30

While the holding in Roe meant that states could no longer ban abortion in the first or second trimester, they could still regulate abortion, particularly in relation to women’s health following the first trimester. While some regulations fit the spirit of Roe’s holding—such as requiring abortions only be performed by licensed physicians—many states used women’s health as a justification for making abortion more difficult to procure. Roe thus launched a running conflict between conservative state legislatures and abortion rights groups, with courts deciding whether such regulations violated Roe’s legal framework.

Some of these regulations were clearly unconstitutional, being designed more as shows of support for the pro-life movement than genuine attempts to alter legal doctrine or change policy. Others led to substantive legal conflicts. Take, for example, an “informed consent” regulation that requires women seeking an abortion to receive information about the practice prior to undergoing the procedure. One could argue that such a provision is constitutional because it provides health information to the woman (informed consent is a normal part of surgical procedures) and presents no substantial barrier to getting an abortion. On the other hand, depending on what the state requires physicians to present—such as potentially inaccurate information or smuggling morality arguments into an assessment of risks—the requirement could be viewed as interference with the patient/physician relationship Roe protects.

As another example, imagine a state law that mandates abortion clinics must meet certain building or medical standards. Again, one could argue this makes clinics safer and does not violate or burden abortion rights. In response, abortion rights advocates could respond the state’s specific building requirements do not actually make the procedure safer, and are instead designed to drive abortion clinics out of business by increasing their costs.

During the 1970s and early 1980s, the Court generally protected Roe and was relatively vigilant in striking down state regulations the majority felt went too far in restricting abortion rights. However, two terms of the Reagan administration led to the appointment of four new justices on the Court, moving the balance of power to the right. By the late 1980s, Roe seemed to be in jeopardy, as a fractured Court upheld a set of Missouri laws regulating abortion that would almost certainly have been struck down in years prior. While the Court did not overturn Roe in that case, for many observers, it seemed only a matter of time before it would do so.

The question of whether Roe v. Wade remained good law came to a head in Planned Parenthood v. Casey (1992). The landmark case resulted from amendments to Pennsylvania’s existing abortion regulations. Three amendments, in particular, led to legal challenges—1) an informed consent requirement that mandated a 24-hour waiting period before having an abortion, 2) a parental consent requirement (absent a judicial bypass), and 3) a spousal notification requirement. Planned Parenthood sued, arguing these regulations violated abortion rights as established by Roe. In doing so, it directly presented the question as to whether Roe should be overturned, likely reasoning that abortion rights could be ended through slow erosion as well as overturning precedent, and that time was not on their side.

Defying expectations, Justices O’Connor, Souter, and Kennedy joined with Justice Blackmun (the author of Roe) and Justice Stevens in upholding the “essential holding” of Roe: that women had a right to an abortion without undue interference from the state, at least prior to fetal viability. At the same time, O’Connor, Souter, and Kennedy’s plurality opinion weakened Roe, making it easier for states to regulate abortions. The plurality opinion threw out the trimester system, replacing it with viability (or when a fetus can survive outside the womb) as the relevant threshold for state regulation, and introduced an “undue burden” test for assessing the constitutionality of state laws that regulated abortions prior to fetal viability.

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Planned Parenthood v. Casey

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505 U.S. 833 (1992)

Facts: Pennsylvania passed several amendments to its existing abortion regulations, including an informed consent/24-hour waiting period before having an abortion, requiring parental consent for a minor seeking an abortion, and requiring spousal notification for a married woman seeking an abortion. Planned Parenthood and other clinics challenged these regulations as violating the right to an abortion grounded in Roe v. Wade.

Question: Did Pennsylvania’s amendments to its abortion regulations— namely 1) an informed consent provision, 2) a parental consent provision, 3) and a spousal notification provision—violate the Fourteenth Amendment?

Vote: No, No, Yes, 5-4

For the Court: Justice O’Connor

Concurring in part and dissenting in part: Justice Stevens

Concurring in part, concurring in the judgment in part, and dissenting in part: Justice Blackmun

Concurring in the judgment and dissenting in part: Justice Rehnquist

Concurring in the judgment and dissenting in part: Justice Scalia

JUSTICE O’CONNOR, JUSTICE KENNEDY, and JUSTICE SOUTER announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, V-A, V-C, and VI, an opinion with respect to Part V-E, in which JUSTICE STEVENS joins, and an opinion with respect to Parts IV; V-B, and V-D.

I

Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman’s right to terminate her pregnancy in its early stages, Roe v. Wade (1973), that definition of liberty is still questioned…

At issue in these cases are five provisions of the Pennsylvania Abortion Control Act of 1982, as amended in 1988 and 1989… 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. 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. 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…

After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed.

