|Akron v. Akron Center for Reproductive Health, Inc.
651 F.2d 1198, affirmed in part and reversed in part.
[ Powell ]
[ O'Connor ]
Akron v. Akron Center for Reproductive Health, Inc.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
JUSTICE O'CONNOR, with whom JUSTICE WHITE and JUSTICE REHNQUIST join, dissenting.
In Roe v. Wade, 410 U.S. 113 (1973), the Court held that the
right of privacy . . . founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action . . . is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.
Id. at 153. The parties in these cases have not asked the Court to reexamine the validity of that holding, and the court below did not address it. Accordingly, the Court does not reexamine its previous holding. Nonetheless, it is apparent from the Court's opinion that neither sound constitutional theory nor our need to decide cases based on the application of neutral principles can accommodate an analytical framework that varies according to the "stages" of pregnancy, where those stages, and their concomitant standards of review, differ according to the level of medical technology available when a particular challenge to state regulation occurs. The Court's analysis of the Akron regulations is inconsistent both with [p453] the methods of analysis employed in previous cases dealing with abortion, and with the Court's approach to fundamental rights in other areas.
Our recent cases indicate that a regulation imposed on "a lawful abortion ‘is not unconstitutional unless it unduly burdens the right to seek an abortion.'" Maher v. Roe, 432 U.S. 464, 473 (1977) (quoting Bellotti v. Baird, 428 U.S. 132, 147 (1977) (Bellotti I)). See also Harris v. McRae, 448 U.S. 297, 314 (1980). In my view, this "unduly burdensome" standard should be applied to the challenged regulations throughout the entire pregnancy without reference to the particular "stage" of pregnancy involved. If the particular regulation does not "unduly burde[n]" the fundamental right, Maher, supra, at 473, then our evaluation of that regulation is limited to our determination that the regulation rationally relates to a legitimate state purpose. Irrespective of what we may believe is wise or prudent policy in this difficult area,
the Constitution does not constitute us as "Platonic Guardians," nor does it vest in this Court the authority to strike down laws because they do not meet our standards of desirable social policy, "wisdom," or "common sense."
Plyler v. Doe, 457 U.S. 202, 242 (1982) (BURGER, C.J., dissenting).
The trimester or "three-stage" approach adopted by the Court in Roe, [n1] and, in a modified form, employed by the [p454] Court to analyze the regulations in these cases, cannot be supported as a legitimate or useful framework for accommodating the woman's right and the State's interests. The decision of the Court today graphically illustrates why the trimester approach is a completely unworkable method of accommodating the conflicting personal rights and compelling state interests that are involved in the abortion context.
As the Court indicates today, the State's compelling interest in maternal health changes as medical technology changes, and any health regulation must not "depart from accepted medical practice." Ante at 431. [n2] In applying this standard, the Court holds that "the safety of second trimester abortions has increased dramatically" since 1973, when [p455] Roe was decided. Ante at 435-436 (footnote omitted). Although a regulation such as one requiring that all second trimester abortions be performed in hospitals "had strong support" in 1973 "as a reasonable health regulation," ante at 435, this regulation can no longer stand because, according to the Court's diligent research into medical and scientific literature, the dilation and evacuation (D&E) procedure, used in 1973 only for first trimester abortions, "is now widely and successfully used for second trimester abortions." Ante at 436 (footnote omitted). Further, the medical literature relied on by the Court indicates that the D&E procedure may be performed in an appropriate nonhospital setting for "at least . . . the early weeks of the second trimester. . . ." Ante at 437. The Court then chooses the period of 16 weeks of gestation as that point at which D&E procedures may be performed safely in a nonhospital setting, and thereby invalidates the Akron hospitalization regulation.
It is not difficult to see that, despite the Court's purported adherence to the trimester approach adopted in Roe, the lines drawn in that decision have now been "blurred" because of what the Court accepts as technological advancement in the safety of abortion procedure. The State may no longer rely on a "bright line" that separates permissible from impermissible regulation, and it is no longer free to consider the second trimester as a unit and weigh the risks posed by all abortion procedures throughout that trimester. [n3] Rather, [p456] the State must continuously and conscientiously study contemporary medical and scientific literature in order to determine whether the effect of a particular regulation is to "depart from accepted medical practice" insofar as particular procedures and particular periods within the trimester are concerned. Assuming that legislative bodies are able to engage in this exacting task, [n4] it is difficult to believe that our Constitution requires that they do it as a prelude to protecting the health of their citizens. It is even more difficult to believe that this Court, without the resources available to those bodies entrusted with making legislative choices, believes itself competent to make these inquiries and to revise these standards every time the American College of Obstetricians and Gynecologists (ACOG) or similar group revises its views about what is and what is not appropriate medical procedure in this area. Indeed, the ACOG Standards on which the Court relies were changed in 1982, after trial in the present cases. Before ACOG changed its Standards in 1982, it recommended that all mid-trimester abortions be performed in a hospital. See 651 F.2d 1198, 1209 (CA6 1981). As today's decision indicates, medical technology is changing, and this change will necessitate our continued functioning as the Nation's
ex officio medical board, with powers to approve or disapprove medical and operative practices and standards throughout the United States.
Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 99 (1976) (WHITE, J., concurring in part and dissenting in part).
Just as improvements in medical technology inevitably will move forward the point at which the State may regulate for reasons of maternal health, different technological improvements will move backward the point of viability at which the [p457] State may proscribe abortions except when necessary to preserve the life and health of the mother.
In 1973, viability before 28 weeks was considered unusual. The 14th edition of L. Hellman & J. Pritchard, Williams Obstetrics (1971), on which the Court relied in Roe for its understanding of viability, stated, at 493, that "[a]ttainment of a [fetal] weight of 1,000 g [or a fetal age of approximately 28 weeks' gestation] is . . . widely used as the criterion of viability." However, recent studies have demonstrated increasingly earlier fetal viability. [n5] It is certainly reasonable to believe that fetal viability in the first trimester of pregnancy may be possible in the not too distant future. Indeed, the Court has explicitly acknowledged that Roe left the point of viability "flexible for anticipated advancements in medical skill." Colautti v. Franklin, 439 U.S. 379, 387 (1979).
[W]e recognized in Roe that viability was a matter of medical [p458] judgment, skill, and technical ability, and we preserved the flexibility of the term.
Danforth, supra, at 64.
The Roe framework, then, is clearly on a collision course with itself. As the medical risks of various abortion procedures decrease, the point at which the State may regulate for reasons of maternal health is moved further forward to actual childbirth. As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception. Moreover, it is clear that the trimester approach violates the fundamental aspiration of judicial decisionmaking through the application of neutral principles "sufficiently absolute to give them roots throughout the community and continuity over significant periods of time. . . ." A. Cox, The Role of the Supreme Court in American Government 114 (1976). The Roe framework is inherently tied to the state of medical technology that exists whenever particular litigation ensues. Although legislatures are better suited to make the necessary factual judgments in this area, the Court's framework forces legislatures, as a matter of constitutional law, to speculate about what constitutes "accepted medical practice" at any given time. Without the necessary expertise or ability, courts must then pretend to act as science review boards and examine those legislative judgments.
The Court adheres to the Roe framework because the doctrine of stare decisis "demands respect in a society governed by the rule of law." Ante at 420. Although respect for stare decisis cannot be challenged, "this Court's considered practice [is] not to apply stare decisis as rigidly in constitutional as in nonconstitutional cases." Glidden Co. v. Zdanok, 370 U.S. 530, 543 (1962). Although we must be mindful of the
desirability of continuity of decision in constitutional questions . . . when convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment, and not upon legislative action this Court throughout its history [p459] has freely exercised its power to reexamine the basis of its constitutional decisions.
Smith v. Allwright, 321 U.S. 649, 665 (1944) (footnote omitted).
Even assuming that there is a fundamental right to terminate pregnancy in some situations, there is no justification in law or logic for the trimester framework adopted in Roe and employed by the Court today on the basis of stare decisis. For the reasons stated above, that framework is clearly an unworkable means of balancing the fundamental right and the compelling state interests that are indisputably implicated.
The Court in Roe correctly realized that the State has important interests "in the areas of health and medical standards" and that
[t]he State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient.
410 U.S. at 149-150. The Court also recognized that the State has "another important and legitimate interest in protecting the potentiality of human life." Id. at 162 (emphasis in original). I agree completely that the State has these interests, but, in my view, the point at which these interests become compelling does not depend on the trimester of pregnancy. Rather, these interests are present throughout pregnancy.
This Court has never failed to recognize that "a State may properly assert important interests in safeguarding health [and] in maintaining medical standards." Id. at 154. It cannot be doubted that, as long as a state statute is within
the bounds of reason and [does not] assum[e] the character of a merely arbitrary fiat . . . , [then] [t]he State . . . must decide upon measures that are needful for the protection of its people. . . .
Purity Extract and Tonic Co. v. Lynch, 226 U.S. 192, 204-205 (1912). "There is nothing in the United States Constitution which limits the State's power to require that medical procedures be done safely. . . ." Sendak v. [p460] Arnold, 429 U.S. 968, 969 (1976) (WHITE, J., dissenting). "The mode and procedure of medical diagnostic procedures is not the business of judges." Parham v. J. R., 442 U.S. 584, 607-608 (1979). Under the Roe framework, however, the state interest in maternal health cannot become compelling until the onset of the second trimester of pregnancy, because "until the end of the first trimester, mortality in abortion may be less than mortality in normal childbirth." 410 U.S. at 163. Before the second trimester, the decision to perform an abortion "must be left to the medical judgment of the pregnant woman's attending physician." Id. at 164. [n6]
The fallacy inherent in the Roe framework is apparent: just because the State has a compelling interest in ensuring maternal safety once an abortion may be more dangerous than childbirth, it simply does not follow that the State has no interest before that point that justifies state regulation to ensure that first trimester abortions are performed as safely as possible. [n7]
The state interest in potential human life is likewise extant throughout pregnancy. In Roe, the Court held that, [p461] although the State had an important and legitimate interest in protecting potential life, that interest could not become compelling until the point at which the fetus was viable. The difficulty with this analysis is clear: potential life is no less potential in the first weeks of pregnancy than it is at viability or afterward. At any stage in pregnancy, there is the potential for human life. Although the Court refused to "resolve the difficult question of when life begins," id. at 159, the Court chose the point of viability -- when the fetus is capable of life independent of its mother -- to permit the complete proscription of abortion. The choice of viability as the point at which the state interest in potential life becomes compelling is no less arbitrary than choosing any point before viability or any point afterward. Accordingly, I believe that the State's interest in protecting potential human life exists throughout the pregnancy.
