PLANNED PARENTHOOD OF
505
JUSTICE O'CONNOR, JUSTICE KENNEDY, and
JUSTICE SOUTER announced the judgment of the Court and delivered the opinion of
the Court with respect to Parts I, II, III, V-A, [505 U.S.
833, 844] V-C,
and VI, an opinion with respect to Part V-E, in which JUSTICE STEVENS joins,
and an opinion with respect to Parts IV, V-B, and V-D.
I
At issue in these cases are five
provisions of the Pennsylvania Abortion Control Act of 1982, as amended in 1988
and 1989. 18
. . . .
[W]e find it
imperative to review once more the principles that define the rights of the
woman and the legitimate authority of the State respecting the termination of
pregnancies by abortion procedures.
After considering the fundamental
constitutional questions resolved by Roe, principles of institutional
integrity, [505
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." . . . It is a promise of the Constitution that there
is a realm of personal liberty which the government may not enter. We have
vindicated this principle before. Marriage is mentioned nowhere in the Bill of
Rights, and interracial marriage was illegal [505 U.S.
833, 848] in
most States in the 19th century, but the Court was no doubt correct in finding
it to be an aspect of liberty protected against state interference by the
substantive component of the Due Process Clause. . .
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
In Griswold, we held that the
Constitution does not permit a State to forbid a married couple to use
contraceptives. That same freedom was later guaranteed, under the Equal
Protection Clause, for unmarried couples. See Eisenstadt
v. Baird, 405
U.S. 438 (1972). Constitutional protection was extended to the sale and
distribution of contraceptives in Carey v. Population Services International,
supra. It is settled now, as it was when the Court heard arguments in Roe v.
Wade, that the Constitution places limits on a State's right to interfere with
a person's most basic decisions about family and parenthood, see Carey v.
Population Services International, supra; Moore v. East Cleveland, 431
U.S. 494 (1977); Eisenstadt v. Baird, supra;
Loving v. Virginia, supra; Griswold v. Connecticut, supra; Skinner v. Oklahoma
ex rel. Williamson, 316
U.S. 535 (1942); Pierce v. Society of Sisters, supra; Meyer v. Nebraska,
supra, as well as bodily integrity, see, e.g., Washington v. Harper, 494
U.S. 210, 221 -222 (1990); Winston v. Lee, 470
U.S. 753 (1985); Rochin v. California, 342
U.S. 165 (1952).
The inescapable fact is that adjudication
of substantive due process claims may call upon the Court in interpreting the
Constitution to exercise that same capacity which, by tradition, courts always
have exercised: reasoned judgment. Its boundaries are not susceptible of
expression as a simple rule. That does not mean we are free to invalidate state
policy choices with which we disagree; yet neither does it permit us to shrink
from the duties of our office.
III
* * *
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. . . .
We have seen how time has overtaken some
of Roe's factual assumptions: advances in maternal health care allow for
abortions safe to the mother later in pregnancy than was true in 1973, see
Akron I, supra, 462 U.S. at 429, n. 11, and advances in neonatal care have
advanced viability to a point somewhat earlier. Compare Roe, 410
U.S., at 160 , with Webster, supra, 492
U.S., at 515 -516 (opinion of REHNQUIST, C.J.); see Akron I, 462
U.S., at 457 , and n. 5 (O'CONNOR, J., dissenting). But these facts go only
to the scheme of time limits on the realization of competing interests, and the
divergences from the factual premises of 1973 have no bearing on the validity
of Roe's central holding, that viability marks the earliest point at which the
State's interest in fetal life is constitutionally adequate to justify a
legislative ban on nontherapeutic abortions. . . .
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; [505 U.S. 833, 861] Roe portends no developments at odds with
other precedent for the analysis of personal liberty; and no changes of fact
have rendered viability more or less appropriate as the point at which the
balance of interests tips. Within the bounds of normal stare decisis analysis, then, and subject to the considerations
on which it customarily turns, the stronger argument is for affirming Roe's
central holding, with whatever degree of personal reluctance any of us may
have, not for overruling it.
B
In a less significant case, stare decisis analysis could, and would, stop at the point we
have reached. But the sustained and widespread debate Roe has provoked calls
for some comparison between that case and others of comparable dimension that
have responded to national controversies and taken on the impress of the
controversies addressed. Only two such decisional lines from the past century
present themselves for examination, and in each instance the result reached by
the Court accorded with the principles we apply today.
The first example is that line of cases
identified with Lochner v. New York, 198
U.S. 45 (1905), which imposed substantive limitations on legislation
limiting economic autonomy in favor of health and welfare regulation, adopting,
in Justice Holmes's view, the theory of laissez-faire.