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… 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… 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.” …

… It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. We have vindicated this principle before. Marriage is mentioned nowhere in the Bill of Rights and interracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia (1967). Similar examples may be found in … Griswold v. Connecticut (1965), as well as in … Pierce v. Society of Sisters (1925) … and in Meyer v. Nebraska (1923) …

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…

Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education…  Our cases recognize “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” … These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

These considerations begin our analysis of the woman’s interest in terminating her pregnancy but cannot end it, for this reason: though the abortion decision may originate within the zone of conscience and belief, it is more than a philosophic exercise. Abortion is a unique act. It is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedure; for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one’s beliefs, for the life or potential life that is aborted. Though abortion is conduct, it does not follow that the State is entitled to proscribe it in all instances…

It should be recognized, moreover, that in some critical respects the abortion decision is of the same character as the decision to use contraception… They support the reasoning in Roe relating to the woman’s liberty because they involve personal decisions concerning not only the meaning of procreation but also human responsibility and respect for it…

… the reservations any of us may have in reaffirming the central holding of Roe are outweighed by the explication of individual liberty we have given combined with the force of stare decisis. We turn now to that doctrine.

III

A

… it is common wisdom that the rule of stare decisis is not an “inexorable command,” and certainly it is not such in every constitutional case… Rather, when this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. Thus, for example, we may ask whether the rule has proven to be intolerable simply in defying practical workability; whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation;; whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine; or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification…

1

Although Roe has engendered opposition, it has in no sense proven “unworkable” … the required determinations fall within judicial competence.

2

The inquiry into reliance counts the cost of a rule’s repudiation as it would fall on those who have relied reasonably on the rule’s continued application…

… Abortion is customarily chosen as an unplanned response to the consequence of unplanned activity or to the failure of conventional birth control, and except on the assumption that no intercourse would have occurred but for Roe’s holding, such behavior may appear to justify no reliance claim…

… But to do this would be simply to refuse to face the fact that for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives…

3

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…

4

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, and advances in neonatal care have advanced viability to a point somewhat earlier. 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 inquiry to this point shows Roe’s underpinnings unweakened in any way affecting its central holding. While it has engendered disapproval, it has not been unworkable. An entire generation has come of age free to assume Roe’s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left Roe’s central holding a doctrinal remnant.

Roe portends no developments at odds with other precedent for the analysis of personal liberty; and no changes of fact have rendered viability more or less appropriate as the point at which the balance of interests tips…

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 (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… Fourteen years later… the Depression had come and, with it, the lesson that seemed unmistakable to most people by 1937, that the interpretation of contractual freedom … rested on fundamentally false factual assumptions about the capacity of a relatively unregulated market to satisfy minimal levels of human welfare…

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 (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… But this understanding of the facts and the rule it was stated to justify were repudiated in Brown v. Board of Education (1954) …

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…

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…

C

… As Americans of each succeeding generation are rightly told, the Court cannot buy support for its decisions by spending money and, except to a minor degree, it cannot independently coerce obedience to its decrees. The Court’s power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands…

… However upsetting it may be to those most directly affected when one judicially derived rule replaces another, the country can accept some correction of error without necessarily questioning the legitimacy of the Court.

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…

… whatever the premises of opposition may be, only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure, and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court’s legitimacy beyond any serious question…

The country’s loss of confidence in the Judiciary would be underscored by an equally certain and equally reasonable condemnation for another failing in overruling unnecessarily and under pressure…

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… And it falls to us to give some real substance to the woman’s liberty to determine whether to carry her pregnancy to full term.

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…

… 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… 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, 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.

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…

The trimester framework no doubt was erected to ensure that the woman’s right to choose not become so subordinate to the State’s interest in promoting fetal life that her choice exists in theory but not in fact. We do not agree, however, that the trimester approach is necessary to accomplish this objective. A framework of this rigidity was unnecessary and in its later interpretation sometimes contradicted the State’s permissible exercise of its powers…

… The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it. Only where state regulation imposes an undue burden on a woman’s ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause…

… Not all governmental intrusion is of necessity unwarranted; and that brings us to the other basic flaw in the trimester framework: even in Roe’s terms, in practice it undervalues the State’s interest in the potential life within the woman…

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…

Because we set forth a standard of general application to which we intend to adhere, it is important to clarify what is meant by an undue burden.

A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it. And a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends…

Unless it has that effect on her right of choice, a state measure designed to persuade her to choose childbirth over abortion will be upheld if reasonably related to that goal. Regulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue burden…

V

… We now consider the separate statutory sections at issue.