Although the State possesses compelling interests in the protection of potential human life and in maternal health throughout pregnancy, not every regulation that the State imposes must be measured against the State's compelling interests and examined with strict scrutiny. This Court has acknowledged that
the right in Roe v. Wade can be understood only by considering both the woman's interest and the nature of the State's interference with it. Roe did not declare an unqualified "constitutional right to an abortion." . . . Rather, the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy.
The requirement that state interference "infringe substantially" or "heavily burden" a right before heightened scrutiny is applied is not novel in our fundamental-rights jurisprudence, or restricted to the abortion context. In San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 37-38 (1973), we observed that we apply "strict judicial scrutiny" only when legislation may be said to have "‘deprived,' ‘infringed,' or ‘interfered' with the free exercise of some such fundamental personal right or liberty." If the impact of the regulation does not rise to the level appropriate for our strict scrutiny, then our inquiry is limited to whether the state law bears "some rational relationship to legitimate state purposes." Id. at 40. Even in the First Amendment context, we have required in some circumstances that state laws "infringe substantially" on protected conduct, Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 545 [p463] (1963), or that: there be "a significant encroachment upon personal liberty," Bates v. City of Little Rock, 361 U.S. 516, 524 (1960).
In Carey v. Population Services International, 431 U.S. 678 (1977), we eschewed the notion that state law had to meet the exacting "compelling state interest" test "‘whenever it implicates sexual freedom.'" Id. at 688, n. 5. Rather, we required that, before the "strict scrutiny" standard was employed, it was necessary that the state law "impos[e] a significant burden" on a protected right, id. at 689, or that it
burden an individual's right to decide to prevent conception or terminate pregnancy by substantially limiting access to the means of effectuating that decision. . . .
Id. at 688 (emphasis added). The Court stressed that "even a burdensome regulation may be validated by a sufficiently compelling state interest." Id. at 686. Finally, Griswold v. Connecticut, 381 U.S. 479, 485 (1965), recognized that a law banning the use of contraceptives by married persons had "a maximum destructive impact" on the marital relationship.
Indeed, the Court today follows this approach. Although the Court does not use the expression "undue burden," the Court recognizes that even a "significant obstacle" can be justified by a "reasonable" regulation. See ante at 434, 435, 438.
The "undue burden" required in the abortion cases represents the required threshold inquiry that must be conducted before this Court can require a State to justify its legislative actions under the exacting "compelling state interest" standard.
[A] test so severe that legislation rarely can meet it should be imposed by courts with deliberate restraint in view of the respect that properly should be accorded legislative judgments.
Carey, supra, at 705 (POWELL, J., concurring in part and concurring in judgment).
The "unduly burdensome" standard is particularly appropriate in the abortion context because of the nature and scope of the right that is involved. The privacy right involved in the abortion context "cannot be said to be absolute." Roe, [p464] 410 U.S. at 154. "Roe did not declare an unqualified ‘constitutional right to an abortion.'" Maher, 432 U.S. at 473. Rather, the Roe right is intended to protect against state action "drastically limiting the availability and safety of the desired service," id. at 472, against the imposition of an "absolute obstacle" on the abortion decision, Danforth, 428 U.S. at 70-71, n. 11, or against "official interference" and "coercive restraint" imposed on the abortion decision, Harris, 448 U.S. at 328 (WHITE,J., concurring). That a state regulation may "inhibit" abortions to some degree does not require that we find that the regulation is invalid. See H. L. v. Matheson, 450 U.S. 398, 413 (1981).
The abortion cases demonstrate that an "undue burden" has been found for the most part in situations involving absolute obstacles or severe limitations on the abortion decision In Roe, the Court invalidated a Texas statute that criminalized all abortions except those necessary to save the life of the mother. In Danforth, the Court invalidated a state prohibition of abortion by saline anmiocentesis because the ban had "the effect of inhibiting . . . the vast majority of abortions after the first 12 weeks." 428 U.S. at 79. The Court today acknowledges that the regulation in Danforth effectively represented "a complete prohibition on abortions in certain circumstances." Ante at 429, n. 11 (emphasis added). In Danforth, the Court also invalidated state regulations requiring parental or spousal consent as a prerequisite to a first trimester abortion because the consent requirements effectively and impermissibly delegated a "veto power" to parents and spouses during the first trimester of pregnancy. In both Bellotti I, 428 U.S. 132 (1977), and Bellotti v. Baird, 443 U.S. 622 (1979) (Bellotti II), the Court was concerned with effective parental veto over the abortion decision. [n9] [p465]
In determining whether the State imposes an "undue burden," we must keep in mind that, when we are concerned with extremely sensitive issues, such as the one involved here,
the appropriate forum for their resolution in a democracy is the legislature. We should not forget that "legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts." Missouri, K. & T. R. Co. v. May, 194 U.S. 267, 270 (1904) (Holmes, J.).
