|Planned Parenthood of Southeastern Pennsylvania v. Casey
(Nos. 91-744, 91-902)
[ O'Connor, et.al. ]
[ Stevens ]
[ Blackmun ]
[ Rehnquist ]
[ Scalia ]
Planned Parenthood of Southeastern Pennsylvania v. Casey
JUSTICE BLACKMUN, concurring in part, concurring in the judgment in part, and dissenting in part.
I join parts I, II, III, V-A, V-C, and VI of the joint opinion of JUSTICES O'CONNOR, KENNEDY, and SOUTER, ante.
Three years ago, in Webster v. Reproductive Health Serv., 492 U.S. 490 (1989), four Members of this Court appeared poised to "cas[t] into darkness the hopes and visions of every woman in this country" who had come to believe that the Constitution guaranteed her the right to reproductive choice. Id. at 557 (BLACKMUN, J., dissenting). See id. at 499 (opinion of REHNQUIST, C.J.); id. at 532 (opinion of SCALIA, J.). All that remained between the promise of Roe and the darkness of the plurality was a single, flickering flame. Decisions since Webster gave little reason to hope that this flame would cast much light. See, e.g., Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 524 (1990) (opinion of BLACKMUN, J.). But now, just when so many expected the darkness to fall, the flame has grown bright. [p923]
I do not underestimate the significance of today's joint opinion. Yet I remain steadfast in my belief that the right to reproductive choice is entitled to the full protection afforded by this Court before Webster. And I fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light.
Make no mistake, the joint opinion of JUSTICES O'CONNOR, KENNEDY, and SOUTER is an act of personal courage and constitutional principle. In contrast to previous decisions in which JUSTICES O'CONNOR and KENNEDY postponed reconsideration of Roe v. Wade, 410 U.S. 113 (1973), the authors of the joint opinion today join JUSTICE STEVENS and me in concluding that "the essential holding of Roe should be retained and once again reaffirmed." Ante at 846. In brief, five Members of this Court today recognize that "the Constitution protects a woman's right to terminate her pregnancy in its early stages." Id. at 844.
A fervent view of individual liberty and the force of stare decisis have led the Court to this conclusion. Ante at 853. Today a majority reaffirms that the Due Process Clause of the Fourteenth Amendment establishes "a realm of personal liberty which the government may not enter," ante at 847 -- a realm whose outer limits cannot be determined by interpretations of the Constitution that focus only on the specific practices of States at the time the Fourteenth Amendment was adopted. See ante at 848-849. Included within this realm of liberty is
"the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."
Ante at 851, quoting Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (emphasis in original).
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the [p924] liberty protected by the Fourteenth Amendment.
Ante at 851 (emphasis added). Finally, the Court today recognizes that, in the case of abortion,
the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear.
Ante at 852.
The Court's reaffirmation of Roe's central holding is also based on the force of stare decisis.
[N]o erosion of principle going to liberty or personal autonomy has left Roe's central holding a doctrinal remnant; Roe portends no developments at odds with other precedent for the analysis of personal liberty; and no changes of fact have rendered viability more or less appropriate as the point at which the balance of interests tips.
Ante at 860-861. Indeed, the Court acknowledges that Roe's limitation on state power could not be removed
without serious inequity to those who have relied upon it or significant damage to the stability of the society governed by the rule in question.
Ante at 855. In the 19 years since Roe was decided, that case has shaped more than reproductive planning --
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.
Ante at 860. The Court understands that, having "call[ed] the contending sides . . . to end their national division by accepting a common mandate rooted in the Constitution," ante at 867, a decision to overrule Roe
would seriously weaken the Court's capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law.
Ante at 865. What has happened today should serve as a model for future Justices and a warning to all who have tried to turn this Court into yet another political branch.
In striking down the Pennsylvania statute's spousal notification requirement, the Court has established a framework [p925] for evaluating abortion regulations that responds to the social context of women facing issues of reproductive choice. [n1] In determining the burden imposed by the challenged regulation, the Court inquires whether the regulation's "purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Ante at 878 (emphasis added). The Court reaffirms:
The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.
Ante at 894. Looking at this group, the Court inquires, based on expert testimony, empirical studies, and common sense, whether,
in a large fraction of the cases in which [the restriction] is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion.
Id. at 895.
