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[Cite as Planned Parenthood v. Casey, 505 U.S.
833, 848-849 (1992). Note: This decision regards a Pennsylvania law
restricting abortion. The Court's opinion quotes Justice Harlan's dissenting
opinion in Poe v. Ullman, 367 U.S. at 542-543 (1961)
enumerating the right to bear arms among other rights in the first eight
amendments--that the fourteenth amendment covered, but was not exclusively
limited to, "the precise terms of the specific guarantees elsewhere provided
in the Constitution," such as "the freedom of speech, press, and religion;
the right to keep and bear arms; the freedom from unreasonable searches and
seizures.". (Pp. 848-849) This
dissenting opinion gained ascendency in Griswold v. Connecticut,
381 U.S. 479, 488 (1965) where a
concurring opinion made repeated reference to the first eight amendments in
terms of "fundamental rights" (Griswold at 488, 490, 491, 492 (citing
Poe)). As David Kopel notes, "It is impossible to read Justice
Harlan's words as anything other than a recognition that the Second Amendment
protects the right of individual Americans to possess firearms. Obviously, the
Due Process Clause of the Fourteenth Amendment protects a right of individuals
against government; it does not protect government, nor is it some kind
of collective right. It is notable that Justice Harlan felt no need to defend or
elaborate his position that the Second Amendment guaranteed an individual
right." (Communitarians, Neorepublicans, and Guns: Assessing the Case
for Firearms Prohibition, 56 Maryland L. Rev. 438, 540 (1997)) See also
Dred Scott v. Sandford, 60 U.S. 393, 417, 450-451 (1857);
Robertson v. Baldwin, 165 U.S. 275, 281-282 (1897), and
United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990). Another
interesting quote is Justice Scalia's parody of the phrase "power corrupts, and
absolute power corrupts absolutely" when he chided the majority opinion by
noting: "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.'"
PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA, et
al. v. CASEY, GOVERNOR OF PENNSYLVANIA, et
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
No. 91-744. Argued April 22, 1992--Decided June 29,
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: 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, principles of institutional
integrity, and the rule of stare decisis require that Roe's
essential holding be retained (p.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 pre-viability interests are not strong
enough to support an abortion prohibition or the imposition of substantial
obstacles to the woman's effective right to elect the procedure; (2) a
confirmation of the State's power to restrict abortions after viability, if the
law contains exceptions for pregnancies endangering a woman's life or health;
and (3) the principle that the State has legitimate interests from the outset of
the pregnancy in protecting the health of the woman and the life of the fetus
that may become a child. Pp. 844-869.
(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. 844-845.
(b) Roe determined that a woman's decision to
terminate her pregnancy is a "liberty" protected against state interference by
the substantive component of the Due Process Clause of the Fourteenth Amendment.
Neither the Bill of Rights nor the specific practices of States at the time of
the Fourteenth Amendment's adoption marks the outer limits of the substantive
sphere of such "liberty." Rather, the adjudication of substantive due process
claims may require this Court to exercise its reasoned judgment in determining
the boundaries between the individual's liberty and the demands of organized
society. The Court's decisions have afforded constitutional protection to
personal decisions relating to marriage, see, e.g., Loving v. Virginia, 388 U.S. 1, procreation, Skinner v. Oklahoma ex rel Williamson, 316 U.S. 535,
family relationships, Prince v. Massachusetts, 321 U.S.
158, child rearing and education, Pierce v. Society of
Sisters, 268 U.S. 510, and contraception, Griswold
v. Connecticut, 381 U.S. 479, and have
recognized the right of the individual to be free from unwarranted governmental
intrusion into matters so fundamentally affecting a person as the decision
whether to bear or beget a child, Eisenstadt v. Baird, 405
U.S. 438, 453. Roe's central holding properly invoked the
reasoning and tradition of these precedents. Pp. 846-853.
(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. 854-855.(p.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. 855.
(e) The Roe rule's limitation on state power
could not be repudiated without serious inequity to people who, for two decades
of economic and social developments, have organized intimate relationships and
made choices that define their views of themselves and their places in society,
in reliance on the availability of abortion in the event that contraception
should fail. The ability of women to participate equally in the economic and
social life of the Nation has been facilitated by their ability to control their
reproductive lives. The Constitution serves human values, and while the effect
of reliance on Roe cannot be exactly measured, neither can the certain
costs of overruling Roe for people who have ordered their thinking and
living around that case be dismissed. Pp. 855-856.
