
might not otherwise exist, therefore placing a burden on their liberty. But the
provision in no way prohibits abortions, and the informed consent and waiting
period requirements do not apply in the case of a medical emergency. See 18
Pa.Cons.Stat. §§ 3205(a), (b) (1990). We are of the view that, in providing
time for reflection and reconsideration, the waiting period helps ensure that a
woman's decision to abort is a well‑considered one, and reasonably
furthers the State's legitimate interest in maternal health and in the unborn
life of the fetus. It "is surely a small cost to impose to ensure that the
woman's decision is well considered in light of its certain and irreparable
consequences *970 on fetal life, and
the possible effects on her own." 462 U.S., at 474, 103 S.Ct., at 2516
(O'CONNOR, J., dissenting).
B
In addition to providing her own informed consent, before an
unemancipated woman under the age of 18 may obtain an abortion she **2869 must either furnish the consent
of one of her parents, or must opt for the judicial procedure that allows her
to bypass the consent requirement. Under the judicial bypass option, a minor
can obtain an abortion if a state court finds that she is capable of giving her
informed consent and has indeed given such consent, or determines that an
abortion is in her best interests. Records of these court proceedings are kept
confidential. The Act directs the state trial court to render a decision within
three days of the woman's application, and the entire procedure, including
appeal to Pennsylvania Superior Court, is to last no longer than eight business
days. The parental consent requirement does not apply in the case of a medical
emergency. 18 Pa.Cons.Stat. § 3206 (1990). See Appendix to opinion of O'CONNOR,
KENNEDY, and SOUTER, JJ. ante, at 2834‑2835.
This provision is entirely consistent with this Court's previous
decisions involving parental consent requirements. See Planned Parenthood Assn.
of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d
733 (1983) (upholding parental consent requirement with a similar judicial
bypass option); Akron v. Akron Center for Reproductive Health, Inc., supra, 462
U.S., at 439‑440, 103 S.Ct., at 2497 (approving of parental consent
statutes that include a judicial bypass option allowing a pregnant minor to
"demonstrate that she is sufficiently mature to make the abortion decision
herself or that, despite her immaturity, an abortion would be in her best
interests"); Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d
797 (1979).
We think it beyond dispute that a State "has a strong and
legitimate interest in the welfare of its young citizens, whose immaturity,
inexperience, and lack of judgment may sometimes *971 impair their ability to exercise their rights wisely."
Hodgson v. Minnesota, 497 U.S., at 444, 110 S.Ct., at 2942 (opinion of STEVENS,
J.). A requirement of parental consent to abortion, like myriad other
restrictions placed upon minors in other contexts, is reasonably designed to
further this important and legitimate state interest. In our view, it is
entirely "rational and fair for the State to conclude that, in most
instances, the family will strive to give a lonely or even terrified minor
advice that is both compassionate and mature." Ohio v. Akron Center for
Reproductive Health, 497 U.S., at 520, 110 S.Ct., at 2984 (opinion of KENNEDY,
J.); see also Planned Parenthood of Central Mo. v. Danforth, 428 U.S., at 91,
96 S.Ct., at 2851 (Stewart, J., concurring) ("There can be little doubt
that the State furthers a constitutionally permissible end by encouraging an
unmarried pregnant minor to seek the help and advice of her parents in making the
very important decision whether or not to bear a child"). We thus conclude
that Pennsylvania's parental consent requirement should be upheld.
C
Section 3209 of the Act contains the spousal notification
provision. It requires that, before a physician may perform an abortion on a
married woman, the woman must sign a statement indicating that she has notified
her husband of her planned abortion. A woman is not required to notify her
husband if (1) her husband is not the father, (2) her husband, after diligent effort,
cannot be located, (3) the pregnancy is the result of a spousal sexual assault
that has been reported to the authorities, or (4) the woman has reason to
believe that notifying her husband is likely to result in the infliction of
bodily injury upon her by him or by another individual. In addition, a woman is
exempted from the notification requirement in the case of a medical emergency.
18 Pa.Cons.Stat. § 3209 (1990). See Appendix to opinion of O'CONNOR, KENNEDY,
and SOUTER, JJ. ante, at 2836‑2837.
*972 We first emphasize that
Pennsylvania has not imposed a spousal consent requirement of the type the
Court struck down in Planned Parenthood of Central Mo. v. Danforth, 428 U.S.,
at 67‑72, 96 S.Ct., at 2840‑2842. Missouri's spousal consent
provision was invalidated in that case because of the Court's view that it
unconstitutionally **2870 granted to
the husband "a veto power exercisable for any reason whatsoever or for no
reason at all." Id., at 71, 96 S.Ct., at 2842. But the provision here
involves a much less intrusive requirement of spousal notification, not
consent. Such a law requiring only notice to the husband "does not give
any third party the legal right to make the [woman's] decision for her, or to
prevent her from obtaining an abortion should she choose to have one
performed." Hodgson v. Minnesota, supra, 497 U.S., at 496, 110 S.Ct., at
2969 (KENNEDY, J., concurring in judgment in part and dissenting in part); see
H.L. v. Matheson, 450 U.S., at 411, n. 17, 101 S.Ct., at 1172, n. 17. Danforth
thus does not control our analysis. Petitioners contend that it should,
however; they argue that the real effect of such a notice requirement is to
give the power to husbands to veto a woman's abortion choice. The District
Court indeed found that the notification provision created a risk that some
woman who would otherwise have an abortion will be prevented from having one.
947 F.2d, at 712. For example, petitioners argue, many notified husbands will
prevent abortions through physical force, psychological coercion, and other
types of threats. But Pennsylvania has incorporated exceptions in the notice
provision in an attempt to deal with these problems. For instance, a woman need
not notify her husband if the pregnancy is the result of a reported sexual
assault, or if she has reason to believe that she would suffer bodily injury as
a result of the notification. 18 Pa.Cons.Stat. § 3209(b) (1990). Furthermore,
because this is a facial challenge to the Act, it is insufficient for
petitioners to show that the notification provision "might operate
unconstitutionally under some conceivable set of circumstances." United
States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697
(1987). Thus, it is not enough for petitioners *973 to show that, in some "worst case" circumstances,
the notice provision will operate as a grant of veto power to husbands. Ohio v.
Akron Center for Reproductive Health, 497 U.S., at 514, 110 S.Ct., at 2981.
Because they are making a facial challenge to the provision, they must
"show that no set of circumstances exists under which the [provision]
would be valid." Ibid. (internal quotation marks omitted). This they have
failed to do. [FN2]
FN2. The joint opinion of
Justices O'CONNOR, KENNEDY, and SOUTER appears
to ignore this point in concluding that the spousal notice provision imposes an
undue burden on the abortion decision. Ante, at 2826‑2831. In most
instances the notification requirement operates without difficulty. As the
District Court found, the vast majority of wives seeking abortions notify and
consult with their husbands, and thus suffer no burden as a result of the
provision. 744 F.Supp. 1323, 1360 (ED Pa.1990). In other instances where a
woman does not want to notify her husband, the Act provides exceptions. For
example, notification is not required if the husband is not the father, if the
pregnancy is the result of a reported spousal sexual assault, or if the woman
fears bodily injury as a result of notifying her husband. Thus, in these
instances as well, the notification provision imposes no obstacle to the
abortion decision.