Maher, 432 U.S. at 479-480 (footnote omitted). This does not mean that, in determining whether a regulation imposes an "undue burden" on the Roe right, we defer to the judgments made by state legislatures.
The point is, rather, that, when we face a complex problem with many hard questions and few easy answers, we do well to pay careful attention to how the other branches of Government have addressed the same problem.
We must always be mindful that
[t]he Constitution does not compel a state to fine-tune its statutes so as to encourage or facilitate abortions. To the contrary, state action "encouraging childbirth except in the most urgent circumstances" is "rationally related to the legitimate governmental objective of protecting potential life." Harris v. McRae, 448 U.S. at 325. Accord, Maher v. Roe, supra, at 473-474.
H. L. v. Matheson, supra, at 413 (footnote omitted).
Section 1870.03 of the Akron ordinance requires that second trimester abortions be performed in hospitals. The Court holds that this requirement imposes a "significant obstacle" in the form of increased costs and decreased availability of abortions, ante at 434-435, 435, and the Court rejects the argument offered by the State that the requirement is a reasonable health regulation under Roe, 410 U.S. at 163. See ante at 435-436.
For the reasons stated above, I find no justification for the trimester approach used by the Court to analyze this restriction. I would apply the "unduly burdensome" test, and find that the hospitalization requirement does not impose an undue burden on that decision.
The Court's reliance on increased abortion costs and decreased availability is misplaced. As the city of Akron points out, there is no evidence in this case to show that the two Akron hospitals that performed second trimester abortions denied an abortion to any woman, or that they would not permit abortion by the D&E procedure. See Reply Brief for Petitioner in No. 81-746, p. 3. In addition, there was no evidence presented that other hospitals in nearby areas did not provide second trimester abortions. Further, almost any state regulation, including the licensing requirements [p467] that the Court would allow, see ante at 437-438, n. 26, inevitably and necessarily entails increased costs for any abortion. In Simopoulos v. Virginia, post, p. 506, the Court upholds the State's stringent licensing requirements that will clearly involve greater cost because the State's licensing scheme "is not an unreasonable means of furthering the State's compelling interest in" preserving maternal health. Post at 519. Although the Court acknowledges this indisputably correct notion in Simopoulos, it inexplicably refuses to apply it in this case. A health regulation, such as the hospitalization requirement, simply does not rise to the level of "official interference" with the abortion decision. See Harris, supra, at 328 (WHITE, J., concurring).
Health-related factors that may legitimately be considered by the State go well beyond what various medical organizations have to say about the physical safety of a particular procedure. Indeed, "all factors -- physical, emotional, psychological, familial, and the woman's age -- [are] relevant to the wellbeing of the patient." Doe v. Bolton, 410 U.S. 179, 192 (1973). The ACOG Standards, upon which the Court relies, state that
[r]egardless of advances in abortion technology, midtrimester terminations will likely remain more hazardous, expensive, and emotionally disturbing for a woman than early abortions.
American College of Obstetricians and Gynecologists, Technical Bulletin No. 56: Methods of Midtrimester Abortion 4 (Dec.1979).
The hospitalization requirement does not impose an undue burden, and it is not necessary to apply an exacting standard of review. Further, the regulation has a "rational relation" to a valid state objective of ensuring the health and welfare of its citizens. See Williamson v. Lee Optical Co., 348 U.S. 483, 491 (1955). [n11] [p468]
Section 1870.05(B)(2) of the Akron ordinance provides that no physician shall perform an abortion on a minor under 15 years of age unless the minor gives written consent, and the physician first obtains the informed written consent of a parent or guardian, or unless the minor first obtains "an order from a court having jurisdiction over her that the abortion be performed or induced." Despite the fact that this regulation has yet to be construed in the state courts, the Court holds that the regulation is unconstitutional because it is not "reasonably susceptible of being construed to create an ‘opportunity for case-by-case evaluations of the maturity of pregnant minors.'" Ante at 441 (quoting Bellotti II, 443 U.S. at 643-644, n. 23 (plurality opinion)). I believe that the Court should have abstained from declaring the ordinance unconstitutional.
In Bellotti I, the Court abstained from deciding whether a state parental consent provision was unconstitutional as [p469] applied to mature minors. The Court recognized and respected the well-settled rule that abstention is proper
where an unconstrued state statute is susceptible of a construction by the state judiciary "which might avoid in whole or in part the necessity for federal constitutional adjudication, or at least materially change the nature of the problem."
428 U.S. at 147 (quoting Harrison v. NAACP, 360 U.S. 167, 177 (1959)). While acknowledging the force of the abstention doctrine, see ante at 440-441, the Court nevertheless declines to apply it. Instead, it speculates that a state juvenile court might inquire into a minor's maturity and ability to decide to have an abortion in deciding whether the minor is being provided "‘surgical care . . . necessary for his health, morals, or wellbeing,'" ante at 441, n. 31 (quoting Ohio Rev.Code Ann. 2151.03 (1976)). The Court ultimately rejects this possible interpretation of state law, however, because filing a petition in juvenile court requires parental notification, an unconstitutional condition insofar as mature minors are concerned.