(f) No evolution of legal principle has left
Roe's central rule a doctrinal anachronism discounted by society. If
Roe is placed among the cases exemplified by Griswold, supra, it
is clearly in no jeopardy, since subsequent constitutional developments have
neither disturbed, nor do they threaten to diminish, the liberty recognized in
such cases. Similarly, if Roe is seen as stating a rule of personal
autonomy and bodily integrity, akin to cases recognizing limits on governmental
power to mandate medical treatment or to bar its rejection, this Court's
post-Roe decisions accord with Roe's view that a State's interest
in the protection of life falls short of justifying any plenary override of
individual liberty claims. See, e.g., Cruzan v.
Director, Mo. Dept. of Health, 497 U.S. 261, 278. 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
(Akron I), and Thornburgh v. American College of
Obstetricians and Gynecologists, 476 U.S. 747; and, in Webster v. Reproductive Health Services, 492 U.S. 490, a
majority either voted to reaffirm or declined to address the constitutional
validity of Roe's central holding. Pp. 857-859.
(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 (p.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. P. 860.
(h) A comparison between Roe and two
decisional lines of comparable significance--the line identified with Lochner v. New York, 198 U.S. 45, and the line that began
with Plessy v. Ferguson, 163 U.S. 537--confirms the
result reached here. Those lines were overruled--by, respectively, West Coast Hotel Co. v. Parrish, 300 U.S. 379, and Brown v. Board of Education, 347 U.S. 483--on the basis of
facts, or an understanding of facts, changed from those which furnished the
claimed justifications for the earlier constitutional resolutions. The
overruling decisions were comprehensible to the Nation, and defensible, as the
Court's responses to changed circumstances. In contrast, because neither the
factual underpinnings of Roe's central holding nor this Court's
understanding of it has changed (and because no other indication of weakened
precedent has been shown), the Court could not pretend to be reexamining
Roe with any justification beyond a present doctrinal disposition to come
out differently from the Roe Court. That is an inadequate basis for
overruling a prior case. Pp. 861-864.
(i) Overruling Roe's central holding would
not only reach an unjustifiable result under stare decisis principles,
but would seriously weaken the Court's capacity to exercise the judicial power
and to function as the Supreme Court of a Nation dedicated to the rule of law.
Where the Court acts to resolve the sort of unique, intensely divisive
controversy reflected in Roe, its decision has a dimension not present in
normal cases, and is entitled to rare precedential force to counter the
inevitable efforts to overturn it and to thwart its implementation. Only the
most convincing justification under accepted standards of precedent could
suffice to demonstrate that a later decision overruling the first was anything
but a surrender to political pressure and an unjustified repudiation of the
principle on which the Court staked its authority in the first instance.
Moreover, the country's loss of confidence in the Judiciary would be underscored
by condemnation for the Court's failure to keep faith with those who support the
decision at a cost to themselves. A decision to overrule Roe's essential
holding under the existing circumstances would address error, if error there
was, at the cost of both profound and unnecessary damage to the Court's
legitimacy and to the Nation's commitment to the rule of law. Pp.
Justice O'Connor, Justice
Kennedy, and Justice Souter concluded in Part IV
that an examination of Roe v. Wade, 410 U.S. 113,
and (p.837)subsequent cases, reveals a number
of guiding principles that should control the assessment of the Pennsylvania
(a) To protect the central right recognized by
Roe while at the same time accommodating the State's profound interest in
potential life, see id., at 162, the undue burden
standard should be employed. An undue burden exists, and therefore a provision
of law is invalid, if its purpose or effect is to place substantial obstacles in
the path of a woman seeking an abortion before the fetus attains viability.
(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. Pp. 869-879.
Justice O'Connor, Justice
Kennedy, and Justice Souter delivered the opinion
of the Court with respect to Parts V-A and V-C, concluding
1. As construed by the Court of Appeals, § 3203's
medical emergency definition is intended to assure that compliance with the
State's abortion regulations would not in any way pose a significant threat to a
woman's life or health, and thus does not violate the essential holding of Roe, supra, at 164. Although the definition could
be interpreted in an unconstitutional manner, this Court defers to lower federal
court interpretations of state law unless they amount to "plain" error. Pp. 879-880.
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 (p.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. Section 3209 embodies a view of
marriage consonant with the common law status of married women, but repugnant to
this Court's present understanding of marriage and of the nature of the rights
secured by the Constitution. See Planned Parenthood of Central
Mo. v. Danforth, 428 U.S. 52, 69. Pp. 887-898.
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. 900-901.
Justice O'Connor, Justice
Kennedy, and Justice Souter concluded in Parts V-B
1. Section 3205's informed consent provision is not
an undue burden on a woman's constitutional right to decide to terminate a
pregnancy. To the extent Akron I, 462 U.S.,
at 444, and Thornburgh, 476 U.S., at
762, find a constitutional violation when the government requires, as it
does here, the giving of truthful, 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, 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 (p.839)on the present record and in the context of this facial
challenge. Pp. 881-887.