The joint opinion puts to
one side these situations where the regulation imposes no obstacle at all, and
instead focuses on the group of married women who would not otherwise notify
their husbands and who do not qualify for one of the exceptions. Having
narrowed the focus, the joint opinion concludes that in a "large
fraction" of those cases, the notification provision operates as a
substantial obstacle, ante, at 2830, and that the provision is therefore
invalid. There are certainly instances where a woman would prefer not to notify
her husband, and yet does not qualify for
an exception. For example, there are the situations of battered women who fear
psychological abuse or injury to their children as a result of notification;
because in these situations the women do not fear bodily injury, they do not
qualify for an exception. And there are situations where a woman has become
pregnant as a result of an unreported spousal sexual assault; when such an assault
is unreported, no exception is available. But, as the District Court found,
there are also instances where the woman prefers not to notify her husband for
a variety of other reasons. See 744 F.Supp., at 1360. For example, a woman
might desire to obtain an abortion without her husband's knowledge because of
perceived economic constraints or her husband's previously expressed opposition
to abortion. The joint opinion concentrates on the situations involving
battered women and unreported spousal assault, and assumes, without any support
in the record, that these instances constitute a "large fraction" of
those cases in which women prefer not to notify their husbands (and do not
qualify for an exception). Ante, at 2830. This assumption is not based on any
hard evidence, however. And were it helpful to an attempt to reach a desired
result, one could just as easily assume that the battered women situations form
100 percent of the cases where women desire not to notify, or that they
constitute only 20 percent of those cases. But
reliance on such speculation is the necessary result of adopting the undue
burden standard.
**2871 *974 The question before us is
therefore whether the spousal notification requirement rationally furthers any
legitimate state interests. We conclude that it does. First, a husband's
interests in procreation within marriage and in the potential life of his
unborn child are certainly substantial ones. See Planned Parenthood of Central
Mo. v. Danforth, 428 U.S., at 69, 96 S.Ct., at 2841 ("We are not unaware
of the deep and proper concern and interest that a devoted and protective
husband has in his wife's pregnancy and in the growth and development of the
fetus she is carrying"); id., at 93, 96 S.Ct., at 2852 (WHITE, J., concurring
in part and dissenting in part); Skinner v. Oklahoma ex rel. Williamson, 316
U.S., at 541, 62 S.Ct., at 1113. The State itself has legitimate interests both
in protecting these interests of the father and in protecting the potential
life of the fetus, and the spousal notification requirement is reasonably
related to advancing those state interests. By providing that a husband will
usually know of his spouse's intent to have an abortion, the provision makes it
more likely that the husband will participate in deciding the fate of his
unborn child, a possibility that might otherwise have been denied him. This
participation might in some cases result in a decision to proceed with the
pregnancy. As Judge Alito observed in his dissent below, "[t]he
Pennsylvania legislature could have rationally believed that some married women
are initially inclined to obtain an abortion without their husbands' knowledge
because of perceived problems‑‑such as economic constraints, future
plans, or the husbands' previously expressed *975 opposition‑‑that may be obviated by discussion
prior to the abortion." 947 F.2d, at 726 (opinion concurring in part and
dissenting in part).
The State also has a legitimate interest in promoting "the
integrity of the marital relationship." 18 Pa.Cons.Stat. § 3209(a) (1990).
This Court has previously recognized "the importance of the marital
relationship in our society." Planned Parenthood of Central Mo. v.
Danforth, supra, 428 U.S., at 69, 96 S.Ct., at 2841. In our view, the spousal
notice requirement is a rational attempt by the State to improve truthful
communication between spouses and encourage collaborative decisionmaking, and
thereby fosters marital integrity. See Labine v. Vincent, 401 U.S. 532, 538, 91
S.Ct. 1017, 1020, 28 L.Ed.2d 288 (1971) ("[T]he power to make rules to
establish, protect, and strengthen family life" is committed to the state
legislatures). Petitioners argue that the notification requirement does not
further any such interest; they assert that the majority of wives already notify
their husbands of their abortion decisions, and the remainder have excellent
reasons for keeping their decisions a secret. In the first case, they argue,
the law is unnecessary, and in the second case it will only serve to foster
marital discord and threats of harm. Thus, petitioners see the law as a totally
irrational means of furthering whatever legitimate interest the State might
have. But, in our view, it is unrealistic to assume that every husband‑wife
relationship is either (1) so perfect that this type of truthful and important
communication will take place as a matter of course, or (2) so imperfect that,
upon notice, the husband will react selfishly, violently, or contrary to the
best interests of his wife. See Planned Parenthood of Central Mo. v. Danforth,
supra, 428 U.S., at 103‑104, 96 S.Ct., at 2857 (STEVENS, J., concurring
in part and dissenting in part) (making a similar point in the context of a
parental consent statute). The spousal notice provision will admittedly be
unnecessary in some circumstances, and possibly harmful in others, but
"the existence of particular cases in which a feature of a statute
performs no function (or is even counterproductive) *976 **2872 ordinarily does not render the statute
unconstitutional or even constitutionally suspect." Thornburgh v. American
College of Obstetricians and Gynecologists, 476 U.S., at 800, 106 S.Ct., at
2199 (WHITE, J., dissenting). The Pennsylvania Legislature was in a position to
weigh the likely benefits of the provision against its likely adverse effects,
and presumably concluded, on balance, that the provision would be beneficial.
Whether this was a wise decision or not, we cannot say that it was irrational.
We therefore conclude that the spousal notice provision comports with the
Constitution. See Harris v. McRae, 448 U.S., at 325‑326, 100 S.Ct., at
2692‑2693 ("It is not the mission of this Court or any other to
decide whether the balance of competing interests ... is wise social
policy").
D
The Act also imposes various reporting requirements. Section
3214(a) requires that abortion facilities file a report on each abortion
performed. The reports do not include the identity of the women on whom
abortions are performed, but they do contain a variety of information about the
abortions. For example, each report must include the identities of the
performing and referring physicians, the gestational age of the fetus at the
time of abortion, and the basis for any medical judgment that a medical
emergency existed. See 18 Pa.Cons.Stat. §§ 3214(a)(1), (5), (10) (1990). See
Appendix to opinion of O'CONNOR, KENNEDY, and SOUTER, JJ. ante, at 2837‑2838.
The District Court found that these reports are kept completely confidential.
947 F.2d, at 716. We further conclude that these reporting requirements rationally
further the State's legitimate interests in advancing the state of medical
knowledge concerning maternal health and prenatal life, in gathering
statistical information with respect to patients, and in ensuring compliance
with other provisions of the Act.
Section 3207 of the Act requires each abortion facility to file a
report with its name and address, as well as the names *977 and addresses of any parent, subsidiary, or affiliated
organizations. 18 Pa.Cons.Stat. § 3207(b) (1990). Section 3214(f) further
requires each facility to file quarterly reports stating the total number of
abortions performed, broken down by trimester. Both of these reports are
available to the public only if the facility received state funds within the
preceding 12 months. See Appendix to opinion of O'CONNOR, KENNEDY, and SOUTER,
JJ. ante, at 2835, 2838. Petitioners do not challenge the requirement that
facilities provide this information. They contend, however, that the forced
public disclosure of the information given by facilities receiving public funds
serves no legitimate state interest. We disagree. Records relating to the
expenditure of public funds are generally available to the public under
Pennsylvania law. See Pa.Stat.Ann., Tit. 65, §§ 66.1, 66.2 (Purdon 1959 and Supp.1991‑1992).
As the Court of Appeals observed, "[w]hen a state provides money to a
private commercial enterprise, there is a legitimate public interest in
informing taxpayers who the funds are benefiting and what services the funds
are supporting." 947 F.2d, at 718. These reporting requirements rationally
further this legitimate state interest.
E
Finally, petitioners challenge the medical emergency exception
provided for by the Act. The existence of a medical emergency exempts
compliance with the Act's informed consent, parental consent, and spousal
notice requirements. See 18 Pa.Cons.Stat. §§ 3205(a), 3206(a), 3209(c) (1990).
The Act defines a "medical emergency" as
"[t]hat condition
which, on the basis of the physician's good faith clinical judgment, so
complicates the medical condition of a pregnant woman as to necessitate the
immediate abortion of her pregnancy to avert her death or for which a delay
will create serious risk of substantial
*978 and irreversible **2873
impairment of major bodily function." § 3203.