The second comparison that 20th century
history invites is with the cases employing the separate-but-equal rule for
applying the Fourteenth Amendment's equal protection guarantee. They began with
Plessy v. Ferguson, 163
U.S. 537 (1896), holding that legislatively mandated racial segregation in
public transportation works no denial of equal protection, rejecting the
argument that racial separation enforced by the legal machinery of American
society treats the black race as inferior. The
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
West Coast Hotel and Brown each rested on
facts, or an understanding of facts, changed from those which furnished the
claimed justifications for the earlier constitutional resolutions. Each case
was comprehensible as the Court's response to facts that the country could
understand, or had come to understand already, but which the Court of an
earlier day, as its own declarations disclosed, had not been able to perceive.
As the decisions were thus comprehensible, [505
Because the cases before us present no
such occasion, it could be seen as no such response. Because neither the
factual underpinnings of Roe's central holding nor our understanding of it has
changed (and because no other indication of weakened precedent has been shown),
the Court could not pretend to be reexamining the prior law with any
justification beyond a present doctrinal disposition to come out differently
from the Court of 1973. To overrule prior law for no other reason than that
would run counter to the view, repeated in our cases, that a decision to
overrule should rest on some special reason over and above the belief that a
prior case was wrongly decided. See, e.g., Mitchell v. W.T. Grant Co., 416
U.S. 600, 636 (1974) (Stewart, J., dissenting) ("A basic change in the
law upon a ground no firmer than a change in our membership invites the popular
misconception that this institution is little different from the two political
branches of the Government. No misconception could do more lasting injury to
this Court, and to the system of law which it is our abiding mission to
serve"); Mapp v.
C
The examination of the conditions
justifying the repudiation of Adkins by West Coast Hotel and Plessy by Brown is enough to suggest the terrible price
that would have been paid if the Court had not overruled as it did. In the
present cases, however, as our analysis to this point makes clear, the terrible
price would be paid for overruling. Our analysis [505 U.S.
833, 865] would
not be complete, however, without explaining why overruling Roe's central
holding would not only reach an unjustifiable result under principles of stare decisis, but would seriously weaken the Court's capacity to
exercise the judicial power and to function as the Supreme Court of a Nation
dedicated to the rule of law. To understand why this would be so, it is
necessary to understand the source of this Court's authority, the conditions
necessary for its preservation, and its relationship to the country's
understanding of itself as a constitutional Republic.
The root of American governmental power is
revealed most clearly in the instance of the power conferred by the
Constitution upon the Judiciary of the
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. . . . [T]
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. . . .
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. . . .
In two circumstances, however, the Court
would almost certainly fail to receive the benefit of the doubt in overruling
prior cases. There is, first, a point beyond which frequent overruling would
overtax the country's belief in the Court's good faith. Despite the variety of
reasons that may inform and justify a decision to overrule, we cannot forget
that such a decision is usually perceived (and perceived correctly) as, at the
least, a statement that a prior decision was wrong. There is a limit to the
amount of error that can plausibly be imputed to prior Courts. If that limit should
be exceeded, disturbance of prior rulings would be taken as evidence that
justifiable reexamination of principle had given way to drives for particular
results in the short term. The legitimacy of the Court would fade with the
frequency of its vacillation.
That first circumstance can be described
as hypothetical; the second is to the point here and now. Where, in the
performance of its judicial duties, the Court decides a case in such a way as
to resolve the sort of intensely divisive controversy reflected in Roe and
those rare, comparable cases, its [505 U.S. 833, 867] decision has a dimension that the
resolution of the normal case does not carry. It is the dimension present
whenever the Court's interpretation of the Constitution calls the contending
sides of a national controversy to end their national division by accepting a
common mandate rooted in the Constitution.
* * *
The Court's duty in the present case is
clear. In 1973, it confronted the already-divisive issue of governmental power [505 U.S. 833, 869] to limit personal choice to undergo
abortion, for which it provided a new resolution based on the due process
guaranteed by the Fourteenth Amendment. Whether or not a new social consensus
is developing on that issue, its divisiveness is no less today than in 1973,
and pressure to overrule the decision, like pressure to retain it, has grown
only more intense. A decision to overrule Roe's essential holding under the
existing circumstances would address error, if error there was, at the cost of both
profound and unnecessary damage to the Court's legitimacy, and to the Nation's
commitment to the rule of law. It is therefore imperative to adhere to the
essence of Roe's original decision, and we do so today.
IV
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.
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.
The second reason is that the concept of
viability, as we noted in Roe, is the time at which there is a realistic
possibility of maintaining and nourishing a life outside the womb, so that the
independent existence of the second life can, in reason and all fairness, be
the object of state protection that now overrides the rights of the woman. See
Roe v. Wade, 410
U.S., at 163 . Consistent with other
constitutional norms, legislatures may draw lines which appear arbitrary
without the necessity of offering a justification. But courts may not. We must
justify the lines we draw. And there is no line other than viability which is
more workable. To be sure, as we have said, there may be some medical
developments that affect the precise point of viability,
see supra, at 17-18, but this is an imprecision within tolerable limits, given
that the medical community and all those who must apply its discoveries will
continue to explore the matter. The viability line also has, as a practical
matter, an element of fairness. In some broad sense, it might be said that a
woman who fails to act before viability has consented to the State's intervention
on behalf of the developing child. [505
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
Yet it must be remembered that Roe v.