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. Pp. 899-900.
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. 930, 934-936.
The Chief Justice, joined
by Justice White, Justice Scalia, and Justice Thomas, concluded that:
1. Although Roe v. Wade, 410
U.S. 113, is not directly implicated by the Pennsylvania statute, which
simply regulates, and does not prohibit, abortion, a reexamination of the
"fundamental right" Roe accorded to a woman's decision to abort a fetus,
with the concomitant requirement that any state regulation of abortion survive
"strict scrutiny," id., at 154-156, is warranted by
the confusing and uncertain state of this Court's post-Roe decisional
law. A review of post-Roe cases demonstrates both that they have expanded
upon Roe in imposing increasingly greater restrictions on the States, see
Thornburgh v. American College of Obstetricians and
Gynecologists, 476 U.S. 747, 783 (Burger, C.J., dissenting), and that
the Court has become increasingly more divided, none of the last three such
decisions having commanded a majority opinion, see Ohio v.
Akron Center for Reproductive Health, 497 U.S. 502; Hodgson v. Minnesota, 497 U.S. 417; Webster v. Reproductive Health Services, 492 U.S. 490.
This confusion and uncertainty complicated the task of the Court of Appeals,
which concluded that the "undue burden" standard adopted by Justice O'Connor in Webster and Hodgson governs
the present cases. Pp. 944-951.
2. The Roe Court reached too far when it
analogized the right to abort a fetus to the rights involved in Pierce v. Society of Sisters, 268 U.S. 510; Meyer v. Nebraska, 262 U.S. 390; Loving v.
Virginia, 388 U.S. 1; and Griswold v. Connecticut,
381 U.S. 479, and
thereby deemed the right to abortion to be "fundamental." None of these
decisions endorsed an all-encompassing "right of privacy," as Roe, supra, at 152-153, claimed. Because abortion
involves the purposeful termination of potential life, the abortion decision
must be recognized as sui generis, different in kind from the rights
protected in the earlier cases under the rubric of personal or family privacy
and autonomy. And the historical traditions of the American people--as evidenced
by the English common (p.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. 951-953.
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. 964-966.
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. 966.
5. Section 3205's requirements are rationally
related to the State's legitimate interest in assuring that a woman's consent to
an abortion be fully informed. The requirement that a physician disclose certain
information about the abortion procedure and its risks and alternatives is not a
large burden and is clearly related to maternal health and the State's interest
in informed consent. In addition, a State may rationally decide that physicians
are better qualified than counselors to impart this information and answer
questions about the abortion alternatives' medical aspects. The requirement that
information be provided about the availability of paternal child support and
state-funded alternatives is also related to the State's informed consent
interest, and furthers the State's interest in preserving unborn life. That such
information might create some uncertainty and persuade some women to forgo
abortions only demonstrates that it might make a difference and is therefore
relevant to a woman's informed choice. In light of this plurality's rejection of
Roe's "fundamental right" approach to this subject, the Court's contrary
holding in Thornburgh is not controlling here. For the same reason, this
Court's previous holding invalidating a State's 24-hour mandatory waiting period
should not be followed. The waiting period helps ensure that a woman's decision
to abort is a well-considered one, and rationally furthers the State's
legitimate interest in maternal health and (p.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. 966-970.
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, M., Inc. v. Ashcroft, 462 U.S. 476. It is reasonably
designed to further the State's important and legitimate interest "in the
welfare of its young citizens, whose immaturity, inexperience, and lack of
judgment may sometimes impair their ability to exercise their rights wisely."
Hodgson, supra, at 444. Pp. 970-971.
7. Section 3214(a)'s requirement that abortion
facilities file a report on each abortion is constitutional because it
rationally furthers the State's legitimate interests in advancing the state of
medical knowledge concerning maternal health and prenatal life, in gathering
statistical information with respect to patients, and in ensuring compliance
with other provisions of the Act, while keeping the reports completely
confidential. Public disclosure of other reports made by facilities receiving
public funds--those identifying the facilities and any parent, subsidiary, or
affiliated organizations, § 3207(b), and those revealing the total number of
abortions performed, broken down by trimester, § 3214(f)--are rationally related
to the State's legitimate interest in informing taxpayers as to who is
benefiting from public funds and what services the funds are supporting; and
records relating to the expenditure of public funds are generally available to
the public under Pennsylvania law. Pp. 976-977.