A

…

B

We next consider the informed consent requirement. Except in a medical emergency, the statute requires that at least 24 hours before performing an abortion a physician inform the woman of the nature of the procedure, the health risks of the abortion and of childbirth, and the “probable gestational age of the unborn child.” The physician or a qualified nonphysician must inform the woman of the availability of printed materials published by the State describing the fetus and providing information about medical assistance for childbirth, information about child support from the father, and a list of agencies which provide adoption and other services as alternatives to abortion. An abortion may not be performed unless the woman certifies in writing that she has been informed of the availability of these printed materials and has been provided them if she chooses to view them.

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 this respect, the statute is unexceptional. Petitioners challenge the statute’s definition of informed consent because it includes the provision of specific information by the doctor and the mandatory 24-hour waiting period…

… It cannot be questioned that psychological well-being is a facet of health. Nor can it be doubted that most women considering an abortion would deem the impact on the fetus relevant, if not dispositive, to the decision. In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed. If the information the State requires to be made available to the woman is truthful and not misleading, the requirement may be permissible…

… the idea that important decisions will be more informed and deliberate if they follow some period of reflection does not strike us as unreasonable, particularly where the statute directs that important information become part of the background of the decision…

Whether the mandatory 24-hour waiting period is nonetheless invalid because in practice it is a substantial obstacle to a woman’s choice to terminate her pregnancy is a closer question. The findings of fact by the District Court indicate that because of the distances many women must travel to reach an abortion provider, the practical effect will often be a delay of much more than a day because the waiting period requires that a woman seeking an abortion make at least two visits to the doctor. The District Court also found that in many instances this will increase the exposure of women seeking abortions to “the harassment and hostility of antiabortion protestors demonstrating outside a clinic.” 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…

… A particular burden is not of necessity a substantial obstacle. Whether a burden falls on a particular group is a distinct inquiry from whether it is a substantial obstacle even as to the women in that group. And the District Court did not conclude that the waiting period is such an obstacle even for the women who are most burdened by it. Hence, on the record before us, and in the context of this facial challenge, we are not convinced that the 24-hour waiting period constitutes an undue burden…

… the right protected by Roe is a right to decide to terminate a pregnancy free of undue interference by the State. Because the informed consent requirement facilitates the wise exercise of that right, it cannot be classified as an interference with the right Roe protects. The informed consent requirement is not an undue burden on that right.

C

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…

The District Court heard the testimony of numerous expert witnesses, and made detailed findings of fact regarding the effect of this statute. These included:

The ‘bodily injury’ exception could not be invoked by a married woman whose husband, if notified, would, in her reasonable belief, threaten to (a) publicize her intent to have an abortion to family, friends or acquaintances; (b) retaliate against her in future child custody or divorce proceedings; (c) inflict psychological intimidation or emotional harm upon her, her children or other persons; (d) inflict bodily harm on other persons such as children, family members or other loved ones; or (e) use his control over finances to deprive of necessary monies for herself or her children…

These findings are supported by studies of domestic violence. The American Medical Association (AMA) has published a summary of the recent research in this field, which indicates that in an average 12-month period in this country, approximately two million women are the victims of severe assaults by their male partners…

The limited research that has been conducted with respect to notifying one’s husband about an abortion, although involving samples too small to be representative, also supports the District Court’s findings of fact. The vast majority of women notify their male partners of their decision to obtain an abortion. In many cases in which married women do not notify their husbands, the pregnancy is the result of an extramarital affair. Where the husband is the father, the primary reason women do not notify their husbands is that the husband and wife are experiencing marital difficulties, often accompanied by incidents of violence…

… there are millions of women in this country who are the victims of regular physical and psychological abuse at the hands of their husbands. Should these women become pregnant, they may have very good reasons for not wishing to inform their husbands of their decision to obtain an abortion. Many may have justifiable fears of physical abuse, but may be no less fearful of the consequences of reporting prior abuse… many women who are pregnant as a result of sexual assaults by their husbands will be unable to avail themselves of the exception for spousal sexual assault, because the exception requires that the woman have notified law enforcement authorities within 90 days of the assault…

The spousal notification requirement is thus likely to prevent a significant number of women from obtaining an abortion. It does not merely make abortions a little more difficult or expensive to obtain; for many women, it will impose a substantial obstacle…

This conclusion is in no way inconsistent with our decisions upholding parental notification or consent requirements… Those enactments, and our judgment that they are constitutional, are based on the quite reasonable assumption that minors will benefit from consultation with their parents and that children will often not realize that their parents have their best interests at heart. We cannot adopt a parallel assumption about adult women…

We recognize that a husband has a “deep and proper concern and interest … in his wife’s pregnancy and in the growth and development of the fetus she is carrying.” …  [but] it is an inescapable biological fact that state regulation with respect to the child a woman is carrying will have a far greater impact on the mother’s liberty than on the father’s… “the right of privacy … is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” The Constitution protects individuals, men and women alike, from unjustified state interference, even when that interference is enacted into law for the benefit of their spouses…

D

We next consider the parental consent provision…

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… in our view, the one-parent consent requirement and judicial bypass procedure are constitutional…

E

…

VI

Our Constitution is a covenant running from the first generation of Americans to us and then to future generations. It is a coherent succession. Each generation must learn anew that the Constitution’s written terms embody ideas and aspirations that must survive more ages than one. We accept our responsibility not to retreat from interpreting the full meaning of the covenant in light of all of our precedents. We invoke it once again to define the freedom guaranteed by the Constitution’s own promise, the promise of liberty…

JUSTICE STEVENS, concurring in part and dissenting in part.