Petitioners argued before the District Court that the statutory
definition was inadequate because it did not cover three serious conditions
that pregnant women can suffer‑‑preeclampsia, inevitable abortion,
and prematurely ruptured membrane. The District Court agreed with petitioners
that the medical emergency exception was inadequate, but the Court of Appeals
reversed this holding. In construing the medical emergency provision, the Court
of Appeals first observed that all three conditions do indeed present the risk
of serious injury or death when an abortion is not performed, and noted that
the medical profession's uniformly prescribed treatment for each of the three
conditions is an immediate abortion. See 947 F.2d, at 700‑701. Finding
that "[t]he Pennsylvania legislature did not choose the wording of its
medical emergency exception in a vacuum," the court read the exception as
intended "to assure that compliance with its abortion regulations would
not in any way pose a significant threat to the life or health of a
woman." Id., at 701. It thus concluded that the exception encompassed each
of the three dangerous conditions pointed to by petitioners.
We observe that Pennsylvania's present definition of medical
emergency is almost an exact copy of that State's definition at the time of
this Court's ruling in Thornburgh, one which the Court made reference to with
apparent approval. 476 U.S., at 771, 106 S.Ct., at 2184 ("It is clear that
the Pennsylvania Legislature knows how to provide a medical‑emergency
exception when it chooses to do so"). [FN3] We find that the
interpretation *979 of the Court of
Appeals in these cases is eminently reasonable, and that the provision thus
should be upheld. When a woman is faced with any condition that poses a "significant
threat to [her] life or health," she is exempted from the Act's consent
and notice requirements and may proceed immediately with her abortion.
FN3. The definition in use
at that time provided as follows:
" 'Medical
emergency.' That condition which, on the basis of the physician's best clinical
judgment, so complicates a pregnancy as to necessitate the immediate abortion
of same to avert the death of the mother or for which a 24‑hour delay
will create grave peril of immediate and irreversible loss of major bodily
function." Pa.Stat.Ann., Tit. 18, § 3203 (Purdon 1983).
IV
For the reasons stated, we therefore would hold that each of the
challenged provisions of the Pennsylvania statute is consistent with the
Constitution. It bears emphasis that our conclusion in this regard does not
carry with it any necessary approval of these regulations. Our task is, as
always, to decide only whether the challenged provisions of a law comport with
the United States Constitution. If, as we believe, these do, their wisdom as a
matter of public policy is for the people of Pennsylvania to decide.
Justice SCALIA, with whom THE CHIEF JUSTICE, Justice WHITE, and
Justice THOMAS join, concurring in the judgment in part and dissenting in part.
My views on this matter are unchanged from those I set forth in my
separate opinions in Webster v. Reproductive Health Services, 492 U.S. 490,
532, 109 S.Ct. 3040, 3064, 106 L.Ed.2d 410 (1989) (opinion concurring in part
and concurring in judgment), and Ohio v. Akron Center for Reproductive Health,
497 U.S. 502, 520, 110 S.Ct. 2972, 2984, 111 L.Ed.2d 405 (1990) (Akron II )
(concurring opinion). The States may, if they wish, permit abortion on demand,
but the Constitution does not require them to do so. The permissibility of abortion,
and the limitations upon it, are to be resolved like most important questions
in our democracy: by citizens trying to persuade one another and then voting.
As the Court acknowledges, "where reasonable people disagree the
government can adopt one position or the other." Ante, at 2806. The Court
is correct in adding the qualification that this "assumes a state of **2874 affairs in which the choice
does not intrude upon a protected liberty," ante, at 2807‑‑but
the crucial part of that qualification*980
is the penultimate word. A State's choice between two positions on which
reasonable people can disagree is constitutional even when (as is often the
case) it intrudes upon a "liberty" in the absolute sense. Laws
against bigamy, for example‑‑with which entire societies of
reasonable people disagree‑‑intrude upon men and women's liberty to
marry and live with one another. But bigamy happens not to be a liberty
specially "protected" by the Constitution.
That is, quite simply, the issue in these cases: not whether the
power of a woman to abort her unborn child is a "liberty" in the
absolute sense; or even whether it is a liberty of great importance to many
women. Of course it is both. The issue is whether it is a liberty protected by
the Constitution of the United States. I am sure it is not. I reach that
conclusion not because of anything so exalted as my views concerning the
"concept of existence, of meaning, of the universe, and of the mystery of
human life." Ibid. Rather, I reach it for the same reason I reach the
conclusion that bigamy is not constitutionally protected‑‑because
of two simple facts: (1) the Constitution says absolutely nothing about it, and
(2) the longstanding traditions of American society have permitted it to be
legally proscribed. [FN1] Akron II, supra, at 520, 110 S.Ct., at 2984 (SCALIA,
J., concurring).
FN1. The Court's
suggestion, ante, at 2805, that adherence to tradition would require us to
uphold laws against interracial marriage is entirely wrong. Any tradition in
that case was contradicted by a text ‑‑an Equal Protection Clause
that explicitly establishes racial equality as a constitutional value. See
Loving v. Virginia, 388 U.S. 1, 9, 87 S.Ct. 1817, 1822, 18 L.Ed.2d 1010 (1967)
("In the case at bar, ... we deal with statutes containing racial
classifications, and the fact of equal application does not immunize the
statute from the very heavy burden of
justification which the Fourteenth Amendment has traditionally required of
state statutes drawn according to race"); see also id., at 13, 87 S.Ct.,
at 1824 (Stewart, J., concurring in judgment). The enterprise launched in Roe
v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), by contrast, sought
to establish ‑‑in the teeth of a clear, contrary tradition‑‑a
value found nowhere in the constitutional text.
There is, of course, no
comparable tradition barring recognition of a "liberty interest" in
carrying one's child to term free from state efforts to kill it. For that
reason, it does not follow that the Constitution does not protect childbirth
simply because it does not protect abortion. The Court's contention, ante, at
2811, that the only way to protect childbirth is to protect abortion shows the
utter bankruptcy of constitutional analysis deprived of tradition as a
validating factor. It drives one to say that the only way to protect the right
to eat is to acknowledge the constitutional right to starve oneself to death.
*981 The Court destroys the
proposition, evidently meant to represent my position, that "liberty"
includes "only those practices, defined at the most specific level, that
were protected against government interference by other rules of law when the
Fourteenth Amendment was ratified," ante, at 2805 (citing Michael H. v.
Gerald D., 491 U.S. 110, 127, n. 6, 109 S.Ct. 2333, 2344, n. 6, 105 L.Ed.2d 91
(1989) (opinion of SCALIA, J.)). That is not, however, what Michael H. says; it
merely observes that, in defining "liberty," we may not disregard a
specific, "relevant tradition protecting, or denying protection to, the asserted
right," ibid. But the Court does not wish to be fettered by any such
limitations on its preferences. The Court's statement that it is
"tempting" to acknowledge the authoritativeness of tradition in order
to "cur[b] the discretion of federal judges," ante, at 2804, is of
course rhetoric rather than reality; no government official is
"tempted" to place restraints upon his own freedom of action, which
is why Lord Acton did not say "Power tends to purify." The Court's
temptation is in the quite opposite and more natural direction‑‑towards
systematically eliminating checks upon its own power; and it succumbs.
Beyond that brief summary of the essence of my position, I will
not swell the United States Reports with repetition of what I have **2875 said before; and applying the
rational basis test, I would uphold the Pennsylvania statute in its entirety. I
must, however, respond to a few of the more outrageous arguments in today's
opinion, which it is beyond human nature to leave unanswered. I shall discuss each
of them under a quotation from the Court's opinion to which they pertain.
"The inescapable fact is that adjudication of substantive due
process claims may call upon the Court
*982 in interpreting the Constitution to exercise that same capacity which
by tradition courts always have exercised: reasoned judgment." Ante, at
2806.