Justice Scalia, joined by
The Chief Justice, Justice White, and Justice Thomas, concluded that a woman's decision to abort her
unborn child is not a constitutionally protected "liberty," because (1) the
Constitution says absolutely nothing about it, and (2) the longstanding
traditions of American society have permitted it to be legally proscribed. See,
e.g., Ohio v. Akron Center for Reproductive Health,
497 U.S. 502, 520 (Scalia, J., concurring). The
Pennsylvania statute should be upheld in its entirety under the rational basis
test. Pp. 979-981.
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. 911. Blackmun, J., filed an opinion concurring in part, concurring
in the judgment in part, and dissenting in part, post, p.
922. Rehnquist, C.J., filed an opinion concurring in the judgment
in part and dissenting in part, in which (p.842)White, Scalia, and Thomas, JJ., joined, post, p. 944. Scalia, J., filed an opinion concurring in the judgment in
part and dissenting in part, in which Rehnquist, C.J.,
and White and Thomas, JJ.,
joined, post, p. 979.
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
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, (p.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.
Liberty finds no refuge in a jurisprudence of
doubt. Yet, 19 years after our holding that the Constitution protects a woman's
right to terminate her pregnancy in its early stages, Roe v.
Wade, 410 U.S. 113 (1973), that definition of liberty is still
questioned. Joining the respondents as amicus curiae, the United States,
as it has done in five other cases in the last decade, again asks us to overrule
Roe. See Brief for Respondents 104-117; Brief for United States as Amicus Curiae 8.
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 902. 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).(p.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
The Court of Appeals found it necessary to follow an elaborate course
of reasoning even to identify the first premise to use to determine whether the
statute enacted by Pennsylvania meets constitutional standards. See 947 F.2d, at 687-698. And at oral argument in this Court, the
attorney for the parties challenging the statute took the position that none of
the enactments can be upheld without overruling Roe v. Wade. Tr. of Oral Arg. 5-6. We disagree with that analysis; but we
acknowledge that our decisions after Roe cast doubt upon the meaning and
reach of its holding. Further, The Chief Justice admits
that he would overrule the central holding of Roe and adopt the rational
relationship test as the sole criterion of constitutionality. See post, at 944, 966. 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, (p.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.
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.
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 (1887), the Clause has been understood to contain a
substantive component as well, one "barring certain government actions
regardless of the fairness of the procedures used to implement them." Daniels v. Williams, 474 U.S. 327, 331 (1986). As Justice
Brandeis (joined by Justice Holmes) observed, "[d]espite arguments to the
contrary which had seemed to me persuasive, it is settled that the due process
clause of the Fourteenth (p.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 (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 (1961)
(Harlan, J., dissenting from dismissal on jurisdictional grounds) (quoting Hurtado v. California, 110 U.S. 516, 532 (1884)).
The most familiar of the substantive liberties protected by the
Fourteenth Amendment are those recognized by the Bill of Rights. We have held
that the Due Process Clause of the Fourteenth Amendment incorporates most of the
Bill of Rights against the States. See, e.g., Duncan v.
Louisiana, 391 U.S. 145, 147-148 (1968). It is tempting, as a means
of curbing the discretion of federal judges, to suppose that liberty encompasses
no more than those rights already guaranteed to the individual against federal
interference by the express provisions of the first eight amendments to the
Constitution. See Adamson v. California, 332 U.S. 46, 68-92
(1947) (Black, J., dissenting). But of course this Court has never
accepted that view.
It is also tempting, for the same reason, to suppose that the Due
Process Clause protects only those practices, defined at the most specific
level, that were protected against government interference by other rules of law
when the Fourteenth Amendment was ratified. See Michael H. v.
Gerald D., 491 U.S. 110, 127-128, n.6 (1989) (opinion of Scalia, J.). But such a view would be inconsistent with our
law. It is a promise of the Constitution that there is a realm of personal
liberty which the government may not enter. We have vindicated this principle
before. Marriage is mentioned nowhere in the Bill of Rights, and interracial
marriage was illegal [paragraph continues next page]
[Currently at pages 833-847 (Syllabus and opinion of the
Proceed to pages 848-849 (opinion of the
Proceed to pages 850-901 (opinion of the
Proceed to pages 902-910 (Appendix to opinion
of the Court).
Proceed to pages 911-921 (Stevens dissenting
Proceed to pages 922-943 (Blackmun dissenting
Proceed to pages 944-978 (Rehnquist
dissenting and concurring).
Proceed to pages 979-1002 (Scalia dissenting
[833.*] Together with No. 91-902, Casey,
Governor of Pennsylvania, et al. v. Planned Parenthood of Southeastern
Pennsylvania et al., also on certiorari to the same court.
[+] 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 Prolife 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 Patrick Monaghan, Jay
Alan Sekulow, Walter M. Weber, 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 Columbus by Carl A. Anderson; for 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 et al. 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
Paul 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.
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