The portions of the Court’s opinion that I have joined are more important than those with which I disagree…

I

…

II

My disagreement with the joint opinion begins with its understanding of the trimester framework established in Roe. Contrary to the suggestion of the joint opinion, it is not a “contradiction” to recognize that the State may have a legitimate interest in potential human life and, at the same time, to conclude that that interest does not justify the regulation of abortion before viability (although other interests, such as maternal health, may). The fact that the State’s interest is legitimate does not tell us when, if ever, that interest outweighs the pregnant woman’s interest in personal liberty. It is appropriate, therefore, to consider more carefully the nature of the interests at stake…

… I agree with the joint opinion that the State may “expres[s] a preference for normal childbirth,” that the State may take steps to ensure that a woman’s choice “is thoughtful and informed,” and that “States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning.” Serious questions arise, however, when a State attempts to “persuade the woman to choose childbirth over abortion.” … The State may promote its preferences by funding childbirth, by creating and maintaining alternatives to abortion, and by espousing the virtues of family; but it must respect the individual’s freedom to make such judgments.

… we have upheld regulations of abortion that are not efforts to sway or direct a woman’s choice, but rather are efforts to enhance the deliberative quality of that decision or are neutral regulations on the health aspects of her decision… Conversely, we have consistently rejected state efforts to prejudice a woman’s choice, either by limiting the information available to her, or by “requir[ing] the delivery of information designed ‘to influence the woman’s informed choice between abortion or childbirth.’” …

III

The 24-hour waiting period … raises even more serious concerns. Such a requirement arguably furthers the Commonwealth’s interests in two ways, neither of which is constitutionally permissible.

First, it may be argued that the 24-hour delay is justified by the mere fact that it is likely to reduce the number of abortions, thus furthering the Commonwealth’s interest in potential life. But such an argument would justify any form of coercion that placed an obstacle in the woman’s path. The Commonwealth cannot further its interests by simply wearing down the ability of the pregnant woman to exercise her constitutional right.

Second, it can more reasonably be argued that the 24-hour delay furthers the Commonwealth’s interest in ensuring that the woman’s decision is informed and thoughtful. But there is no evidence that the mandated delay benefits women or that it is necessary to enable the physician to convey any relevant information to the patient. The mandatory delay thus appears to rest on outmoded and unacceptable assumptions about the decisionmaking capacity of women…

In the alternative, the delay requirement may be premised on the belief that the decision to terminate a pregnancy is presumptively wrong. This premise is illegitimate. Those who disagree vehemently about the legality and morality of abortion agree about one thing: The decision to terminate a pregnancy is profound and difficult. No person undertakes such a decision lightly-and States may not presume that a woman has failed to reflect adequately merely because her conclusion differs from the State’s preference…

IV

In my opinion, a correct application of the “undue burden” standard leads to the same conclusion concerning the constitutionality of these requirements. A state-imposed burden on the exercise of a constitutional right is measured both by its effects and by its character: A burden may be “undue” either because the burden is too severe or because it lacks a legitimate, rational justification.

The 24-hour delay requirement fails both parts of this test…

As indicated above, there is no legitimate reason to require a woman who has agonized over her decision to leave the clinic or hospital and return again another day. While a general requirement that a physician notify her patients about the risks of a proposed medical procedure is appropriate, a rigid requirement that all patients wait 24 hours or (what is true in practice) much longer to evaluate the significance of information that is either common knowledge or irrelevant is an irrational and, therefore, “undue” burden…

JUSTICE BLACKMUN, concurring in part, concurring in the judgment in part, and dissenting in part.

Three years ago … four Members of this Court appeared poised to “cas[t] into darkness the hopes and visions of every woman in this country” who had come to believe that the Constitution guaranteed her the right to reproductive choice.  All that remained between the promise of Roe and the darkness of the plurality was a single, flickering flame… But now, just when so many expected the darkness to fall, the flame has grown bright.

… I remain steadfast in my belief that the right to reproductive choice is entitled to the full protection afforded by this Court... And I fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light.