Wade speaks with clarity in establishing not only the woman's liberty but also
the State's "important and legitimate interest in potential life."
Roe, supra, at 163. That portion of the decision in Roe has been given too
little acknowledgment and implementation by the Court in its subsequent cases.
Those cases decided that any regulation touching upon the abortion decision
must survive strict scrutiny, to be sustained only if drawn in narrow terms to
further a compelling state interest. See, e.g.,
* * *
We reject the trimester framework [of
Roe], which we do not consider to be part of the essential holding of Roe. See
Webster v. Reproductive Health Services, supra, at 518 (opinion of REHNQUIST,
C.J.); id., at 529 (O'CONNOR, J., concurring in part and concurring in
judgment) (describing the trimester framework as "problematic"). . .
. 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.
The trimester framework . . .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.
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.
Some guiding principles should emerge.
What is at stake is the woman's right to make the ultimate decision, not a
right to be insulated from all others in doing so. Regulations which do no more
than create a structural mechanism by which the State, or the parent or
guardian of a minor, may express profound respect for the life of the unborn
are permitted, if they are not a substantial obstacle to the woman's exercise
of the right to choose. See infra, at 899-900 (addressing
* * *
(a) To protect the central right
recognized by Roe v. Wade while at the same time accommodating the State's
profound interest in potential life, we will employ the undue burden analysis
as explained in this opinion. An undue burden exists, and therefore a provision
of law is invalid, if its purpose or effect is to place a substantial obstacle
in the path of a woman seeking an abortion before the fetus attains viability.
(b) We reject the rigid trimester
framework of Roe v. Wade. To promote the State's profound interest in potential
life, throughout pregnancy, the State may take measures to ensure that the
woman's choice is informed, and measures designed to advance this interest will
not be invalidated as long as their purpose is to persuade the woman to choose
childbirth over abortion. These measures must not be an undue burden on the
right.
(c) As with any medical procedure, the State
may enact regulations to further the health or safety of a woman seeking an
abortion. Unnecessary health regulations that have the purpose or effect of
presenting a substantial obstacle to a woman seeking an abortion impose an
undue burden on the right. [505
(d) Our adoption of the undue burden
analysis does not disturb the central holding of Roe v. Wade, and we reaffirm
that holding. Regardless of whether exceptions are made for particular
circumstances, a State may not prohibit any woman from making the ultimate
decision to terminate her pregnancy before viability.
(e) We also reaffirm Roe's holding that,
subsequent to viability, the State, in promoting its interest in the
potentiality of human life, may, if it chooses, regulate, and even proscribe,
abortion except where it is necessary, in appropriate medical judgment, for the
preservation of the life or health of the mother. Roe v. Wade, 410
U.S., at 164 -165.
These principles control our assessment
of the
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 undue burden analysis in accordance with the
principles articulated above. We now consider the separate statutory sections
at issue.
* * *
We [now] consider the informed consent
requirement. 18
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. . . .
In
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. . . . It cannot be questioned
that psychological wellbeing is a facet of health. Nor can it be doubted that
most women considering an abortion would deem the impact on the fetus relevant,
if not dispositive, to the decision. In attempting to
ensure that a woman apprehend the full consequences of her decision, the State
furthers the legitimate purpose of reducing the risk that a woman may elect an
abortion, only to discover later, with devastating psychological consequences,
that her decision was not fully informed. If the information the State requires
to be made available to the woman is truthful and not misleading, the
requirement may be permissible.
We also see no reason why the State may
not require doctors to inform a woman seeking an abortion of the availability
of materials relating to the consequences to the fetus, even when those consequences
have no direct relation to her health. An example illustrates the point. We
would think [505 U.S. 833, 883] it constitutional for the State to
require that, in order for there to be informed consent to a kidney transplant
operation, the recipient must be supplied with information about risks to the
donor as well as risks to himself or herself. A requirement that the physician
make available information similar to that mandated by the statute here was
described in Thornburgh as an outright attempt to wedge the Commonwealth's
message discouraging abortion into the privacy of the informed consent dialogue
between the woman and her physician. 476
U.S., at 762 . We conclude, however, that informed
choice need not be defined in such narrow terms that all considerations of the
effect on the fetus are made irrelevant. As we have made clear, we depart from
the holdings of Akron I and Thornburgh to the extent that we permit a State to
further its legitimate goal of protecting the life of the unborn by enacting
legislation aimed at ensuring a decision that is mature and informed, even
when, in so doing, the State expresses a preference for childbirth over
abortion. In short, requiring that the woman be informed of the availability of
information relating to fetal development and the assistance available should
she decide to carry the pregnancy to full term is a reasonable measure to
ensure an informed choice, one which might cause the woman to choose childbirth
over abortion. This requirement cannot be considered a substantial obstacle to
obtaining an abortion, and, it follows, there is no undue burden.