A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it.
Ante at 877. And in applying its test, the Court remains sensitive to the unique role of women in the decisionmaking process. Whatever may have been the practice when the Fourteenth Amendment was adopted, the Court observes,
[w]omen do not lose their constitutionally protected liberty when they marry. The Constitution protects all individuals, male or female, married or unmarried, from the abuse of governmental power, even where that power is employed for the supposed benefit of a member of the individual's family.
Lastly, while I believe that the joint opinion errs in failing to invalidate the other regulations, I am pleased that the joint opinion has not ruled out the possibility that these regulations may be shown to impose an unconstitutional burden. The joint opinion makes clear that its specific holdings are based on the insufficiency of the record before it. See, e.g., id. at 885-886. I am confident that, in the future, evidence will be produced to show that,
in a large fraction of the cases in which [these regulations are] relevant, [they] will operate as a substantial obstacle to a woman's choice to undergo an abortion.
Ante at 895.
Today, no less than yesterday, the Constitution and decisions of this Court require that a State's abortion restrictions be subjected to the strictest of judicial scrutiny. Our precedents and the joint opinion's principles require us to subject all non-de minimis abortion regulations to strict scrutiny. Under this standard, the Pennsylvania statute's provisions requiring content-based counseling, a 24-hour delay, informed parental consent, and reporting of abortion-related information must be invalidated.
The Court today reaffirms the long recognized rights of privacy and bodily integrity. As early as 1891, the Court held,
[n]o right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others. . . .
Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891). Throughout this century, this Court also has held that the fundamental right of privacy protects citizens against governmental [p927] intrusion in such intimate family matters as procreation, childrearing, marriage, and contraceptive choice. See ante at 847-849. These cases embody the principle that personal decisions that profoundly affect bodily integrity, identity, and destiny should be largely beyond the reach of government. Eisenstadt, 405 U.S. at 453. In Roe v. Wade, this Court correctly applied these principles to a woman's right to choose abortion.
State restrictions on abortion violate a woman's right of privacy in two ways. First, compelled continuation of a pregnancy infringes upon a woman's right to bodily integrity by imposing substantial physical intrusions and significant risks of physical harm. During pregnancy, women experience dramatic physical changes and a wide range of health consequences. Labor and delivery pose additional health risks and physical demands. In short, restrictive abortion laws force women to endure physical invasions far more substantial than those this Court has held to violate the constitutional principle of bodily integrity in other contexts. See, e.g., Winston v. Lee, 470 U.S. 753 (1985) (invalidating surgical removal of bullet from murder suspect); Rochin v. California, 342 U.S. 165 (1952) (invalidating stomach-pumping). [n3]
Further, when the State restricts a woman's right to terminate her pregnancy, it deprives a woman of the right to make her own decision about reproduction and family planning -- critical life choices that this Court long has deemed central to the right to privacy. The decision to terminate or continue a pregnancy has no less an impact on a woman's life than decisions about contraception or marriage. 410 U.S. [p928] at 410 U.S. 153"]153. Because motherhood has a dramatic impact on a woman's educational prospects, employment opportunities, and self-determination, restrictive abortion laws deprive her of basic control over her life. For these reasons, "the decision whether or not to beget or bear a child" lies at "the very heart of this cluster of constitutionally protected choices." 153. Because motherhood has a dramatic impact on a woman's educational prospects, employment opportunities, and self-determination, restrictive abortion laws deprive her of basic control over her life. For these reasons, "the decision whether or not to beget or bear a child" lies at "the very heart of this cluster of constitutionally protected choices." Carey v. Population Services, Int'l, 431 U.S. 678 (1977).
A State's restrictions on a woman's right to terminate her pregnancy also implicate constitutional guarantees of gender equality. State restrictions on abortion compel women to continue pregnancies they otherwise might terminate. By restricting the right to terminate pregnancies, the State conscripts women's bodies into its service, forcing women to continue their pregnancies, suffer the pains of childbirth, and in most instances, provide years of maternal care. The State does not compensate women for their services; instead, it assumes that they owe this duty as a matter of course. This assumption -- that women can simply be forced to accept the "natural" status and incidents of motherhood -- appears to rest upon a conception of women's role that has triggered the protection of the Equal Protection Clause. See, e.g., Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724-726 (1982); 458 U.S. 718, 724-726 (1982); Craig v. Boren, 429 U.S. 190, 198-199 (1976). [n4] The joint opinion recognizes that these assumptions about women's place in society "are no longer consistent with our [p929] understanding of the family, the individual, or the Constitution." Ante at 897.