Assuming that the question before us is to be resolved at such a
level of philosophical abstraction, in such isolation from the traditions of
American society, as by simply applying "reasoned judgment," I do not
see how that could possibly have produced the answer the Court arrived at in
Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Today's opinion
describes the methodology of Roe, quite accurately, as weighing against the
woman's interest the State's " 'important and legitimate interest in
protecting the potentiality of human life.' " Ante, at 2817 (quoting Roe,
supra, at 162, 93 S.Ct., at 731). But "reasoned judgment" does not
begin by begging the question, as Roe and subsequent cases unquestionably did
by assuming that what the State is protecting is the mere "potentiality of
human life." See, e.g., Roe, supra, at 162, 93 S.Ct., at 731; Planned
Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 61, 96 S.Ct. 2831, 2837, 49
L.Ed.2d 788 (1976); Colautti v. Franklin, 439 U.S. 379, 386, 99 S.Ct. 675, 681,
58 L.Ed.2d 596 (1979); Akron v. Akron Center for Reproductive Health, Inc., 462
U.S. 416, 428, 103 S.Ct. 2481, 2491, 76 L.Ed.2d 687 (1983) (Akron I ); Planned Parenthood
Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 482, 103 S.Ct. 2517,
2520, 76 L.Ed.2d 733 (1983). The whole argument of abortion opponents is that
what the Court calls the fetus and what others call the unborn child is a human
life. Thus, whatever answer Roe came up with after conducting its
"balancing" is bound to be wrong, unless it is correct that the human
fetus is in some critical sense merely potentially human. There is of course no
way to determine that as a legal matter; it is in fact a value judgment. Some
societies have considered newborn children not yet human, or the incompetent
elderly no longer so.
The authors of the joint opinion, of course, do not squarely
contend that Roe v. Wade was a correct application of "reasoned judgment";
merely that it must be followed, because of stare decisis. Ante, at 2808, 2812,
2817. But in theirexhaustive discussion of all the factors that go into the
determination *983 of when stare
decisis should be observed and when disregarded, they never mention "how
wrong was the decision on its face?" Surely, if "[t]he Court's power
lies ... in its legitimacy, a product of substance and perception," ante,
at 2814, the "substance" part of the equation demands that plain error
be acknowledged and eliminated. Roe was plainly wrong‑‑even on the
Court's methodology of "reasoned judgment," and even more so (of
course) if the proper criteria of text and tradition are applied.
The emptiness of the "reasoned judgment" that produced
Roe is displayed in plain view by the fact that, after more than 19 years of
effort by some of the brightest (and most determined) legal minds in the
country, after more than 10 cases upholding abortion rights in this Court, and
after dozens upon dozens of amicus briefs submitted in these and other cases,
the best the Court can do to explain how it is that the word
"liberty" must be thought to include the right to destroy human
fetuses is to rattle off a collection of adjectives that simply decorate a
value judgment and conceal a political choice. The right to abort, we are told,
inheres in "liberty" because it is among "a person's most basic
decisions," ante, at 2806; it involves a "most intimate and personal
choic[e]," ante, at 2807; it is "central to personal dignity and **2876 autonomy," ibid.; it
"originate[s] within the zone of conscience and belief," ibid.; it is
"too intimate and personal" for state interference, ante, at 2807; it
reflects "intimate views" of a "deep, personal character,"
ante, at 2808; it involves "intimate relationships" and notions of
"personal autonomy and bodily integrity," ante, at 2810; and it
concerns a particularly " 'important decisio[n],' " ante, at 2811
(citation omitted). [FN2] But it is *984
obvious to anyone applying "reasoned judgment" that the same
adjectives can be applied to many forms of conduct that this Court (including
one of the Justices in today's majority, see Bowers v. Hardwick, 478 U.S. 186,
106 S.Ct. 2841, 92 L.Ed.2d 140 (1986)) has held are not entitled to
constitutional protection‑‑because, like abortion, they are forms
of conduct that have long been criminalized in American society. Those
adjectives might be applied, for example, to homosexual sodomy, polygamy, adult
incest, and suicide, all of which are equally "intimate" and
"deep[ly] personal" decisions involving "personal autonomy and
bodily integrity," and all of which can constitutionally be proscribed
because it is our unquestionable constitutional tradition that they are
proscribable. It is not reasoned judgment that supports the Court's decision;
only personal predilection. Justice Curtis's warning is as timely today as it
was 135 years ago:
FN2. Justice BLACKMUN's
parade of adjectives is similarly empty: Abortion is among " 'the most
intimate and personal choices,' " ante, at 2844; it is a matter
"central to personal dignity and autonomy," ibid.; and it involves
"personal decisions that profoundly affect bodily integrity, identity, and
destiny," ante, at 2846. Justice STEVENS is not much less conclusory: The
decision to choose abortion is a matter of "the highest privacy and the
most personal nature," ante, at 2840; it involves a " 'difficult
choice having serious and personal consequences of major importance to [a woman's] future,' " ibid.; the authority to
make this "traumatic and yet empowering decisio[n]" is "an
element of basic human dignity," ibid.; and it is "nothing less than
a matter of conscience," ibid.
"[W]hen a strict
interpretation of the Constitution, according to the fixed rules which govern
the interpretation of laws, is abandoned, and the theoretical opinions of
individuals are allowed to control its meaning, we have no longer a
Constitution; we are under the government of individual men, who for the time
being have power to declare what the Constitution is, according to their own
views of what it ought to mean." Dred Scott v. Sandford, 19 How. 393, 621,
15 L.Ed. 691 (1857) (dissenting opinion).
"Liberty finds no refuge in a jurisprudence of doubt."
Ante, at 2803.
One might have feared to encounter this august and sonorous phrase
in an opinion defending the real Roe v. Wade, rather than the revised version
fabricated today by the authors *985
of the joint opinion. The shortcomings of Roe did not include lack of clarity:
Virtually all regulation of abortion before the third trimester was invalid.
But to come across this phrase in the joint opinion‑‑which calls
upon federal district judges to apply an "undue burden" standard as
doubtful in application as it is unprincipled in origin‑‑is really
more than one should have to bear.
The joint opinion frankly concedes that the amorphous concept of
"undue burden" has been inconsistently applied by the Members of this
Court in the few brief years since that "test" was first explicitly
propounded by Justice O'CONNOR in her dissent in Akron I, 462 U.S. 416, 103
S.Ct. 2481, 76 L.Ed.2d 687 (1983). See ante, at 2820. [FN3] Because the three
Justices now wish to "set forth a standard **2877 of general application," the joint opinion announces
that "it is important to clarify what is meant by an undue burden."
Ibid. I certainly agree with that, but I do not agree that the joint opinion
succeeds in the announced endeavor. To the contrary, its efforts at
clarification *986 make clear only
that the standard is inherently manipulable and will prove hopelessly
unworkable in practice.
FN3. The joint opinion is
clearly wrong in asserting, ante, at 2819, that "the Court's early
abortion cases adhered to" the "undue burden" standard. The
passing use of that phrase in Justice BLACKMUN's opinion for the Court in
Bellotti v. Baird, 428 U.S. 132, 147, 96 S.Ct. 2857, 2866, 49 L.Ed.2d 844
(1976) (Bellotti I ), was not by way of setting forth the standard of
unconstitutionality, as Justice O'CONNOR's later opinions did, but by way of
expressing the conclusion of unconstitutionality. Justice Powell for a time appeared to employ
a variant of "undue burden" analysis in several nonmajority opinions,
see, e.g., Bellotti v. Baird, 443 U.S. 622, 647, 99 S.Ct. 3035, 3050, 61
L.Ed.2d 797 (1979) (Bellotti II ); Carey v. Population Services International,
431 U.S. 678, 705, 97 S.Ct. 2010, 2026, 52 L.Ed.2d 675 (1977) (Powell, J.,
concurring in part and concurring in judgment), but he too ultimately rejected
that standard in his opinion for the Court in Akron v. Akron Center for
Reproductive Health, Inc., 462 U.S. 416, 420, n. 1, 103 S.Ct. 2481, 2487, n. 1,
76 L.Ed.2d 687 (1983) (Akron I ). The joint opinion's reliance on Maher v. Roe,
432 U.S. 464, 473, 97 S.Ct. 2376, 2382, 53 L.Ed.2d 484 (1977), and Harris v.
McRae, 448 U.S. 297, 314, 100 S.Ct. 2671, 2686, 65 L.Ed.2d 784 (1980), is
entirely misplaced, since those cases did not involve regulation of abortion,
but mere refusal to fund it. In any event, Justice O'CONNOR's earlier
formulations have apparently now proved unsatisfactory to the three Justices,
who‑‑in the name of stare decisis no less‑‑today find
it necessary to devise an entirely new version of "undue burden"
analysis. See ante, at 2820‑2821.