. . .
Our analysis of
Whether the mandatory 24-hour waiting
period is nonetheless invalid because, in practice, it is a substantial
obstacle to a woman's choice to terminate her pregnancy is a closer question.
The findings of fact by the District Court indicate that, because of the
distances many women must travel to reach an abortion provider, the practical
effect will often be [505 U.S. 833, 886] a delay of much more than a day because
the waiting period requires that a woman seeking an abortion make at least two
visits to the doctor. The District Court also found that, in many instances,
this will increase the exposure of women seeking abortions to "the
harassment and hostility of anti-abortion protestors demonstrating outside a
clinic." 744 F.Supp., at 1351. As a result, the District Court found that, for
those women who have the fewest financial resources, those who must travel long
distances, and those who have difficulty explaining their whereabouts to
husbands, employers, or others, the 24-hour waiting period will be
"particularly burdensome."
These findings
are troubling in some respects, but they do not demonstrate that the waiting
period constitutes an undue burden.
*
* *
Section 3209 of Pennsylvania's abortion
law provides, except in cases of medical emergency, that no physician shall
perform an abortion on a married woman without receiving a signed statement
from the woman that she has notified her spouse that she is about to undergo an
abortion. The woman has the option of providing an alternative signed statement
certifying that her husband is not the man who impregnated her; that her
husband could not be located; that the pregnancy is the result of spousal
sexual assault which she has reported; or that the woman believes that
notifying her husband will cause him or someone else to inflict bodily injury
upon her. A physician who performs an abortion on [505 U.S.
833, 888] a
married woman without receiving the appropriate signed statement will have his
or her license revoked, and is liable to the husband for damages. . . .
In well-functioning [505
The spousal notification requirement is
thus likely to prevent a significant number of women from obtaining an
abortion. It does not merely make abortions a little more difficult or
expensive to obtain; for many women, it will impose [505
*
* *
We next consider the parental consent
provision. Except in a medical emergency, an unemancipated
young woman under 18 may not obtain an abortion unless she and one of her
parents (or guardian) provides informed consent as
defined above. If neither a parent nor a guardian provides consent, a court may
authorize the performance of an abortion upon a determination that the young
woman is mature and capable of giving informed consent and has, in fact, given
her informed consent, or that an abortion would be in her best interests.
We have been over most of this ground
before. Our cases establish, and we reaffirm today, that a State may require a
minor seeking an abortion to obtain the consent of a parent or guardian,
provided that there is an adequate judicial bypass procedure. See, e.g., Akron
II, 497
U.S., at 510 -519; Hodgson, 497
U.S., at 461 (O'Connor, J., concurring in part and concurring in judgment
in part); id., at 497-501 (Kennedy, J., concurring in judgment in part and
dissenting in part); Akron I, 462
U.S., at 440 ; Bellotti II, 443
U.S., at 643 -644 (plurality opinion). Under these precedents, in our view,
the one-parent consent requirement and judicial bypass procedure are
constitutional.
*
* *
The 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.
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. . . .
A
state-imposed burden on the exercise of a constitutional right is measured both
by its effects and by its character: a burden may be "undue" either
because the burden is too severe or because it lacks a legitimate, rational
justification. 6
The 24-hour delay requirement fails both
parts of this test. The findings of the District Court establish the severity
of [505
The counseling provisions are similarly
infirm. Whenever government commands private citizens to speak or to listen,
careful review of the justification for that command is particularly
appropriate. In this case, the
Accordingly, while I disagree with Parts
IV, V-B, and V-D of the joint opinion, 8
I join the remainder of the Court's
opinion.
Footnotes
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.
Today, no less than yesterday, the
Constitution and decisions of this Court require that a State's abortion
restrictions be subjected to the strictest of judicial scrutiny. Our precedents
and the joint opinion's principles require us to subject all non-de-minimis abortion regulations to strict scrutiny. Under this
standard, the
* * *
State restrictions on abortion violate a
woman's right of privacy in two ways. First, compelled continuation of a
pregnancy infringes upon a woman's right to bodily integrity by imposing
substantial physical intrusions and significant risks of physical harm. During
pregnancy, women experience dramatic physical changes and a wide range of
health consequences. Labor and delivery pose additional health risks and
physical demands. In short, restrictive abortion laws force women to endure
physical invasions far more substantial than those this Court has held to
violate the constitutional principle of bodily integrity in other contexts.
See, e.g., Winston v. Lee, 470 U.S. 753 (1985) (invalidating surgical removal of
bullet from murder suspect); Rochin v.
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
A
State's restrictions on a woman's right to terminate her pregnancy also
implicate constitutional guarantees of gender equality. . . .
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.