I

… In striking down the Pennsylvania statute’s spousal notification requirement, the Court has established a framework for evaluating abortion regulations that responds to the social context of women facing issues of reproductive choice. In determining the burden imposed by the challenged regulation, the Court inquires whether the regulation’s “purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”

Lastly, while I believe that the joint opinion errs in failing to invalidate the other regulations, I am pleased that the joint opinion has not ruled out the possibility that these regulations may be shown to impose an unconstitutional burden. The joint opinion makes clear that its specific holdings are based on the insufficiency of the record before it. I am confident that in the future evidence will be produced to show that “in a large fraction of the cases in which [these regulations are] relevant, [they] will operate as a substantial obstacle to a woman’s choice to undergo an abortion.”

II

… 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…  The factual premises of the trimester framework have not been undermined, 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:

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 …

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 … “[I]f this were a true and genuine concern, we would have to abandon vast areas of our constitutional jurisprudence…” …

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… 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…

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…

The 24-hour waiting period following the provision of the foregoing information is … 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…

III

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. This constricted view is reinforced by THE CHIEF JUSTICE’S exclusive reliance on tradition as a source of fundamental rights…

Given THE CHIEF JUSTICE’S exclusive reliance on tradition, people using contraceptives seem the next likely candidate for his list of outcasts.

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 her decision…

… Under his standard, States can ban abortion if that ban is rationally related to a legitimate state interest-a standard which the United States calls “deferential, but not toothless.” Yet when pressed at oral argument to describe the teeth, the best protection that the Solicitor General could offer to women was that a prohibition, enforced by criminal penalties, with no exception for the life of the mother, “could raise very serious questions.” …

Even if it is somehow “irrational” for a State to require a woman to risk her life for her child, what protection is offered for women who become pregnant through rape or incest? Is there anything arbitrary or capricious about a State’s prohibiting the sins of the father from being visited upon his offspring?

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…

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 (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…

I

… Although they reject the trimester framework that formed the underpinning of Roe, JUSTICES O’CONNOR, KENNEDY, and SOUTER adopt a revised undue burden standard to analyze the challenged regulations. We conclude, however, that such an outcome is an unjustified constitutional compromise, one which leaves the Court in a position to closely scrutinize all types of abortion regulations despite the fact that it lacks the power to do so under the Constitution…

We have held that a liberty interest protected under the Due Process Clause of the Fourteenth Amendment will be deemed fundamental if it is “implicit in the concept of ordered liberty.” Three years earlier… we referred to a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” …

In construing the phrase “liberty” incorporated in the Due Process Clause of the Fourteenth Amendment, we have recognized that its meaning extends beyond freedom from physical restraint. In Pierce v. Society of Sisters (1925), we held that it included a parent’s right to send a child to private school; in Meyer v. Nebraska (1923), we held that it included a right to teach a foreign language in a parochial school. Building on these cases, we have held that the term “liberty” includes a right to marry, Loving v. Virginia (1967); a right to procreate, Skinner v. Oklahoma (1942); and a right to use contraceptives, Griswold v. Connecticut (1965) … But a reading of these opinions makes clear that they do not endorse any all-encompassing “right of privacy.”

In Roe v. Wade, the Court recognized a “guarantee of personal privacy” which “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” We are now of the view that, in terming this right fundamental, the Court in Roe read the earlier opinions upon which it based its decision much too broadly. Unlike marriage, procreation, and contraception, abortion “involves the purposeful termination of a potential life.” 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.” … 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…

Nor do the historical traditions of the American people support the view that the right to terminate one’s pregnancy is “fundamental.” The common law which we inherited from England made abortion after “quickening” an offense. At the time of the adoption of the Fourteenth Amendment, statutory prohibitions or restrictions on abortion were commonplace; in 1868, at least 28 of the then-37 States and 8 Territories had statutes banning or limiting abortion. By the turn of the century virtually every State had a law prohibiting or restricting abortion on its books. By the middle of the present century, a liberalization trend had set in. But 21 of the restrictive abortion laws in effect in 1868 were still in effect in 1973 when Roe was decided, and an overwhelming majority of the States prohibited abortion unless necessary to preserve the life or health of the mother.  On this record, it can scarcely be said that any deeply rooted tradition of relatively unrestricted abortion in our history supported the classification of the right to abortion as “fundamental” under the Due Process Clause of the Fourteenth Amendment…

… The Court in Roe reached too far when it analogized the right to abort a fetus to the rights involved in Pierce, Meyer, Loving, and Griswold, and thereby deemed the right to abortion fundamental.