The joint opinion explains that a state regulation imposes an
"undue burden" if it "has the purpose or effect of placing a
substantial obstacle in the path of a woman seeking an abortion of a nonviable
fetus." Ibid.; see also ante, at 2820‑2821. An obstacle is
"substantial," we are told, if it is "calculated[,] [not] to
inform the woman's free choice, [but to] hinder it." Ante, at 2820. [FN4]
This latter statement cannot *987
possibly mean what it says. Any regulation of abortion that is intended to
advance what the joint opinion concedes is the State's "substantial"
interest in protecting unborn life will be "calculated [to] hinder" a
decision to have an abortion. It thus seems more accurate to say that the joint
opinion would uphold abortion regulations only if they do not unduly hinder the
woman's decision. That, of course, brings us right back to square one: Defining
an "undue burden" as an "undue hindrance" (or a
"substantial obstacle") hardly "clarifies" the **2878 test. Consciously or not, the
joint opinion's verbal shell game will conceal raw judicial policy choices
concerning what is "appropriate" abortion legislation.
FN4. The joint opinion
further asserts that a law imposing an undue burden on abortion decisions is
not a "permissible" means of serving "legitimate" state
interests. Ante, at 2820. This description of the undue burden standard in
terms more commonly associated with the rational‑basis test will come as
a surprise even to those who have followed closely our wanderings in this forsaken wilderness. See, e.g., Akron I,
supra, 462 U.S., at 463, 103 S.Ct., at 2510 (O'CONNOR, J., dissenting)
("The 'undue burden' ... represents the required threshold inquiry that
must be conducted before this Court can require a State to justify its
legislative actions under the exacting 'compelling state interest'
standard"); see also Hodgson v. Minnesota, 497 U.S. 417, 458‑460,
110 S.Ct. 2926, 2949‑ 2950, 111 L.Ed.2d 344 (1990) (O'CONNOR, J.,
concurring in part and concurring in judgment in part); Thornburgh v. American
College of Obstetricians and Gynecologists, 476 U.S. 747, 828, 106 S.Ct. 2169,
2214, 90 L.Ed.2d 779 (1986) (O'CONNOR, J., dissenting). This confusing equation
of the two standards is apparently designed to explain how one of the Justices
who joined the plurality opinion in Webster v. Reproductive Health Services,
492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989), which adopted the
rational‑basis test, could join an opinion expressly adopting the undue
burden test. See id., at 520, 109 S.Ct., at 3058 (rejecting the view that
abortion is a "fundamental right," instead inquiring whether a law
regulating the woman's "liberty interest" in abortion is
"reasonably designed" to further "legitimate" state ends).
The same motive also apparently underlies the joint opinion's erroneous
citation of the plurality opinion in Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 506,
110 S.Ct. 2972, 2977, 111 L.Ed.2d 405 (1990) (Akron II ) (opinion of KENNEDY,
J.), as applying the undue burden test. See ante, at 2820 (using this citation
to support the proposition that "two of us"‑‑i.e., two of
the authors of the joint opinion‑‑have previously applied this
test). In fact, Akron II does not mention the undue burden standard until the
conclusion of the opinion, when it states that the statute at issue "does not
impose an undue, or otherwise unconstitutional, burden." 497 U.S., at 519,
110 S.Ct., at 2983 (emphasis added). I fail to see how anyone can think that
saying a statute does not impose an unconstitutional burden under any standard,
including the undue burden test, amounts to adopting the undue burden test as
the exclusive standard. The Court's citation of Hodgson as reflecting Justice
KENNEDY's and Justice O'CONNOR's "shared premises," ante, at 2821, is
similarly inexplicable, since the word "undue" was never even used in
the former's opinion in that case. I joined Justice KENNEDY's opinions in both
Hodgson and Akron II; I should be grateful, I suppose, that the joint opinion
does not claim that I, too, have adopted the undue burden test.
The ultimately standardless nature of the "undue burden"
inquiry is a reflection of the underlying fact that the concept has no
principled or coherent legal basis. As THE CHIEF JUSTICE points out, Roe's
strict‑ scrutiny standard "at least had a recognized basis in constitutional
law at the time Roe was decided," ante, at 2866, while "[t]he same
cannot be said for the 'undue burden' standard, which is created largely out of
whole cloth by the authors of the joint opinion," ibid. The joint opinion
is flatly wrong in asserting that "our jurisprudence relating to all
liberties save perhaps abortion has recognized" the permissibility of laws
that do not impose an "undue burden." Ante, at 2818. It argues that
the abortion right is similar to other rights in that a law "not designed
to strike at the right itself, [but which] has the incidental effect of making
it more difficult or more expensive to [exercise the right,]" is not
invalid. Ante, at 2819. I agree, indeed I have *988 forcefully urged, that a law of general applicability which
places only an incidental burden on a fundamental right does not infringe that
right, see R.A.V. v. St. Paul, 505 U.S. 377, 389‑390, 112 S.Ct. 2538,
2546‑2547, 120 L.Ed.2d 305 (1992); Employment Div., Dept. of Human
Resources of Ore. v. Smith, 494 U.S. 872, 878‑882, 110 S.Ct. 1595, 1599‑1602,
108 L.Ed.2d 876 (1990), but that principle does not establish the quite
different (and quite dangerous) proposition that a law which directly regulates
a fundamental right will not be found to violate the Constitution unless it
imposes an "undue burden." It is that, of course, which is at issue
here: Pennsylvania has consciously and directly regulated conduct that our
cases have held is constitutionally protected. The appropriate analogy,
therefore, is that of a state law requiring purchasers of religious books to
endure a 24‑hour waiting period, or to pay a nominal additional tax of 1
cents. The joint opinion cannot possibly be correct in suggesting that we would
uphold such legislation on the ground that it does not impose a
"substantial obstacle" to the exercise of First Amendment rights. The
"undue burden" standard is not at all the generally applicable
principle the joint opinion pretends it to be; rather, it is a unique concept
created specially for these cases, to preserve some judicial foothold in this
ill‑gotten territory. In claiming otherwise, the three Justices show
their willingness to place all constitutional rights at risk in an effort to
preserve what they deem the "central holding in Roe." Ante, at 2818.
The rootless nature of the "undue burden" standard, a
phrase plucked out of context from our earlier abortion decisions, see n. 3,
supra, is further reflected in the fact that the joint opinion finds it necessary
expressly to repudiate the more narrow formulations used in Justice O'CONNOR's
earlier opinions. Ante, at 2820. Those opinions stated that a statute imposes
an "undue burden" if it imposes "absolute obstacles or severe
limitations on the abortion decision," Akron I, 462 U.S., at 464, 103
S.Ct., at 2510 (dissenting opinion) (emphasis added); see also Thornburgh v.
American College of Obstetricians and Gynecologists, 476 U.S. 747, 828, 106
S.Ct. 2169, 2214, 90 L.Ed.2d 779 (1986) (dissenting *989 opinion). Those strong adjectives are conspicuously missing
from the joint opinion, whose authors have for some unexplained reason now
determined that a burden is "undue" if it merely imposes a
"substantial" obstacle to abortion decisions. See, e.g., ante, at
2830, 2833. Justice O'CONNOR has also abandoned (again without explanation) the
view she expressed in Planned Parenthood Assn. of Kansas City, Mo., Inc. v.
Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983) (dissenting
opinion), that a medical regulation which imposes an "undue burden"
could nevertheless be upheld if it "reasonably relate[s] to the
preservation and protection of maternal health," id., at 505, 103 S.Ct.,
at 2532 (citation and internal quotation marks omitted). In today's version, **2879 even health measures will be
upheld only "if they do not constitute an undue burden," ante, at
2821 (emphasis added). Gone too is Justice O'CONNOR's statement that "the
State possesses compelling interests in the protection of potential human life
... throughout pregnancy," Akron I, supra, 462 U.S., at 461, 103 S.Ct., at
2509 (dissenting opinion) (emphasis added); see also Ashcroft, supra, 462 U.S.,
at 505, 103 S.Ct., at 2532 (O'CONNOR, J., concurring in judgment in part and
dissenting in part); Thornburgh, supra,
476 U.S., at 828, 106 S.Ct., at 2214 (O'CONNOR, J., dissenting); instead, the
State's interest in unborn human life is stealthily downgraded to a merely
"substantial" or "profound" interest, ante, at 2820, 2821.
(That had to be done, of course, since designating the interest as "compelling"
throughout pregnancy would have been, shall we say, a "substantial
obstacle" to the joint opinion's determined effort to reaffirm what it
views as the "central holding" of Roe. See Akron I, 462 U.S., at 420,
n. 1, 103 S.Ct., at 2487, n. 1.) And "viability" is no longer the
"arbitrary" dividing line previously decried by Justice O'CONNOR in
Akron I, id., at 461, 103 S.Ct., at 2509; the Court now announces that
"the attainment of viability may continue to serve as the critical
fact," ante, at 2811. [FN5] It is difficult to *990 maintain the illusion that we are interpreting a Constitution
rather than inventing one, when we amend its provisions so breezily.
FN5. Of course Justice
O'CONNOR was correct in her former view. The arbitrariness of the viability
line is confirmed by the Court's inability to offer any justification for it
beyond the conclusory assertion that it is only at that point that the unborn
child's life "can in reason and all
fairness" be thought to override the interests of the mother. Ante, at
2817. Precisely why is it that, at the magical second when machines currently
in use (though not necessarily available to the particular woman) are able to
keep an unborn child alive apart from its mother, the creature is suddenly able
(under our Constitution) to be protected by law, whereas before that magical
second it was not? That makes no more sense than according infants legal
protection only after the point when they can feed themselves.
Because the portion of the joint opinion adopting and describing
the undue burden test provides no more useful guidance than the empty phrases
discussed above, one must turn to the 23 pages applying that standard to the
present facts for further guidance. In evaluating Pennsylvania's abortion law,
the joint opinion relies extensively on the factual findings of the District
Court, and repeatedly qualifies its conclusions by noting that they are
contingent upon the record developed in these cases. Thus, the joint opinion
would uphold the 24‑hour waiting period contained in the Pennsylvania
statute's informed consent provision, 18 Pa.Cons.Stat. § 3205 (1990), because
"the record evidence shows that in the vast majority of cases, a 24‑hour
delay does not create any appreciable health risk," ante, at 2825. The
three Justices therefore conclude that "on the record before us, ... we
are not convinced that the 24‑hour waiting period constitutes an undue
burden." Ante, at 2826. The requirement that a doctor provide the
information pertinent to informed consent would also be upheld because
"there is no evidence on this record that [this requirement] would amount
in practical terms to a substantial obstacle to a woman seeking an
abortion." Ante, at 2824. Similarly, the joint opinion would uphold the
reporting requirements of the Act, §§ 3207, 3214, because "there is no ...
showing on the record before us" that these requirements constitute a
"substantial obstacle" *991
to abortion decisions. Ante, at 2833. But at the same time the opinion
pointedly observes that these reporting requirements may increase the costs of
abortions and that "at some point [that fact] could become a substantial
obstacle." Ibid. Most significantly, the joint opinion's conclusion that
the spousal notice requirement of the Act, see § 3209, imposes an "undue
burden" is based in large measure on the District Court's "detailed
findings of fact," which the joint opinion sets out at great length, ante,
at 2826‑2828.
**2880 I do not, of course, have
any objection to the notion that, in applying legal principles, one should rely
only upon the facts that are contained in the record or that are properly
subject to judicial notice. [FN6] But what is remarkable about the joint
opinion's fact‑intensive analysis is that it does not result in any
measurable clarification of the "undue burden" standard. Rather, the
approach of the joint opinion is, for the most part, simply to highlight
certain facts in the record that apparently strike the three Justices as
particularly significant in establishing (or refuting) the existence of an
undue burden; after describing these facts, the opinion then simply announces
that the provision either does or does not impose a "substantial
obstacle" or an "undue burden." See, e.g., ante, at 2822, 2824,
2825‑2826, 2828‑2829, 2830, 2833. We do not know whether the same
conclusions could have been reached on a different record, or in what respects
the record would have had to differ before an opposite conclusion would have
been *992 appropriate. The
inherently standardless nature of this inquiry invites the district judge to
give effect to his personal preferences about abortion. By finding and relying
upon the right facts, he can invalidate, it would seem, almost any abortion
restriction that strikes him as "undue"‑‑ subject, of
course, to the possibility of being reversed by a court of appeals or Supreme
Court that is as unconstrained in reviewing his decision as he was in making
it.
FN6. The joint opinion is
not entirely faithful to this principle, however. In approving the District
Court's factual findings with respect
to the spousal notice provision, it relies extensively on nonrecord materials,
and in reliance upon them adds a number of factual conclusions of its own.
Ante, at 2827‑2829. Because this additional factfinding pertains to
matters that surely are "subject to reasonable dispute," Fed.Rule
Evid. 201(b), the joint opinion must be operating on the premise that these are
"legislative" rather than "adjudicative" facts, see Rule
201(a). But if a court can find an undue burden simply by selectively string‑citing
the right social science articles, I do not see the point of emphasizing or
requiring "detailed factual findings" in the District Court.
To the extent I can discern any meaningful content in the
"undue burden" standard as applied in the joint opinion, it appears
to be that a State may not regulate abortion in such a way as to reduce
significantly its incidence. The joint opinion repeatedly emphasizes that an
important factor in the "undue burden" analysis is whether the
regulation "prevent[s] a significant number of women from obtaining an
abortion," ante, at 2829; whether a "significant number of women ...
are likely to be deterred from procuring an abortion," ibid.; and whether
the regulation often "deters" women from seeking abortions, ante, at
2830‑2831. We are not told, however, what forms of "deterrence"
are impermissible or what degree of success in deterrence is too much to be
tolerated. If, for example, a State required a woman to read a pamphlet
describing, with illustrations, the facts of fetal development before she could
obtain an abortion, the effect of such legislation might be to
"deter" a "significant number of women" from procuring
abortions, thereby seemingly allowing a district judge to invalidate it as an
undue burden. Thus, despite flowery rhetoric about the State's
"substantial" and "profound" interest in "potential
humanlife," and criticism of Roe for undervaluing that interest, the joint
opinion permits the State to pursue that interest only so long as it is not too
successful. As Justice BLACKMUN recognizes (with evident hope), ante, at 2845,
the "undue burden" standard may ultimately require the invalidation
of each provision upheld today if it can be shown, on a better record, that the
State is too effectively "express[ing] a preference *993 for childbirth over abortion," ante, at 2824. Reason
finds no refuge in this jurisprudence of confusion.
"While we appreciate the weight of the arguments ... that Roe
should be overruled, the reservations any of us may have in reaffirming the
central holding of Roe **2881 are
outweighed by the explication of individual liberty we have given combined with
the force of stare decisis." Ante, at 2808.
The Court's reliance upon stare decisis can best be described as
contrived. It insists upon the necessity of adhering not to all of Roe, but
only to what it calls the "central holding." It seems to me that
stare decisis ought to be applied even to the doctrine of stare decisis, and I
confess never to have heard of this new, keep‑what‑you‑want‑and‑throw‑away‑the‑
rest version. I wonder whether, as applied to Marbury v. Madison, 1 Cranch 137,
2 L.Ed. 60 (1803), for example, the new version of stare decisis would be
satisfied if we allowed courts to review the constitutionality of only those
statutes that (like the one in Marbury) pertain to the jurisdiction of the
courts.