Roe
implemented these principles through a framework that was designed to ensure
that the woman's right to choose not become so subordinate to the State's
interest in promoting fetal life that her choice exists in theory, but not in
fact, ante, at 872. Roe identified two relevant state interests: "an
interest in preserving and protecting the health of the pregnant woman"
and an interest in "protecting the potentiality of human life." 410
U.S., at 162 .
With respect to the State's interest in the health of the mother, "the
`compelling' point . . . is at approximately the end of the first
trimester," because it is at that point that the mortality rate in
abortion approaches that in childbirth.
In
my view, application of this analytical framework is no less warranted than
when it was approved by seven Members of this Court in Roe. Strict scrutiny of
state limitations on reproductive choice still offers the most secure
protection of the woman's right to make her own reproductive decisions, free
from state coercion. No majority of this Court has ever agreed upon an
alternative approach. The factual premises of the trimester framework have not
been undermined, see Webster, 492
U.S., at 553 (BLACKMUN, J., dissenting),
and the Roe framework is far more administrable, and far less manipulable, than the "undue burden" standard
adopted by the joint opinion.
Nonetheless,
three criticisms of the trimester framework continue to be uttered. First, the
trimester framework is attacked because its key elements do not appear in the
text of the Constitution. My response to this attack remains the same as it was
in Webster:
"Were this
a true concern, we would have to abandon most of our constitutional
jurisprudence. [T]he "critical elements" of
countless constitutional doctrines nowhere appear in the Constitution's text. .
. . The Constitution makes no mention, for example, of the First Amendment's
"actual malice" standard for proving certain libels, see New York
Times Co. v. Sullivan, 376
U.S. 254 (1964). . . . Similarly, the
Constitution makes no mention of the rational basis test, or the specific
verbal formulations of intermediate and strict scrutiny by which this Court
evaluates claims under the Equal Protection Clause. The reason is simple. Like
the Roe framework, these [505
The second criticism is that the
framework more closely resembles a regulatory code than a body of
constitutional doctrine. Again, my answer remains the same as in Webster:
"[I]f this
were a true and genuine concern, we would have to abandon vast areas of
our constitutional jurisprudence. . . . Are [the distinctions entailed in the
trimester framework] any finer, or more "regulatory," than the
distinctions we have often drawn in our First Amendment jurisprudence, where,
for example, we have held that a "release time" program permitting
public school students to leave school grounds during school hours to receive
religious instruction does not violate the Establishment Clause, even though a
release time program permitting religious instruction on school grounds does
violate the Clause? Compare Zorach v. Clauson, 343
U.S. 306 (1952), with
"That numerous
constitutional doctrines result in narrow differentiations between similar
circumstances does [505
The final, and more genuine, criticism of
the trimester framework is that it fails to find the State's interest in
potential human life compelling throughout pregnancy. No Member of this Court -
nor for that matter, the Solicitor General, Tr. of Oral Arg.
42 - has ever questioned our holding in Roe that an abortion is not "the
termination of life entitled to Fourteenth Amendment protection." 410
U.S., at 159 .
Accordingly, a State's interest in protecting fetal life is not grounded in the
Constitution. Nor, consistent with our Establishment Clause, can it be a theological
or sectarian interest. See Thornburgh v.
But
while a State has "legitimate interests from the outset of the pregnancy
in protecting the health of the woman and the life of the fetus that may become
a child," ante, at 846, legitimate interests are not enough. To overcome
the burden of strict scrutiny, the interests must be compelling. The question
then is how best to accommodate the State's interest in potential human life
with the constitutional liberties of pregnant women. Again, I stand by the
views I expressed in Webster:
"I remain convinced, as
six other Members of this Court 16 years ago were convinced, that the Roe
framework, and the viability standard in particular, fairly, sensibly, and
effectively functions to safeguard the constitutional liberties of pregnant
women while recognizing and accommodating the State's interest in potential
human life. The viability line reflects the biological facts and truths of
fetal development; it marks that threshold moment prior to which a fetus cannot
survive separate from the [505
Roe's trimester framework does not ignore
the State's interest in prenatal life. Like JUSTICE STEVENS, ante, at 916, I
agree that the State may take steps to ensure that a woman's choice "is
thoughtful and informed," ante, at 872, and that States are free to enact
laws to provide a reasonable framework for a woman to make a decision that has
such profound and lasting meaning. Ante, at 873. But
"[s]erious
questions arise . . . when a State attempts to "persuade the woman to
choose childbirth over abortion." Ante, at 878. Decisional autonomy must
limit the State's power to inject into a woman's most personal deliberations
its own views of what is best. The State may promote its preferences by funding
childbirth, by creating and maintaining alternatives to abortion, and by
espousing the virtues of family; but it must respect [505 U.S. 833, 934] the
individual's freedom to make such judgments. Ante, at 916 (STEVENS, J.,
concurring in part and dissenting in part) (internal quotation marks omitted).