II

The joint opinion of JUSTICES O’CONNOR, KENNEDY, and SOUTER cannot bring itself to say that Roe was correct as an original matter, but the authors are of the view that “the immediate question is not the soundness of Roe’s resolution of the issue, but the precedential force that must be accorded to its holding.” …the opinion therefore contains an elaborate discussion of stare decisis. This discussion of the principle of stare decisis appears to be almost entirely dicta, because the joint opinion does not apply that principle in dealing with Roe. Roe decided that a woman had a fundamental right to an abortion. The joint opinion rejects that view. Roe decided that abortion regulations were to be subjected to “strict scrutiny” and could be justified only in the light of “compelling state interests.” The joint opinion rejects that view.  Roe analyzed abortion regulation under a rigid trimester framework, a framework which has guided this Court’s decision-making for 19 years. The joint opinion rejects that framework…

… Erroneous decisions in such constitutional cases are uniquely durable, because correction through legislative action, save for constitutional amendment, is impossible. It is therefore our duty to reconsider constitutional interpretations that “depar[t] from a proper understanding” of the Constitution…

The joint opinion discusses several stare decisis factors which, it asserts, point toward retaining a portion of Roe… surely there is no requirement, in considering whether to depart from stare decisis in a constitutional case, that a decision be more wrong now than it was at the time it was rendered. If that were true, the most outlandish constitutional decision could survive forever, based simply on the fact that it was no more outlandish later than it was when originally rendered…

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…

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…

… 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.  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 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.

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.  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… the simple fact that a generation or more had grown used to these major decisions did not prevent the Court from correcting its errors in those cases, nor should it prevent us from correctly interpreting the Constitution here…

Apparently realizing that conventional stare decisis principles do not support its position, the joint opinion advances a belief that retaining a portion of Roe is necessary to protect the “legitimacy” of this Court…

… 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. 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…

.. just as the Court should not respond to … protest by retreating from the decision simply to allay the concerns of the protesters, it should likewise not respond by determining to adhere to the decision at all costs lest it seem to be retreating under fire. Public protests should not alter the normal application of stare decisis, lest perfectly lawful protest activity be penalized by the Court itself…

… 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. 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 Plessybecause of its “intensely divisive” character. To us, adherence to Roe today under the guise of “legitimacy” would seem to resemble more closely adherence to Plessy on the same ground. Fortunately, the Court did not choose that option in Brown, and instead frankly repudiated Plessy…  The rule of Brown is not tied to popular opinion about the evils of segregation; it is a judgment that the Equal Protection Clause does not permit racial segregation, no matter whether the public might come to believe that it is beneficial…

… The end result of the joint opinion’s paeans of praise for legitimacy is the enunciation of a brand new standard for evaluating state regulation of a woman’s right to abortion–the “undue burden” standard. As indicated above, Roe v. Wade adopted a “fundamental right” standard under which state regulations could survive only if they met the requirement of “strict scrutiny.” While we disagree with that standard, it at least had a recognized basis in constitutional law at the time Roe was decided. The same cannot be said for the “undue burden” standard…

… Because the undue burden standard is plucked from nowhere, the question of what is a “substantial obstacle” to abortion will undoubtedly engender a variety of conflicting views. For example, in the very matter before us now, the authors of the joint opinion would uphold Pennsylvania’s 24-hour waiting period, concluding that a “particular burden” on some women is not a substantial obstacle.  But the authors would at the same time strike down Pennsylvania’s spousal notice provision, after finding that in a “large fraction” of cases the provision will be a substantial obstacle. And, while the authors conclude that the informed consent provisions do not constitute an “undue burden,” JUSTICE STEVENS would hold that they do…

Furthermore, while striking down the spousal notice regulation, the joint opinion would uphold a parental consent restriction that certainly places very substantial obstacles in the path of a minor’s abortion choice. The joint opinion is forthright in admitting that it draws this distinction based on a policy judgment that parents will have the best interests of their children at heart, while the same is not necessarily true of husbands as to their wives.  This may or may not be a correct judgment, but it is quintessentially a legislative one…

… 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.

III

A

This Court has held that it is certainly within the province of the States to require a woman’s voluntary and informed consent to an abortion…

We conclude that this provision of the statute is rationally related to the State’s interest in assuring that a woman’s consent to an abortion be a fully informed decision…

For the same reason, we do not feel bound to follow this Court’s previous holding that a State’s 24-hour mandatory waiting period is unconstitutional… Petitioners are correct that such a provision will result in delays for some women that might not otherwise exist, therefore placing a burden on their liberty. But the provision in no way prohibits abortions, and the informed consent and waiting period requirements do not apply in the case of a medical emergency. We are of the view that, in providing time for reflection and reconsideration, the waiting period helps ensure that a woman’s decision to abort is a well-considered one, and reasonably furthers the State’s legitimate interest in maternal health and in the unborn life of the fetus. It “is surely a small cost to impose to ensure that the woman’s decision is well considered in light of its certain and irreparable consequences on fetal life, and the possible effects on her own.”