Assuming, arguendo, that the Court is correct in holding that a parental notification requirement would be unconstitutional as applied to mature minors, [n12] I see no reason to assume that the Akron ordinance and the State Juvenile Court statute compel state judges to notify the parents of a mature minor if such notification was contrary to the minor's best interests. Further, there is no reason to believe that the state [p470] courts would construe the consent requirement to impose any type of parental or judicial veto on the abortion decisions of mature minors. In light of the Court's complete lack of knowledge about how the Akron ordinance will operate, and how the Akron ordinance and the State Juvenile Court statute interact, our "‘scrupulous regard for the rightful independence of state governments'" counsels against
unnecessary interference by the federal courts with proper and validly administered state concerns, a course so essential to the balanced working of our federal system.
Harrison v. NAACP, supra, at 176 (quoting Matthews v. Rodgers, 284 U.S. 521, 525 (1932)).
The Court invalidates the informed consent provisions of § 1879.06(B) and § 1879.06(C) of the Akron ordinance. [n13] Although it finds that subsections (1), (2), (6), and (7) of § 1879.06(B) are "certainly . . . not objectionable," ante at 445-446, n. 37, it refuses to sever those provisions from subsections (3), (4), and (5) because the city requires that the "acceptable" information be provided by the attending physician when "much, if not all, of it could be given by a qualified person assisting the physician," ibid. Despite the fact that the Court finds that § 1879.06(C) "properly leaves the precise nature and amount of . . . disclosure to the physician's discretion [p471] and ‘medical judgment,'" ante at 447, the Court also finds § 1879.06(C) unconstitutional because it requires that the disclosure be made by the attending physician, rather than by other "qualified persons" who work at abortion clinics.
We have approved informed consent provisions in the past even though the physician was required to deliver certain information to the patient. In Danforth, the Court upheld a state informed consent requirement because
[t]he decision to abort, indeed, is an important, and often a stressful one, and it is desirable and imperative that it be made with full knowledge of its nature and consequences.
428 U.S. at 67. [n14] In H. L. v. Matheson, the Court noted that the state statute in the case required that the patient
be advised at a minimum about available adoption services, about fetal development, and about foreseeable complications and risks of an abortion. See Utah Code Ann. 76-7-305 (1978). In Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 65-67 (1976), we rejected a constitutional attack on written consent provisions.
450 U.S. at 400-401, n. 1. Indeed, we have held that an informed consent provision does not "unduly burde[n] the right to seek an abortion." Bellotti I, 428 U.S. at 147. [n15]
The validity of subsections (3), (4), and (5) is not before the Court, because it appears that the city of Akron conceded their unconstitutionality before the court below. See Brief [p472] for City of Akron in No. 79-3757 (CA6), p. 35; Reply Brief for City of Akron in No. 79-3757 (CA6), pp. 5-9. In my view, the remaining subsections of § 1879.06(B) are separable from the subsections conceded to be unconstitutional. Section 1870.19 contains a separability clause which creates a "‘presumption of divisibility,'" and places "the burden . . . on the litigant who would escape its operation." Carter v. Carter Coal Co., 298 U.S. 238, 335 (1936) (opinion of Cardozo, J.). Akron Center has failed to show that severance of subsections (3), (4), and (5) would "create a program quite different from the one the legislature actually adopted." Sloan v. Lemon, 413 U.S. 825, 834 (1973).
The remainder of § 1879.06(B), and § 1879.06(C), impose no undue burden or drastic limitation on the abortion decision. The city of Akron is merely attempting to ensure that the decision to abort is made in light of that knowledge that the city deems relevant to informed choice. As such, these regulations do not impermissibly affect any privacy right under the Fourteenth Amendment. [n16]
Section 1870.07 of the Akron ordinance requires a 24-hour waiting period between the signing of a consent form and the actual performance of the abortion, except in cases of emergency. See § 1879.12. The court below invalidated this requirement because it affected abortion decisions during the first trimester of pregnancy. The Court affirms the decision below, not on the ground that it affects early abortions, but because "Akron has failed to demonstrate that any legitimate state interest is furthered by an arbitrary and inflexible waiting [p473] period." Ante at 450. The Court accepts the arguments made by Akron Center that the waiting period increases the costs of obtaining an abortion by requiring the pregnant woman to make two trips to the clinic, and increases the risks of abortion through delay and scheduling difficulties. The decision whether to proceed should be left to the physician's "‘discretion in the exercise of his medical judgment.'" Ibid. (quoting Colautti, 439 U.S. at 387).
It is certainly difficult to understand how the Court believes that the physician-patient relationship is able to accommodate any interest that the State has in maternal physical and mental wellbeing in light of the fact that the record in this case shows that the relationship is nonexistent. See 651 F.2d at 1217 (Kennedy, J., concurring in part and dissenting in part). It is also interesting to note that the American College of Obstetricians and Gynecologists recommends that,
[p]rior to abortion, the woman should have access to special counseling that explores options for the management of an unwanted pregnancy, examines the risks, and allows sufficient time for reflection prior to making an informed decision.