As the joint opinion recognizes, the
means chosen by the State to further the interest in potential life must be
calculated to inform the woman's free choice, not hinder it. Ante, at 877.
In
sum, Roe's requirement of strict scrutiny as implemented through a trimester
framework should not be disturbed. No other approach has gained a majority, and
no other is more protective of the woman's fundamental right. Lastly, no other
approach properly accommodates the woman's constitutional right with the
State's legitimate interests.
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
Measured
against these principles, some aspects of the
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. . . .
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
As JUSTICE STEVENS insightfully
concludes, the mandatory delay rests either on outmoded or unacceptable
assumptions about the decisionmaking capacity of
women or the belief that the decision to terminate the pregnancy is [505
Except in the case of a medical
emergency, 3206 requires a physician to obtain the informed consent of a parent
or guardian before performing an abortion on an unemancipated
minor or an incompetent woman. Based on evidence in the record, the District
Court concluded that, in order to fulfill the informed consent requirement,
generally accepted medical principles would require an in-person visit by the
parent to the facility. 744 F. Supp., at 1382.Although the Court "has
recognized that the State has somewhat broader authority to regulate the
activities of children than of adults," the State nevertheless must
demonstrate that there is a "significant State interest in conditioning an
abortion . . . that is not present in the case of an adult." Danforth, 428 U.S., at 74 -75 (emphasis added). The requirement of
an in-person visit would carry with it the risk of a delay of several days or
possibly weeks, even where the parent is willing to consent. While the State
has an interest in encouraging parental involvement in the minor's abortion
decision, 3206 is not narrowly drawn to serve that interest. 10
[505
Finally,
the
The
confidential reports concerning the identities and medical judgment of
physicians involved in abortions at first glance may seem valid, given the
Commonwealth's interest in maternal health and enforcement of the Act. The
District Court found, however, that, notwithstanding the confidentiality
protections, many physicians, particularly those who have previously
discontinued performing abortions because of harassment, would refuse to refer
patients to abortion clinics if their names were to appear on these reports.
744 F. Supp., at 1392. The Commonwealth has failed to show that the name of the
referring physician either adds to the pool of scientific knowledge concerning
abortion or is reasonably related to the Commonwealth's interest in maternal
health. I therefore agree with the District Court's conclusion that the
confidential reporting requirements are unconstitutional [505
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 944. If there is much reason to applaud the
advances made by the joint opinion today, there is far more to fear from THE
CHIEF JUSTICE's opinion.
THE CHIEF JUSTICE's criticism of Roe follows from his stunted
conception of individual liberty. While recognizing that the Due Process Clause
protects more than simple physical liberty, he then goes on to construe this
Court's personal liberty cases as establishing only a laundry list of
particular rights, rather than a principled account of how these particular
rights are grounded in a more general right of privacy. Post, at 951. This
constricted view is reinforced by THE CHIEF JUSTICE's
exclusive reliance on tradition as a source of fundamental rights. . . .
Even more
shocking than THE CHIEF JUSTICE's cramped notion of
individual liberty is his complete omission of any discussion of the effects
that compelled childbirth and motherhood have on women's lives. The only
expression of concern with women's health is purely instrumental - for THE
CHIEF JUSTICE, only women's psychological health is a concern, and only to the
extent that he assumes that every woman who decides to have an abortion does so
without serious consideration of the moral implications of their decision.
Post, at 967-968. In short, THE CHIEF JUSTICE's view
of the State's compelling interest in maternal health has less to do with
health than it does with compelling women to be maternal.
* * *
Even if it
is somehow "irrational" for a State to require a woman to risk her
life for her child, what protection is offered for women who become pregnant
through rape or incest? Is there anything arbitrary or capricious about a [505
But, we
are reassured, there is always the protection of the
democratic process. While there is much to be praised about our democracy, our
country, since its founding, has recognized that there are certain fundamental
liberties that are not to be left to the whims of an election. A woman's right
to reproductive choice is one of those fundamental liberties. Accordingly, that
liberty need not seek refuge at the ballot box.
In one
sense, the Court's approach is worlds apart from that of THE CHIEF JUSTICE and
JUSTICE SCALIA. And yet, in another sense, the distance between the two
approaches is short - the distance is but a single vote.
I am 83
years old. I cannot remain on this Court forever, and when I do step down, the
confirmation process for my successor well may focus on the issue before us
today. That, I regret, may be exactly where the choice between the two worlds
will be made.
CHIEF JUSTICE REHNQUIST, with whom
JUSTICE WHITE, JUSTICE SCALIA, and JUSTICE THOMAS join, concurring in the
judgment in part and dissenting in part.