I am certainly not in a good position to dispute that the Court
has saved the "central holding" of Roe, since to do that effectively
I would have to know what the Court has saved, which in turn would require me
to understand (as I do not) what the "undue burden" test means. I
must confess, however, that I have always thought, and I think a lot of other
people have always thought, that the arbitrary trimester framework, which the
Court today discards, was quite as central to Roe as the arbitrary viability
test, which the Court today retains. It seems particularly ungrateful to carve
the trimester framework out of the core of Roe, since its very rigidity (in
sharp contrast to the utter indeterminability of the "undue burden"
test) is probably the only reason the Court is able to say, in urging stare
decisis, that Roe "has in no sense proven 'unworkable,' " ante, at
2809. I suppose the *994 Court is
entitled to call a "central holding" whatever it wants to call a
"central holding"‑‑which is, come to think of it, perhaps
one of the difficulties with this modified version of stare decisis. I thought
I might note, however, that the following portions of Roe have not been saved:
. Under Roe, requiring that a woman seeking an abortion be
provided truthful information about abortion before giving informed written
consent is unconstitutional, if the information is designed to influence her choice.
Thornburgh, 476 U.S., at 759‑765, 106 S.Ct., at 2178‑2181; Akron I,
462 U.S., at 442‑445, 103 S.Ct., at 2499‑2500. Under the joint
opinion's "undue burden" regime (as applied today, at least) such a
requirement is constitutional. Ante, at 2822‑2825.
. Under Roe, requiring that information be provided by a doctor,
rather than by nonphysician counselors, is unconstitutional, Akron I, supra, at
446‑449, 103 S.Ct., at 2501‑2502. Under the "undue
burden" regime(as applied today, at least) it is not. Ante, at 2824.
. Under Roe, requiring a 24‑hour waiting period between the
time the woman gives her informed consent and the time of the abortion is
unconstitutional. Akron I, supra, at 449‑451, 103 S.Ct., at 2502‑2503.
Under the "undue burden" regime (as applied today, at least) it is
not. Ante, at 2825‑2826.
. Under Roe, requiring detailed reports that include demographic
data about each woman who seeks an abortion and various information about each
abortion is unconstitutional. Thornburgh, supra, 476 U.S., at 765‑768,
106 S.Ct., at 2181‑2183. Under the "undue burden" regime (as
applied today, at least) it generally is not. Ante, at 2832‑2833.
"Where, in the performance of its judicial duties, the Court
decides a case in such a way as to resolve the sort of intensely divisive
controversy reflected in Roe ..., its decision has a dimension that the
resolution of the normal case does not carry. It is the dimension present
whenever the Court's interpretation of the Constitution calls the contending
sides of a *995 national controversy
to end their national division by accepting a common mandate rooted in the
Constitution." Ante, at 2815.
**2882 The Court's description
of the place of Roe in the social history of the United States is
unrecognizable. Not only did Roe not, as the Court suggests, resolve the deeply
divisive issue of abortion; it did more than anything else to nourish it, by
elevating it to the national level where it is infinitely more difficult to
resolve. National politics were not plagued by abortion protests, national
abortion lobbying, or abortion marches on Congress before Roe v. Wade was
decided. Profound disagreement existed among our citizens over the issue‑‑as
it does over other issues, such as the death penalty‑‑but that
disagreement was being worked out at the state level. As with many other
issues, the division of sentiment within each State was not as closely balanced
as it was among the population of the Nation as a whole, meaning not only that
more people would be satisfied with the results of state‑ by‑state
resolution, but also that those results would be more stable. Pre‑ Roe,
moreover, political compromise was possible.
Roe's mandate for abortion on demand destroyed the compromises of
the past, rendered compromise impossible for the future, and required the
entire issue to be resolved uniformly, at the national level. At the same time,
Roe created a vast new class of abortion consumers and abortion proponents by
eliminating the moral opprobrium that had attached to the act. ("If the
Constitution guarantees abortion, how can it be bad?"‑‑not an
accurate line of thought, but a natural one.) Many favor all of those
developments, and it is not for me to say that they are wrong. But to portray
Roe as the statesmanlike "settlement" of a divisive issue, a jurisprudential
Peace of Westphalia that is worth preserving, is nothing less than Orwellian.
Roe fanned into life an issue that has inflamed our national politics in
general, and has obscured with its smoke the selection of Justices to this
Court *996 in particular, ever
since. And by keeping us in the abortion‑umpiring business, it is the
perpetuation of that disruption, rather than of any Pax Roeana, that the
Court's new majority decrees.
"[T]o overrule under fire ... would subvert the Court's
legitimacy....
"... To all those who will be ... tested by following, the
Court implicitly undertakes to remain steadfast.... The promise of constancy,
once given, binds its maker for as long as the power to stand by the decision
survives and ... the commitment [is not] obsolete....
"[The American people's] belief in themselves as ... a people
[who aspire to live according to the rule of law] is not readily separable from
their understanding of the Court invested with the authority to decide their
constitutional cases and speak before all others for their constitutional
ideals. If the Court's legitimacy should be undermined, then, so would the
country be in its very ability to see itself through its constitutional
ideals." Ante, at 2815‑2816.
The
Imperial Judiciary lives. It is instructive to compare this Nietzschean vision
of us unelected, life‑tenured judges‑‑leading a Volk who will
be "tested by following," and whose very "belief in
themselves" is mystically bound up in their "understanding" of a
Court that "speak[s] before all others for their constitutional
ideals"‑‑with the somewhat more modest role envisioned for
these lawyers by the Founders.
"The judiciary ... has ... no direction either of the strength or of the
wealth of the society, and can take no active resolution whatever. It may truly
be said to have neither Force nor Will, but merely judgment...." The
Federalist No. 78, pp. 393‑394 (G. Wills ed. 1982).
Or, again, to compare this ecstasy of a Supreme Court in which
there is, especially on controversial matters, no *997 shadow of change or hint of alteration ("There is a
limit to the amount of error that can plausibly be imputed to prior
Courts," ante, at 2815), with
**2883 the more democratic views of a more humble man:
"[T]he candid citizen
must confess that if the policy of the Government upon vital questions
affecting the whole people is to be irrevocably fixed by decisions of the
Supreme Court, ... the people will have ceased to be their own rulers, having
to that extent practically resigned their Government into the hands of that
eminent tribunal." A. Lincoln, First Inaugural Address (Mar. 4, 1861),
reprinted in Inaugural Addresses of the Presidents of the United States, S.
Doc. No. 101‑10, p. 139 (1989).
It is particularly difficult, in the circumstances of the present
decision, to sit still for the Court's lengthy lecture upon the virtues of
"constancy," ante, at 2815, of "remain[ing] steadfast,"
ibid., of adhering to "principle," ante, passim. Among the five Justices
who purportedly adhere to Roe, at most three agree upon the principle that
constitutes adherence (the joint opinion's "undue burden" standard)‑‑and
that principle is inconsistent with Roe. See 410 U.S., at 154‑156, 93
S.Ct., at 727‑728. [FN7] To make matters worse, two of the three, in
order thus to remain steadfast, had to abandon previously stated positions. See
n. 4, supra; see supra, at 2878‑2879. It is beyond me how the Court
expects these accommodations to be accepted "as grounded truly in
principle, not as compromises with social and political pressures having, as
such, no bearing on the principled choices that the Court is obliged to
make." Ante, at 2814. The only principle the Court "adheres" *998 to, it seems to me, is the
principle that the Court must be seen as standing by Roe. That is not a
principle of law (which is what I thought the Court was talking about), but a
principle of Realpolitik‑‑and a wrong one at that.
FN7. Justice BLACKMUN's
effort to preserve as much of Roe as possible leads him to read the joint opinion
as more "constan[t]" and "steadfast" than can be believed.
He contends that the joint opinion's "undue burden" standard requires
the application of strict scrutiny to "all non‑de minimis"
abortion regulations, ante, at 2846, but that could only be true if a
"substantial obstacle," ante, at 2820 (joint opinion), were the same thing as a non‑de
minimis obstacle‑‑which it plainly is not.