The Court has held that limitations on the right of privacy are permissible only if they survive "strict" constitutional scrutiny -- that is, only if the governmental entity imposing the restriction can demonstrate that the limitation is both necessary and narrowly tailored to serve a compelling governmental interest. Griswold v. Connecticut, 381 U.S. 479, 485 (1965). We have applied this principle specifically in the context of abortion regulations. Roe v. Wade, 410 U.S. at 155. [n5]
Roe implemented these principles through a framework that was designed
to insure that the woman's right to choose not become so subordinate to the State's interest in promoting fetal life that her choice exists in theory, but not in fact,
ante at 872. Roe identified two relevant State interests: "an interest in preserving and protecting the health of the pregnant woman" and an interest in "protecting the potentiality of human life." 410 U.S. at 162. With respect to the State's interest in the health of the mother, "the ‘compelling' point . . . is at approximately the end of the first trimester," because it is at that point that the mortality rate in abortion approaches that in childbirth. Roe, 410 U.S. at 163. With respect to the State's interest in potential life, "the ‘compelling' point is at viability," because it is at that point that the [p930] fetus "presumably has the capability of meaningful life outside the mother's womb." Ibid. In order to fulfill the requirement of narrow tailoring,
the State is obligated to make a reasonable effort to limit the effect of its regulations to the period in the trimester during which its health interest will be furthered.
Akron, 462 U.S. at 434.
In my view, application of this analytical framework is no less warranted than when it was approved by seven Members of this Court in Roe. Strict scrutiny of state limitations on reproductive choice still offers the most secure protection of the woman's right to make her own reproductive decisions, free from state coercion. No majority of this Court has ever agreed upon an alternative approach. The factual premises of the trimester framework have not been undermined, see Webster, 492 U.S. at 553 (BLACKMUN, J., dissenting), and the Roe framework is far more administrable, and far less manipulable, than the "undue burden" standard adopted by the joint opinion.
Nonetheless, three criticisms of the trimester framework continue to be uttered. First, the trimester framework is attacked because its key elements do not appear in the text of the Constitution. My response to this attack remains the same as it was in Webster:
Were this a true concern, we would have to abandon most of our constitutional jurisprudence. [T]he "critical elements" of countless constitutional doctrines nowhere appear in the Constitution's text. . . . The Constitution makes no mention, for example, of the First Amendment's "actual malice" standard for proving certain libels, see New York Times Co. v. Sullivan, 376 U.S. 254 (1964). . . . Similarly, the Constitution makes no mention of the rational basis test, or the specific verbal formulations of intermediate and strict scrutiny by which this Court evaluates claims under the Equal Protection Clause. The reason is simple. Like the Roe framework, these [p931] tests or standards are not, and do not purport to be, rights protected by the Constitution. Rather, they are judge-made methods for evaluating and measuring the strength and scope of constitutional rights or for balancing the constitutional rights of individuals against the competing interests of government.
492 U.S. at 548.
The second criticism is that the framework more closely resembles a regulatory code than a body of constitutional doctrine. Again, my answer remains the same as in Webster.
[I]f this were a true and genuine concern, we would have to abandon vast areas of our constitutional jurisprudence. . . . Are [the distinctions entailed in the trimester framework] any finer, or more "regulatory," than the distinctions we have often drawn in our First Amendment jurisprudence, where, for example, we have held that a "release time" program permitting public school students to leave school grounds during school hours receive religious instruction does not violate the Establishment Clause, even though a release time program permitting religious instruction on school grounds does violate the Clause? Compare Zorach v. Clauson, 343 U.S. 306 (1952), with Illinois ex rel. McCollum v. Board of Education of School Dist. No. 71, Champaign County, 333 U.S. 203 (1948). . . . Similarly, in a Sixth Amendment case, the Court held that, although an overnight ban on attorney-client communication violated the constitutionally guaranteed right to counsel, Geders v. United States, 425 U.S. 80 (1976), that right was not violated when a trial judge separated a defendant from his lawyer during a 15-minute recess after the defendant's direct testimony. Perry v. Leake, 488 U.S. 272 (1989). That numerous constitutional doctrines result in narrow differentiations between similar circumstances does [p932] not mean that this Court has abandoned adjudication in favor of regulation.