B

In addition to providing her own informed consent, before an unemancipated woman under the age of 18 may obtain an abortion she must either furnish the consent of one of her parents, or must opt for the judicial procedure that allows her to bypass the consent requirement. Under the judicial bypass option, a minor can obtain an abortion if a state court finds that she is capable of giving her informed consent and has indeed given such consent, or determines that an abortion is in her best interests. Records of these court proceedings are kept confidential. The Act directs the state trial court to render a decision within three days of the woman’s application, and the entire procedure, including appeal to Pennsylvania Superior Court, is to last no longer than eight business days. The parental consent requirement does not apply in the case of a medical emergency…

We think it beyond dispute that a State “has a strong and legitimate interest in the welfare of its young citizens, whose immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise their rights wisely.” A requirement of parental consent to abortion, like myriad other restrictions placed upon minors in other contexts, is reasonably designed to further this important and legitimate state interest…

C

Section 3209 of the Act contains the spousal notification provision. It requires that, before a physician may perform an abortion on a married woman, the woman must sign a statement indicating that she has notified her husband of her planned abortion…

We first emphasize that Pennsylvania has not imposed a spousal consent requirement… of the type the Court struck down [previously]…

Petitioners contend that it should, however; they argue that the real effect of such a notice requirement is to give the power to husbands to veto a woman’s abortion choice. The District Court indeed found that the notification provision created a risk that some woman who would otherwise have an abortion will be prevented from having one. For example, petitioners argue, many notified husbands will prevent abortions through physical force, psychological coercion, and other types of threats. But Pennsylvania has incorporated exceptions in the notice provision in an attempt to deal with these problems. For instance, a woman need not notify her husband if the pregnancy is the result of a reported sexual assault, or if she has reason to believe that she would suffer bodily injury as a result of the notification…

The question before us is therefore whether the spousal notification requirement rationally furthers any legitimate state interests. We conclude that it does. First, a husband’s interests in procreation within marriage and in the potential life of his unborn child are certainly substantial ones… The State itself has legitimate interests both in protecting these interests of the father and in protecting the potential life of the fetus, and the spousal notification requirement is reasonably related to advancing those state interests. By providing that a husband will usually know of his spouse’s intent to have an abortion, the provision makes it more likely that the husband will participate in deciding the fate of his unborn child, a possibility that might otherwise have been denied him…

The State also has a legitimate interest in promoting “the integrity of the marital relationship.” … In our view, the spousal notice requirement is a rational attempt by the State to improve truthful communication between spouses and encourage collaborative decisionmaking, and thereby fosters marital integrity…

The spousal notice provision will admittedly be unnecessary in some circumstances, and possibly harmful in others, but … the Pennsylvania Legislature was in a position to weigh the likely benefits of the provision against its likely adverse effects, and presumably concluded, on balance, that the provision would be beneficial. Whether this was a wise decision or not, we cannot say that it was irrational…

D

…

E

…

IV

For the reasons stated, we therefore would hold that each of the challenged provisions of the Pennsylvania statute is consistent with the Constitution. It bears emphasis that our conclusion in this regard does not carry with it any necessary approval of these regulations. Our task is, as always, to decide only whether the challenged provisions of a law comport with the United States Constitution. If, as we believe, these do, their wisdom as a matter of public policy is for the people of Pennsylvania to decide.

JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE THOMAS join, concurring in the judgment in part and dissenting in part.

… 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… A State’s choice between two positions on which reasonable people can disagree is constitutional even when (as is often the case) it intrudes upon a “liberty” in the absolute sense. Laws against bigamy, for example–with which entire societies of reasonable people disagree–intrude upon men and women’s liberty to marry and live with one another. But bigamy happens not to be a liberty specially “protected” by the Constitution…

… The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the “concept of existence, of meaning, of the universe, and of the mystery of human life.”  Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected–because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed…

… “reasoned judgment” does not begin by begging the question, as Roe and subsequent cases unquestionably did by assuming that what the State is protecting is the mere “potentiality of human life.” The whole argument of abortion opponents is that what the Court calls the fetus and what others call the unborn child is a human life. Thus, whatever answer Roe came up with after conducting its “balancing” is bound to be wrong, unless it is correct that the human fetus is in some critical sense merely potentially human. There is of course no way to determine that as a legal matter; it is in fact a value judgment. Some societies have considered newborn children not yet human, or the incompetent elderly no longer so…