I cannot agree with, indeed I am appalled by, the Court's
suggestion that the decision whether to stand by an erroneous constitutional
decision must be strongly influenced‑‑against overruling, no less‑‑by
the substantial and continuing public opposition the decision has generated.
The Court's judgment that any other course would "subvert the Court's
legitimacy" must be another consequence of reading the error‑filled
history book that described the deeply divided country brought together by Roe.
In my history‑book, the Court was covered with dishonor and deprived of
legitimacy by Dred Scott v. Sandford, 19 How. 393, 15 L.Ed. 691 (1857), an
erroneous (and widely opposed) opinion that it did not abandon, rather than by
West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703
(1937), which produced the famous "switch in time" from the Court's
erroneous (and widely opposed) constitutional opposition to the social measures
of the New Deal. (Both Dred Scott and one line of the cases resisting the New
Deal rested upon the concept of "substantive due process" that the
Court praises and employs today. Indeed, Dred Scott was "very possibly the
first application of substantive due process in the Supreme Court, the original
precedent for Lochner v. New York and Roe v. Wade." D. Currie, The
Constitution in the Supreme Court 271 (1985) (footnotes omitted).)
But whether it would "subvert the Court's legitimacy" or
not, the notion that we would decide a case differently from the way we
otherwise would have in order to show that we can stand firm against public
disapproval is frightening. It is a bad enough idea, even in the head of
someone like me, who believes that the text of the Constitution, and our
traditions, say what they say and there is no fiddling with them. But when it
is in the mind of a Court that believes the Constitution *999 has an evolving meaning, see **2884 ante, at 2805; that the Ninth Amendment's reference to
"othe[r]" rights is not a disclaimer, but a charter for action,
ibid.; and that the function of this Court is to "speak before all others
for [the people's] constitutional ideals" unrestrained by meaningful text
or tradition‑‑then the notion that the Court must adhere to a
decision for as long as the decision faces "great opposition" and the
Court is "under fire" acquires a character of almost czarist
arrogance. We are offended by these marchers who descend upon us, every year on
the anniversary of Roe, to protest our saying that the Constitution requires
what our society has never thought the Constitution requires. These people who
refuse to be "tested by following" must be taught a lesson. We have
no Cossacks, but at least we can stubbornly refuse to abandon an erroneous
opinion that we might otherwise change‑‑to show how little they
intimidate us.
Of course, as THE CHIEF JUSTICE points out, we have been subjected
to what the Court calls " 'political pressure' " by both sides of
this issue. Ante, at 2865. Maybe today's decision not to overrule Roe will be
seen as buckling to pressure from that direction. Instead of engaging in the
hopeless task of predicting public perception‑‑a job not for
lawyers but for political campaign managers‑‑the Justices should do
what is legally right by asking two questions: (1) Was Roe correctly decided?
(2) Has Roe succeeded in producing a settled body of law? If the answer to both
questions is no, Roe should undoubtedly be overruled.
In truth, I am as distressed as the Court is‑‑and
expressed my distress several years ago, see Webster, 492 U.S., at 535, 109
S.Ct., at 3065‑‑about the "political pressure" directed
to the Court: the marches, the mail, the protests aimed at inducing us to
change our opinions. How upsetting it is, that so many of our citizens (good
people, not lawless ones, on both sides of this abortion issue, and on various
sides of other issues as well) think that we Justices should properly take into
account *1000 their views, as though
we were engaged not in ascertaining an objective law but in determining some
kind of social consensus. The Court would profit, I think, from giving less
attention to the fact of this distressing phenomenon, and more attention to the
cause of it. That cause permeates today's opinion: a new mode of constitutional
adjudication that relies not upon text and traditional practice to determine
the law, but upon what the Court calls "reasoned judgment," ante, at
2806, which turns out to be nothing but philosophical predilection and moral
intuition. All manner of "liberties," the Court tells us, inhere in
the Constitution and are enforceable by this Court‑‑not just those
mentioned in the text or established in the traditions of our society. Ante, at
2804‑ 2806. Why even the Ninth Amendment‑‑which says only
that "[t]he enumeration in the Constitution, of certain rights, shall not
be construed to deny or disparage others retained by the people"‑‑is,
despite our contrary understanding for almost 200 years, a literally boundless
source of additional, unnamed, unhinted‑‑at "rights,"
definable and enforceable by us, through "reasoned judgment." Ante,
at 2805‑2806.
What makes all this relevant to the bothersome application of
"political pressure" against the Court are the twin facts that the
American people love democracy and the American people are not fools. As long
as this Court thought (and the people thought) that we Justices were doing
essentially lawyers' work up here‑‑reading text and discerning our
society's traditional understanding of that text‑‑the public pretty
much left us alone. Texts and traditions are facts to study, not convictions to
demonstrate about. But if in reality our process of constitutional adjudication
consists primarily of making value judgments; if we can ignore a long and clear
tradition clarifying an ambiguous text, as we did, for example, five days ago
in declaring unconstitutional invocations and benedictions at public high
school graduation **2885 ceremonies,
Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992); if, as I
say, our pronouncement of constitutional law rests primarily on value *1001 judgments, then a free and
intelligent people's attitude towards us can be expected to be (ought to be)
quite different. The people know that their value judgments are quite as good
as those taught in any law school‑‑maybe better. If, indeed, the
"liberties" protected by the Constitution are, as the Court says,
undefined and unbounded, then the people should demonstrate, to protest that we
do not implement their values instead of ours. Not only that, but confirmation
hearings for new Justices should deteriorate into question‑and‑answer
sessions in which Senators go through a list of their constituents' most
favored and most disfavored alleged constitutional rights, and seek the
nominee's commitment to support or oppose them. Value judgments, after all,
should be voted on, not dictated; and if our Constitution has somehow
accidently committed them to the Supreme Court, at least we can have a sort of
plebiscite each time a new nominee to that body is put forward. Justice
BLACKMUN not only regards this prospect with equanimity, he solicits it. Ante,
at 2854‑2855.
* * *
There is a poignant aspect to today's opinion. Its length, and
what might be called its epic tone, suggest that its authors believe they are
bringing to an end a troublesome era in the history of our Nation and of our
Court. "It is the dimension" of authority, they say, to "cal[l]
the contending sides of national controversy to end their national division by
accepting a common mandate rooted in the Constitution." Ante, at 2815.
There comes vividly to mind a portrait by Emanuel Leutze that
hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82d
year of his life, the 24th of his Chief Justiceship, the second after his
opinion in Dred Scott. He is all in black, sitting in a shadowed red armchair,
left hand resting upon a pad of paper in his lap, right hand hanging limply, almost
lifelessly, beside the inner arm of the chair. He sits facing the viewer and
staring straight out. There *1002
seems to be on his face, and in his deep‑ set eyes, an expression of
profound sadness and disillusionment. Perhaps he always looked that way, even
when dwelling upon the happiest of thoughts. But those of us who know how the
lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot
help believing that he had that case‑‑its already apparent
consequences for the Court and its soon‑to‑be‑played‑out
consequences for the Nation‑‑burning on his mind. I expect that two
years earlier he, too, had thought himself "call[ing] the contending sides
of national controversy to end their national division by accepting a common
mandate rooted in the Constitution."
It is no more realistic for us in this litigation, than it was for
him in that, to think that an issue of the sort they both involved‑‑an
issue involving life and death, freedom and subjugation‑‑can be
"speedily and finally settled" by the Supreme Court, as President
James Buchanan in his inaugural address said the issue of slavery in the
territories would be. See Inaugural Addresses of the Presidents of the United
States, S.Doc. No. 101‑10, p. 126 (1989). Quite to the contrary, by
foreclosing all democratic outlet for the deep passions this issue arouses, by
banishing the issue from the political forum that gives all participants, even
the losers, the satisfaction of a fair hearing and an honest fight, by
continuing the imposition of a rigid national rule instead of allowing for
regional differences, the Court merely prolongs and intensifies the anguish.
We should get out of this area, where we have no right to be, and
where we do neither ourselves nor the country any good by remaining.