Id. at 549-550.
The final, and more genuine, criticism of the trimester framework is that it fails to find the State's interest in potential human life compelling throughout pregnancy. No member of this Court -- nor for that matter, the Solicitor General, Tr. of Oral Arg. 42 -- has ever questioned our holding in Roe that an abortion is not "the termination of life entitled to Fourteenth Amendment protection." 410 U.S. at 159. Accordingly, a State's interest in protecting fetal life is not grounded in the Constitution. Nor, consistent with our Establishment Clause, can it be a theological or sectarian interest. See Thornburgh, 476 U.S. at 778 (STEVENS, J., concurring). It is, instead, a legitimate interest grounded in humanitarian or pragmatic concerns. See ante at 914-915 (opinion of STEVENS, J.).
But while a State has "legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child," ante at 846, legitimate interests are not enough. To overcome the burden of strict scrutiny, the interests must be compelling. The question then is how best to accommodate the State's interest in potential human life with the constitutional liberties of pregnant women. Again, I stand by the views I expressed in Webster:
I remain convinced, as six other Members of this Court 16 years ago were convinced, that the Roe framework, and the viability standard in particular, fairly, sensibly, and effectively functions to safeguard the constitutional liberties of pregnant women while recognizing and accommodating the State's interest in potential human life. The viability line reflects the biological facts and truths of fetal development; it marks that threshold moment prior to which a fetus cannot survive separate from the [p933] woman and cannot reasonably and objectively be regarded as a subject of rights or interests distinct from, or paramount to, those of the pregnant woman. At the same time, the viability standard takes account of the undeniable fact that, as the fetus evolves into its postnatal form, and as it loses its dependence on the uterine environment, the State's interest in the fetus' potential human life, and in fostering a regard for human life in general, becomes compelling. As a practical matter, because viability follows "quickening" -- the point at which a woman feels movement in her womb -- and because viability occurs no earlier than 23 weeks gestational age, it establishes an easily applicable standard for regulating abortion, while providing a pregnant woman ample time to exercise her fundamental right with her responsible physician to terminate her pregnancy.
492 U.S. at 553-554. [n6]
Roe's trimester framework does not ignore the State's interest in prenatal life. Like JUSTICE STEVENS, I agree that the State may take steps to ensure that a woman's choice "is thoughtful and informed," ante at 872, and that
States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning.
Ante at 873. But
[s]erious questions arise when a State attempts to "persuade the woman to choose childbirth over abortion." Ante at 878. Decisional autonomy must limit the State's power to inject into a woman's most personal deliberations its own views of what is best. The State may promote its preferences by funding childbirth, by creating and maintaining alternatives to abortion, and by espousing the virtues of family, but it must respect [p934] the individual's freedom to make such judgments.
Ante at 916 (opinion of STEVENS, J.). As the joint opinion recognizes,
the means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it.
Ante at 877.
In sum, Roe's requirement of strict scrutiny as implemented through a trimester framework should not be disturbed. No other approach has gained a majority, and no other is more protective of the woman's fundamental right. Lastly, no other approach properly accommodates the woman's constitutional right with the State's legitimate interests.
Application of the strict scrutiny standard results in the invalidation of all the challenged provisions. Indeed, as this Court has invalidated virtually identical provisions in prior cases, stare decisis requires that we again strike them down.
This Court has upheld informed and written consent requirements only where the State has demonstrated that they genuinely further important health-related state concerns. See Danforth, 428 U.S. at 428 U.S. 65"]65-67. A State may not, under the guise of securing informed consent, "require the delivery of information ‘designed to influence the woman's informed choice between abortion or childbirth.'" 65-67. A State may not, under the guise of securing informed consent, "require the delivery of information ‘designed to influence the woman's informed choice between abortion or childbirth.'" Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 760 (1986), (quoting Akron, 462 U.S. at 443-444). Rigid requirements that a specific body of information be imparted to a woman in all cases, regardless of the needs of the patient, improperly intrude upon the discretion of the pregnant woman's physician. and thereby impose an "‘undesired and uncomfortable straitjacket.'" Thornburgh, 476 U.S. at 762 (quoting Danforth, 428 U.S. at 67, n. 8).