1982 ACOG Standards for Obstetric-Gynecologic Services at 54.
The waiting period does not apply in cases of medical emergency. Therefore, should the physician determine that the waiting period would increase risks significantly, he or she need not require the woman to wait. The Court's concern in this respect is simply misplaced. Although the waiting period may impose an additional cost on the abortion decision, this increased cost does not unduly burden the availability of abortions or impose an absolute obstacle to access to abortions. Further, the State is not required to "fine-tune" its abortion statutes so as to minimize the costs of abortions. H. L. v. Matheson, 450 U.S. at 413.
Assuming, arguendo, that any additional costs are such as to impose an undue burden on the abortion decision, the State's compelling interests in maternal physical and mental [p474] health and protection of fetal life clearly justify the waiting period. As we acknowledged in Danforth, 428 U.S. at 67, the decision to abort is "a stressful one," and the waiting period reasonably relates to the State's interest in ensuring that a woman does not make this serious decision in undue haste. The decision also has grave consequences for the fetus, whose life the State has a compelling interest to protect and preserve. "[N]o other [medical] procedure involves the purposeful termination of a potential life." Harris, 448 U.S. at 325. The waiting period 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. [n17]
Finally, § 1870.16 of the Akron ordinance requires that
[a]ny physician who shall perform or induce an abortion upon a pregnant woman shall insure that the remains of the unborn child are disposed of in a humane and sanitary manner.
The Court finds this provision void for vagueness. I disagree.
In Planned Parenthood Assn. v. Fitzpatrick, 401 F.Supp. 554 (ED Pa.1975) (three-judge court), summarily aff'd sub nom. Franklin v. Fitzpatrick, 428 U.S. 901 (1976), the District Court upheld a "humane disposal" provision against a vagueness attack in light of the State's representation that the intent of the Act "‘is to preclude the mindless dumping of [p475] aborted fetuses onto garbage piles.'" 401 F.Supp. at 573. The District Court held that different concerns would be implicated if the statute were, at some point, determined to require "expensive burial." Ibid. In the present cases, the city of Akron has informed this Court that the intent of the "humane" portion of its statute, as distinguished from the "sanitary" portion, is merely to ensure that fetuses will not be "‘dump[ed] . . . on garbage piles.'" Brief for Petitioner in No. 81-746, p. 48. In light of the fact that the city of Akron indicates no intent to require that physicians provide "decent burials" for fetuses, and that "humane" is no more vague than the term "sanitary," the vagueness of which Akron Center does not question, I cannot conclude that the statute is void for vagueness.
For the reasons set forth above, I dissent from the judgment of the Court in these cases.
1. Roe recognized that the State possesses important and legitimate interests in protecting maternal health and the potentiality of human life. These "separate and distinct" interests were held to grow "in substantiality as the woman approaches term and, at a point during pregnancy, each becomes ‘compelling.'" 410 U.S. at 162-163. The state interest in maternal health was said to become compelling "at approximately the end of the first trimester." Id. at 163. Before that time, "the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician." Id. at 164. After the end of the first trimester, "a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health." Id. at 163. The Court noted that, "in the light of present medical knowledge . . . , mortality in abortion may be less than mortality in normal childbirth" during the first trimester of pregnancy. Ibid.
The state interest in potential human life was held to become compelling at "viability," defined by the Court as that point "at which the fetus . . . [is] potentially able to live outside the mother's womb, albeit with artificial aid." Roe, 410 U.S. at 160 (footnote omitted). Based on the Court's review of the contemporary medical literature, it placed viability at about 28 weeks, but acknowledged that this point may occur as early as 24 weeks. After viability is reached, the State may, according to Roe, proscribe abortion altogether, except when it is necessary to preserve the life and health of the mother. See id. at 163-164. Since Roe, the Court has held that Roe "left the point [of viability] flexible for anticipated advancements in medical skill." Colautti v. Franklin, 439 U.S. 379, 387 (1979).
The Court has also identified a state interest in protection of the young and "familial integrity" in the abortion context. See, e.g., H. L. v. Matheson, 450 U.S. 398, 411 (1981).
2. Although the Court purports to retain the trimester approach as "a reasonable legal framework for limiting" state regulatory authority over abortions, ante at 429, n. 11, the Court expressly abandons the Roe view that the relative rates of childbirth and abortion mortality are relevant for determining whether second trimester regulations are reasonably related to maternal health. Instead, the Court decides that a health regulation must not "depart from accepted medical practice" if it is to be upheld. Ante at 431. The State must now "make a reasonable effort to limit the effect of its regulations to the period in the trimester during which its health interest will be furthered." Ante at 434 (emphasis added).
3. The Court holds that the summary affirmance in Gary-Northwest Indiana Women's Services, Inc. v. Bowen, 496 F.Supp. 894 (ND Ind.1980) (three-judge court), aff'd sub nom. Gary-Northwest Indiana Women's Services, Inc. v. Orr, 451 U.S. 934 (1981), is not, as the court below thought, binding precedent on the hospitalization issue. See ante at 433, n. 18. Although the Court reads Gary-Northwest to be decided on the alternative ground that the plaintiffs failed to prove the safety of second trimester abortions, ante at 433, n. 18, the Court simply ignores the fact that the District Court in Gary-Northwest held that "even if the plaintiffs could prove birth more dangerous than early second trimester D&E abortions," that would not matter insofar as the constitutionality of the regulations were concerned. See 496 F.Supp. at 903 (emphasis added).