… The right to abort, we are told, inheres in “liberty” because it is among “a person’s most basic decisions”; it involves a “most intimate and personal choic[e]”; it is “central to personal dignity and autonomy” … But it is obvious to anyone applying “reasoned judgment” that the same adjectives can be applied to many forms of conduct that this Court (including one of the Justices in today’s majority) … has held are not entitled to constitutional protection-because, like abortion, they are forms of conduct that have long been criminalized in American society. Those adjectives might be applied, for example, to homosexual sodomy, polygamy, adult incest, and suicide, all of which are equally “intimate” and “deep[ly] personal” decisions involving “personal autonomy and bodily integrity,” and all of which can constitutionally be proscribed because it is our unquestionable constitutional tradition that they are proscribable. It is not reasoned judgment that supports the Court’s decision; only personal predilection…

… The joint opinion explains that a state regulation imposes an “undue burden” if it “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” An obstacle is “substantial,” we are told, if it is “calculated[,] [not] to inform the woman’s free choice, [but to] hinder it.” This latter statement cannot possibly mean what it says. Any regulation of abortion that is intended to advance what the joint opinion concedes is the State’s “substantial” interest in protecting unborn life will be “calculated [to] hinder” a decision to have an abortion… Consciously or not, the joint opinion’s verbal shell game will conceal raw judicial policy choices concerning what is “appropriate” abortion legislation…

… The “undue burden” standard is not at all the generally applicable principle the joint opinion pretends it to be; rather, it is a unique concept created especially for these cases, to preserve some judicial foothold in this ill-gotten territory. In claiming otherwise, the three Justices show their willingness to place all constitutional rights at risk in an effort to preserve what they deem the “central holding in Roe.” …

… Most significantly, the joint opinion’s conclusion that the spousal notice requirement of the Act, imposes an “undue burden” is based in large measure on the District Court’s “detailed findings of fact,” which the joint opinion sets out at great length…

I do not, of course, have any objection to the notion that, in applying legal principles, one should rely only upon the facts that are contained in the record… what is remarkable about the joint opinion’s fact-intensive analysis is that it does not result in any measurable clarification of the “undue burden” standard. Rather, the approach of the joint opinion is, for the most part, simply to highlight certain facts in the record that apparently strike the three Justices as particularly significant in establishing (or refuting) the existence of an undue burden; after describing these facts, the opinion then simply announces that the provision either does or does not impose a “substantial obstacle” or an “undue burden.” …

… The Court’s reliance upon stare decisis can best be described as contrived. It insists upon the necessity of adhering not to all of Roe, but only to what it calls the “central holding.” It seems to me that stare decisis ought to be applied even to the doctrine of stare decisis, and I confess never to have heard of this new, keep-what-you-want-and-throwaway-the-rest version…

… I have always thought, and I think a lot of other people have always thought, that the arbitrary trimester framework, which the Court today discards, was quite as central to Roe as the arbitrary viability test, which the Court today retains. It seems particularly ungrateful to carve the trimester framework out of the core of Roe, since its very rigidity (in sharp contrast to the utter indeterminability of the “undue burden” test) is probably the only reason the Court is able to say, in urging stare decisis, that Roe “has in no sense proven ‘unworkable,’” …

… The Court’s description of the place of Roe in the social history of the United States is unrecognizable. Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue–as it does over other issues, such as the death penalty–but that disagreement was being worked out at the state level. As with many other issues, the division of sentiment within each State was not as closely balanced as it was among the population of the Nation as a whole, meaning not only that more people would be satisfied with the results of state-by-state resolution, but also that those results would be more stable. Pre-Roe, moreover, political compromise was possible.

Roe’s mandate for abortion on demand destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level…

I cannot agree with, indeed I am appalled by, the Court’s suggestion that the decision whether to stand by an erroneous constitutional decision must be strongly influenced–against overruling, no less–by the substantial and continuing public opposition the decision has generated. The Court’s judgment that any other course would “subvert the Court’s legitimacy” must be another consequence of reading the error-filled history book that described the deeply divided country brought together by Roe...

But whether it would “subvert the Court’s legitimacy” or not, the notion that we would decide a case differently from the way we otherwise would have in order to show that we can stand firm against public disapproval is frightening…

… There is a poignant aspect to today’s opinion. Its length, and what might be called its epic tone, suggest that its authors believe they are bringing to an end a troublesome era in the history of our Nation and of our Court. “ …

There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82d year of his life, the 24th of his Chief Justiceship, the second after his opinion in Dred Scott. He is all in black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair. He sits facing the viewer and staring straight out. There seems to be on his face, and in his deep-set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the luster of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case–its already apparent consequences for the Court and its soon-to-be-played-out consequences for the Nation–burning on his mind. I expect that two years earlier he, too, had thought himself “call[ing] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.”

It is no more realistic for us in this litigation, than it was for him in that, to think that an issue of the sort they both involved–an issue involving life and death, freedom and subjugation–can be “speedily and finally settled” by the Supreme Court… Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.

We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.