Measured against these principles, some aspects of the Pennsylvania informed consent scheme are unconstitutional. [p935] While it is unobjectionable for the Commonwealth to require that the patient be informed of the nature of the procedure, the health risks of the abortion and of childbirth, and the probable gestational age of the unborn child, compare §§ 3205(a)(1)(i)-(iii) with Akron, 462 U.S. at 446, n. 37, I remain unconvinced that there is a vital state need for insisting that the information be provided by a physician, rather than a counselor. Id. at 448. The District Court found that the physician-only requirement necessarily would increase costs to the plaintiff clinics, costs that undoubtedly would be passed on to patients. And because trained women counselors are often more understanding than physicians, and generally have more time to spend with patients, see App. 366a-387a, the physician-only disclosure requirement is not narrowly tailored to serve the Commonwealth's interest in protecting maternal health.
Sections 3205(a)(2)(i) (iii) of the Act further requires that the physician or a qualified nonphysician inform the woman that printed materials are available from the Commonwealth that describe the fetus and provide information about medical assistance for childbirth, information about child support from the father, and a list of agencies offering that provide adoption and other services as alternatives to abortion. Thornburgh invalidated biased patient counseling requirements virtually identical to the one at issue here. What we said of those requirements fully applies in this case:
the listing of agencies in the printed Pennsylvania form presents serious problems; it contains names of agencies that well may be out of step with the needs of the particular woman, and thus places the physician in an awkward position and infringes upon his or her professional responsibilities. Forcing the physician or counselor to present the materials and the list to the woman makes him or her in effect an agent of the State in treating the woman and places his or her imprimatur upon both the materials and the list. All this is, or [p936] comes close to being, state medicine imposed upon the woman, not the professional medical guidance she seeks, and it officially structures -- as it obviously was intended to do -- the dialogue between the woman and her physician.
The requirements . . . that the woman be advised that medical assistance benefits may be available, and that the father is responsible for financial assistance in the support of the child similarly are poorly disguised elements of discouragement for the abortion decision. Much of this . . . , for many patients, would be irrelevant and inappropriate. For a patient with a life-threatening pregnancy, the "information," in its very rendition, may be cruel as well as destructive of the physician-patient relationship. As any experienced social worker or other counselor knows, theoretical financial responsibility often does not equate with fulfillment. . . . Under the guise of informed consent, the Act requires the dissemination of information that is not relevant to such consent, and, thus, it advances no legitimate state interest.
476 U.S. at 763.
"This type of compelled information is the antithesis of informed consent," id. at 764, and goes far beyond merely describing the general subject matter relevant to the woman's decision.
That the Commonwealth does not, and surely would not, compel similar disclosure of every possible peril of necessary surgery or of simple vaccination, reveals the antiabortion character of the statute and its real purpose.
The 24-hour waiting period following the provision of the foregoing information is also clearly unconstitutional. The District Court found that the mandatory 24-hour delay could lead to delays in excess of 24 hours, thus increasing health risks, and that it would require two visits to the abortion provider, thereby increasing travel time, exposure to further harassment, and financial cost. Finally, the District Court found that the requirement would pose especially significant burdens on women living in rural areas and those women that have difficulty explaining their whereabouts. App. to Pet. for Cert. in No. 91902, pp. 380a-382a (hereinafter App.). In Akron, this Court invalidated a similarly arbitrary or inflexible waiting period because, as here, it furthered no legitimate state interest. [n8]
As JUSTICE STEVENS insightfully concludes, the mandatory delay rests either on outmoded or unacceptable assumptions about the decisionmaking capacity of women or the belief that the decision to terminate the pregnancy is [p938] presumptively wrong. Ante at 918-919. The requirement that women consider this obvious and slanted information for an additional 24 hours contained in these provisions will only influence the woman's decision in improper ways. The vast majority of women will know this information -- of the few that do not, it is less likely that their minds will be changed by this information than it will be either by the realization that the State opposes their choice or the need once again to endure abuse and harassment on return to the clinic. [n9]