4. Irrespective of the difficulty of the task, legislatures, with their superior factfinding capabilities, are certainly better able to make the necessary judgments than are courts.
5. One study shows that infants born alive with a gestational age of less than 25 weeks and weight between 500 and 1,249 grams have a 20% chance of survival. See Phillips, Little, Polivy, & Lucey, Neonatal Mortality Risk for the Eighties: The Importance of Birth Weight/Gestational Age Groups, 68 Pediatrics 122 (1981). Another recent comparative study shows that preterm infants with a weight of 1,000 grams or less born in one hospital had a 42% rate of survival. Kopelman, The Smallest Preterm Infants: Reasons for Optimism and New Dilemmas, 132 Am.J.Diseases of Children 461 (1978). An infant weighing 484 grams and having a gestational age of 22 weeks at birth is now thriving in a Los Angeles hospital, and the attending physician has stated that the infant has a "95% chance of survival." Washington Post, Mar. 31, 1983, p. A2, col. 2. The aborted fetus in Simopoulos v. Virginia, post, p. 506, weighed 495 grams and had a gestational age of approximately 22 weeks.
Recent developments promise even greater success in overcoming the various respiratory and immunological neonatal complications that stand in the way of increased fetal viability. See, e.g., Beddis, Collins, Levy, Godfrey, & Silverman, New Technique for Servo-Control of Arterial Oxygen Tension in Preterm Infants, 54 Archives of Disease in Childhood 278 (1979).
There is absolutely no question that in the current era there has been a sustained and progressive improvement in the outlook for survival of small premature infants.
Stern, Intensive Care of the Pre-Term Infant, 26 Danish Med.Bull. 144 (1979).
6. Interestingly, the Court in Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976), upheld a recordkeeping requirement as well as the consent provision even though these requirements were imposed on first trimester abortions and although the State did not impose comparable requirements on most other medical procedures. See id. at 65-67, 79-81. Danforth, then, must be understood as a retreat from the position ostensibly adopted in Roe that the State had no compelling interest in regulation during the first trimester of pregnancy that would justify restrictions imposed on the abortion decision.
7. For example, the 1982 ACOG Standards, on which the Court relies so heavily in its analysis, provide that physicians performing first trimester abortions in their offices should provide for prompt emergency treatment or hospitalization in the event of any complications. See ACOG Standards, at 54. ACOG also prescribes that certain equipment be available for office abortions. See id. at 57. I have no doubt that the State has a compelling interest to ensure that these or other requirements are met, and that this legitimate concern would justify state regulation for health reasons even in the first trimester of pregnancy.
8. See Bellotti v. Baird, 428 U.S. 132, 147 (1976) (Bellotti I) (State may not "impose undue burdens upon a minor capable of giving an informed consent." In Bellotti I, the Court left open the question whether a judicial hearing would unduly burden the Roe right of an adult woman. See 428 U.S. at 147); Bellotti v. Baird, 443 U.S. 622, 640 (1979) (Bellotti II) (opinion of POWELL, J.) (State may not "unduly burden the right to seek an abortion"); Harris v. McRae, 448 U.S. 297, 314 (1980) ("The doctrine of Roe v. Wade, the Court held in Maher, ‘protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy,' [432 U.S.] at 473-474, such as the severe criminal sanctions at issue in Roe v. Wade, supra, or the absolute requirement of spousal consent for an abortion challenged in Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52"); Beal v. Doe, 432 U.S. 438, 446 (1977) (The state interest in protecting potential human life "does not, at least until approximately the third trimester, become sufficiently compelling to justify unduly burdensome state interference . . . "); Carey v. Population Services International, 431 U.S. 678, 705 (1977) (POWELL, J., concurring in part and concurring in judgment) ("In my view, [Roe and Griswold v. Connecticut, 381 U.S. 479 (1965),] make clear that the [compelling state interest] standard has been invoked only when the state regulation entirely frustrates or heavily burdens the exercise of constitutional rights in this area. See Bellotti v. Baird, 428 U.S. 132, 147 (1976)"). Even though the Court did not explicitly use the "unduly burdensome" standard in evaluating the informed consent requirement in Planned Parenthood of Central Missouri v. Danforth, supra, the informed consent requirement for first trimester abortions in Danforth was upheld because it did not "unduly burde[n] the right to seek an abortion." Bellotti I, supra, at 147.
9. The only case in which the Court invalidated regulations that were not "undue burdens" was Doe v. Bolton, 410 U.S. 179 (1973), which was decided on the same day as Roe. In Doe, the Court invalidated a hospitalization requirement because it covered first trimester abortion. The Court also invalidated a hospital accreditation requirement, a hospital committee approval requirement, and a two-doctor concurrence requirement. The Court clearly based its disapproval of these requirements on the fact that the State did not impose them on any other medical procedure apart from abortion. But the Court subsequent to Doe has expressly rejected the view that differential treatment of abortion requires invalidation of regulations. See Danforth, 428 U.S. at 67, 80-81; Maher v. Roe, 432 U.S. 464, 480 (1977); Harris, 448 U.S. at 325. See also Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, post, p. 476.