The joint opinion, following its newly
minted variation on stare decisis, retains the outer
shell of Roe v. Wade, 410
U.S. 113 (1973), but beats a wholesale retreat from the substance of that
case. We believe that Roe was wrongly decided, and
that it can and should be overruled consistently with our traditional approach
to stare decisis in constitutional cases. We would
adopt the approach of the plurality in Webster v. Reproductive Health Services,
492
U.S. 490 (1989), and uphold the challenged provisions of the
In Roe v. Wade, the Court recognized a
"guarantee of personal privacy" which "is broad enough to
encompass a woman's decision whether or not to terminate her pregnancy." 410
U.S., at 152 -153. We are now of the view that, in terming this right
fundamental, the Court in Roe read the earlier [505 U.S.
833, 952] opinions
upon which it based its decision much too broadly. Unlike marriage, procreation,
and contraception, abortion "involves the purposeful termination of a
potential life." Harris v. McRae, 448
U.S. 297, 325 (1980). The abortion decision must therefore be recognized as
sui generis, different in
kind from the others that the Court has protected under the rubric of personal
or family privacy and autonomy. Thornburgh v. American College of Obstetricians
and Gynecologists, supra, 476
U.S., at 792 (WHITE, J., dissenting). One cannot ignore the fact that a
woman is not isolated in her pregnancy, and that the decision to abort
necessarily involves the destruction of a fetus. See Michael H. v. Gerald D.,
supra, 491
U.S., at 124 , n. 4 (To look "at the act
which is assertedly the subject of a liberty interest
in isolation from its effect upon other people [is] like inquiring whether
there is a liberty interest in firing a gun where the case at hand happens to
involve its discharge into another person's body").
Nor do the historical traditions of the
American people support the view that the right to terminate one's pregnancy is
"fundamental." . . .
We think, therefore, both in view of this
history and of our decided cases dealing with substantive liberty under the Due
Process Clause, that the Court was mistaken in Roe when it classified a woman's
decision to terminate her pregnancy as a "fundamental right" that
could be abridged only in a manner which withstood "strict scrutiny."
In so concluding, we repeat the observation made in Bowers v. Hardwick, 478
U.S. 186 (1986):
"Nor
are we inclined to take a more expansive view of our authority to discover new
fundamental rights imbedded in the Due Process Clause. The Court is most
vulnerable and comes nearest to illegitimacy when it deals with judge-made
constitutional law having little or no cognizable roots in the language or
design of the Constitution."
We believe that
the sort of constitutionally imposed abortion code of the type illustrated by
our decisions following Roe is inconsistent "with the notion of a
Constitution cast in general terms, as ours is, and usually speaking in general
principles, as ours does." Webster v. Reproductive Health Services, 492
U.S., at 518 (plurality opinion). The Court in Roe reached too far when it
analogized the right to abort a fetus to the rights involved in Pierce, Meyer,
Loving, and Griswold, and thereby deemed the right to abortion fundamental.
* * *
In our view, authentic principles of
stare decisis do not require that any portion of the
reasoning in Roe be kept intact. "Stare decisis
is not . . . a universal, inexorable command," especially in cases
involving the interpretation of the Federal Constitution. Burnet v. Coronado
Oil & Gas Co., 285
U.S. 393, 405 (1932) (Brandeis, J., dissenting). Erroneous decisions in
such constitutional cases are uniquely durable, because correction through
legislative action, save for [505
The joint
opinion discusses several stare decisis factors
which, it asserts, point toward retaining a portion of Roe. Two of these
factors are that the main "factual underpinning" of Roe has remained
the same, and that its doctrinal foundation is no weaker now than it was in
1973. Ante, at 857-860. Of course, what might be called the basic facts which
gave rise to Roe have remained the same - women become pregnant, there is a
point somewhere, depending on medical technology, where a fetus becomes viable,
and women give birth to children. But this is only to say that the same facts
which gave rise to Roe will continue to give rise to similar cases. It is not a
reason, in and of itself, why those cases must be decided in the same incorrect
manner as was the first case to deal with the question. And surely there is no
requirement, in considering whether to depart from stare decisis
in a constitutional case, that a decision be more
wrong now than it was at the time it was rendered. If that were true, the most
outlandish constitutional decision could survive [505
Nor does the joint opinion faithfully
follow this alleged requirement. The opinion frankly concludes that Roe and its
progeny were wrong in failing to recognize that the State's interests in
maternal health and in the protection of unborn human life exist throughout
pregnancy. Ante, at 871-873. But there is no indication that these components
of Roe are any more incorrect at this juncture than they were at its inception.
The joint opinion also points to the
reliance interests involved in this context in its effort to explain why
precedent must be followed for precedent's sake. Certainly it is true that,
where reliance is truly at issue, as in the case of judicial decisions that
have formed the basis for private decisions, "[c]onsiderations
in favor of stare decisis are at their acme."
Payne v.
The joint opinion thus turns to what can
only be described as an unconventional - and unconvincing - notion of reliance,
a view based on the surmise that the availability of abortion since Roe has led
to "two decades of economic and social developments" that would be
undercut if the error of Roe were recognized. Ante, at 856. The joint opinion's
assertion of this fact is undeveloped, and totally conclusory.