10. In his amicus curiae brief in support of the city of Akron, the Solicitor General of the United States argues that we should adopt the "unduly burdensome" standard, and, in doing so, we should "accord heavy deference to the legislative judgment" in determining what constitutes an "undue burden." See Brief for the United States as Amicus Curiae 10. The "unduly burdensome" standard is appropriate not because it incorporates deference to legislative judgment at the threshold stage of analysis, but rather because of the limited nature of the fundamental right that has been recognized in the abortion cases. Although our cases do require that we "pay careful attention" to the legislative judgment before we invoke strict scrutiny, see e.g, Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. at 103, it is not appropriate to weigh the state interests at the threshold stage.
11. The Court has never required that state regulation that burdens the abortion decision be "narrowly drawn" to express only the relevant state interest. In Roe, the Court mentioned "narrowly drawn" legislative enactments, 410 U.S. at 155, but the Court never actually adopted this standard in the Roe analysis. In its decision today, the Court fully endorses the Roe requirement that a burdensome health regulation, or as the Court appears to call it, a "significant obstacle," ante at 434, be "reasonably related" to the state compelling interest. See ante at 430-431, 435, 438. The Court recognizes that "[a] State necessarily must have latitude in adopting regulations of general applicability in this sensitive area." Ante at 434. See also Simopoulos v. Virginia, post at 516. Nevertheless, the Court fails to apply the "reasonably related" standard. The hospitalization requirement "reasonably relates" to its compelling interest in protection and preservation of maternal health under any normal understanding of what "reasonably relates" signifies.
The Court concludes that the regulation must fall because "it appears that during a substantial portion of the second trimester the State's regulation ‘depart[s] from accepted medical practice.'" Ante at 434. It is difficult to see how the Court concludes that the regulation "depart[s] from accepted medical practice" during "a substantial portion of the second trimester," ibid., in light of the fact that the Court concludes that D&E abortions may be performed safely in an outpatient clinic through 16 weeks, or 4 weeks into the second trimester. Ante at 436-437. Four weeks is hardly a "substantial portion" of the second trimester.
12. In my view, no decision of this Court has yet held that parental notification in the case of mature minors is unconstitutional. Although the plurality opinion of JUSTICE POWELL in Bellotti II suggested that the state statute in that case was unconstitutional because, inter alia, it failed to provide all minors with an opportunity "to go directly to a court without first consulting or notifying her parents," 443 U.S. at 647, the Court in H. L. v. Matheson held that unemancipated and immature minors had "no constitutional right to notify a court in lieu of notifying their parents." 450 U.S. at 412, n. 22. Furthermore, the Court in H. L. v. Matheson expressly did not decide that a parental notification requirement would be unconstitutional if the State otherwise permitted mature minors to make abortion decisions free of parental or judicial "veto." See id. at 406-407.
13. Section 1870.06(B) requires that the attending physician orally inform the pregnant woman: (1) that she is pregnant; (2) of the probable number of weeks since conception; (3) that the unborn child is a human being from the moment of conception, and has certain anatomical and physiological characteristics; (4) that the unborn child may be viable and, if so, the physician has a legal responsibility to try to save the child; (5) that abortion is a major surgical procedure that can result in serious physical and psychological complications; (6) that various agencies exist that will provide the pregnant woman with information about birth control; and (7) that various agencies exist that will assist the woman through pregnancy should she decide not to undergo the abortion. Section 1870.06(C) requires the attending physician to inform the woman of risks associated with her particular pregnancy and proposed abortion technique, as well as to furnish information that the physician deems relevant "in his own medical judgment."
14. The Court in Danforth did not even view the informed consent requirement as having a "legally significant impact" on first trimester abortions that would trigger the Roe and Doe proscriptions against state interference in the decision to seek a first trimester abortion. See 428 U.S. at 81 (recordkeeping requirements).
15. Assuming, arguendo, that the Court now decides that Danforth, Bellotti II, and H. L. v. Matheson were incorrect, and that the informed consent provisions do burden the right to seek an abortion, the Court inexplicably refuses to determine whether this "burden" "reasonably relates" to legitimate state interests. Ante at 430 (quoting Roe, 410 U.S. at 163). Rather, the Court now decides that an informed consent provision must be justified by a "vital state need" before it can be upheld. See ante at 448.
16. This is not to say that the informed consent provisions may not violate the First Amendment rights of the physician if the State requires him or her to communicate its ideology. See Wooley v. Maynard, 430 U.S. 705 (1977). However, it does not appear that Akron Center raised any First Amendment argument in the court below. See Brief for Akron Center for Reproductive Health, Inc., in No. 79-3701 (CA6), pp. 18-23; Reply Brief for Akron Center for Reproductive Health, Inc., in No. 79-3701 (CA6), pp. 26-33.
17. On the basis of this analysis of the waiting period requirement, the Court charges that "the dissent would uphold virtually any abortion-inhibiting regulation. . . ." Ante at 421, n. 1. The waiting period requirement is valid because it imposes a small cost when all relevant factors are taken into consideration. This is precisely the reasoning that JUSTICE POWELL employs in upholding the pathology report requirement in Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, post, p. 476 (report requirement imposes a "comparatively small additional cost," post at 489).