In fact, one cannot be sure to what economic and social developments the
opinion is referring. Surely it is dubious to suggest that women have reached
their "places in society" in [505 U.S.
833, 957] reliance
upon Roe, rather than as a result of their determination to obtain higher
education and compete with men in the job market, and of society's increasing
recognition of their ability to fill positions that were previously thought to
be reserved only for men. Ante, at 856.
In the end, having failed to put forth
any evidence to prove any true reliance, the joint opinion's argument is based
solely on generalized assertions about the national psyche, on a belief that
the people of this country have grown accustomed to the Roe decision over the
last 19 years and have "ordered their thinking and living around" it.
Ante, at 856. As an initial matter, one might inquire how the joint opinion can
view the "central holding" of Roe as so deeply rooted in our
constitutional culture when it so casually uproots and disposes of that same
decision's trimester framework. Furthermore, at various points in the past, the
same could have been said about this Court's erroneous decisions that the
Constitution allowed "separate but equal" treatment of minorities,
see Plessy v. Ferguson, 163
U.S. 537 (1896), or that "liberty" under the Due Process Clause
protected "freedom of contract," see Adkins v. Children's Hospital of
District of Columbia, 261
U.S. 525 (1923); Lochner v.
Apparently realizing that conventional
stare decisis principles do not support its position,
the joint opinion advances a belief that retaining a portion of Roe is
necessary to protect [505 U.S. 833, 958] the "legitimacy" of this Court.
Ante, at 861-869. Because the Court must take care to render decisions
"grounded truly in principle," and not simply as political and social
compromises, ante, at 865, the joint opinion properly declares it to be this
Court's duty to ignore the public criticism and protest that may arise as a
result of a decision. Few would quarrel with this statement, although it may be
doubted that Members of this Court, holding their tenure as they do during
constitutional "good behavior," are at all likely to be intimidated
by such public protests.
But the joint opinion goes on to state
that, when the Court "resolve[s] the sort of intensely divisive controversy
reflected in Roe and those rare, comparable cases," its decision is exempt
from reconsideration under established principles of stare decisis
in constitutional cases. Ante, at 866. This is so, the joint opinion contends,
because, in those "intensely divisive" cases, the Court has call[ed]
the contending sides of a national controversy to end their national division
by accepting a common mandate rooted in the Constitution, and must therefore
take special care not to be perceived as "surrender[ing]
to political pressure" and continued opposition. Ante, at 866,867. This is
a truly novel principle, one which is contrary to both the Court's historical
practice and to the Court's traditional willingness to tolerate criticism of
its opinions. Under this principle, when the Court has ruled on a divisive
issue, it is apparently prevented from overruling that decision for the sole
reason that it was incorrect, unless opposition to the original decision has
died away.
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. . . .
[T]he opinion asserts that the Court
could justifiably overrule its decision in Lochner
only because the Depression had convinced "most people" that
constitutional protection of contractual freedom contributed to an economy [505 U.S. 833, 961] that failed to protect the welfare of
all. Ante, at 861. Surely the joint opinion does not mean to suggest that
people saw this Court's failure to uphold minimum wage statutes as the cause of
the Great Depression! In any event, the
The joint opinion also agrees that the
Court acted properly in rejecting the doctrine of "separate but
equal" in Brown. In fact, the opinion lauds Brown in comparing it to Roe.
Ante, at 867. This is strange, in that, under the opinion's
"legitimacy" principle, the Court would seemingly have been forced to
adhere to its erroneous decision in Plessy because of
its "intensely divisive" character. To us, adherence to Roe today
under the guise of "legitimacy" would seem to resemble more closely
adherence to Plessy on the same ground. . . . 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 sum of the joint opinion's labors in
the name of stare decisis and "legitimacy"
is this: Roe v. Wade stands as a sort of judicial Potemkin
Village, which may be pointed out to passers-by as a
monument to the importance of adhering to precedent. But behind the facade, an
entirely new method of analysis, without any roots in constitutional law, is
imported to decide the constitutionality of state laws regulating abortion.
Neither stare decisis nor "legitimacy" are
truly served by such an effort.
We have stated
above our belief that the Constitution does not subject state abortion
regulations to heightened scrutiny. Accordingly, we think that the correct
analysis is that set forth by the plurality opinion in Webster. A woman's
interest in having an abortion is a form of liberty protected by the Due
Process Clause, but States may regulate abortion procedures in ways rationally
related to a legitimate state interest. Williamson v. Lee Optical of Oklahoma,
Inc., 348
U.S. 483, 491 (1955); cf.
*
* *
[We] would hold that each of the
challenged provisions of the
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 [have stated before]. 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. . . .
That is, quite simply, the issue in this
case: not whether the power of a woman to abort her unborn child is a
"liberty" in the absolute sense; or even whether it is a liberty of
great importance to many women. Of course it is both. The issue is whether it
is a liberty protected by the Constitution of the
* * *