Except in the case of a medical emergency, § 3206 requires a physician to obtain the informed consent of a parent or guardian before performing an abortion on an unemancipated minor or an incompetent woman. Based on evidence in the record, the District Court concluded that, in order to fulfill the informed consent requirement, generally accepted medical principles would require an in-person visit by the parent to the facility. App. 399a. Although the Court "has recognized that the State has somewhat broader authority to regulate the activities of children than of adults," the State nevertheless must demonstrate that there is a "significant State interest in conditioning an abortion . . . that is not present in the case of an adult." Danforth, 428 U.S. at 74-75 (emphasis added). The requirement of an in-person visit would carry with it the risk of a delay of several days or possibly weeks, even where the parent is willing to consent. While the State has an interest in encouraging parental involvement in the minor's abortion decision, § 3206 is not narrowly drawn to serve that interest. [n10] [p939]
Finally, the Pennsylvania statute requires every facility performing abortions to report its activities to the Commonwealth. Pennsylvania contends that this requirement is valid under Danforth, in which this Court held that recordkeeping and reporting requirements that are reasonably directed to the preservation of maternal health, and that properly respect a patient's confidentiality, are permissible. 428 U.S. at 79-81. The Commonwealth attempts to justify its required reports on the ground that the public has a right to know how its tax dollars are spent. A regulation designed to inform the public about public expenditures does not further the Commonwealth's interest in protecting maternal health. Accordingly, such a regulation cannot justify a legally significant burden on a woman's right to obtain an abortion.
The confidential reports concerning the identities and medical judgment of physicians involved in abortions at first glance may seem valid, given the State's interest in maternal health and enforcement of the Act. The District Court found, however, that, notwithstanding the confidentiality protections, many physicians, particularly those who have previously discontinued performing abortions because of harassment, would refuse to refer patients to abortion clinics if their names were to appear on these reports. App. 447a-448a. The Commonwealth has failed to show that the name of the referring physician either adds to the pool of scientific knowledge concerning abortion or is reasonably related to the Commonwealth's interest in maternal health. I therefore agree with the District Court's conclusion that the confidential reporting requirements are unconstitutional [p940] insofar as they require the name of the referring physician and the basis for his or her medical judgment.
In sum, I would affirm the judgment in No. 91-902 and reverse the judgment in No. 91-744 and remand the cases for further proceedings.
At long last, THE CHIEF JUSTICE and those who have joined him admit it. Gone are the contentions that the issue need not be (or has not been) considered. There, on the first page, for all to see, is what was expected:
We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases.
Post at 944. If there is much reason to applaud the advances made by the joint opinion today, there is far more to fear from THE CHIEF JUSTICE's opinion.
THE CHIEF JUSTICE's criticism of Roe follows from his stunted conception of individual liberty. While recognizing that the Due Process Clause protects more than simple physical liberty, he then goes on to construe this Court's personal liberty cases as establishing only a laundry list of particular rights, rather than a principled account of how these particular rights are grounded in a more general right of privacy. Post at 951. This constricted view is reinforced by THE CHIEF JUSTICE's exclusive reliance on tradition as a source of fundamental rights. He argues that the record in favor of a right to abortion is no stronger than the record in Michael H. v. Gerald D., 491 U.S. 110 (1989), where the plurality found no fundamental right to visitation privileges by an adulterous father, or in Bowers v. Hardwick, 478 U.S. 186 (1986), where the Court found no fundamental right to engage in homosexual sodomy, or in a case involving the "firing of a gun . . . into another person's body." Post at 951-952. In THE CHIEF JUSTICE's world, a woman considering whether to terminate a pregnancy is entitled to no more protection than adulterers, murderers, and so-called "sexual [p941] deviates." [n11] 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 their decision. Post at 967-968. In short, THE CHIEF JUSTICE's view of the State's compelling interest in maternal health has less to do with health than it does with compelling women to be maternal.
Nor does THE CHIEF JUSTICE give any serious consideration to the doctrine of stare decisis. For THE CHIEF JUSTICE, the facts that gave rise to Roe are surprisingly simple:
women become pregnant, there is a point somewhere, depending on medical technology, where a fetus becomes viable, and women give birth to children.
Post at 955. This characterization of the issue thus allows THE CHIEF JUSTICE quickly to discard the joint opinion's reliance argument by asserting that "reproductive planning could take . . . virtually immediate account of a decision overruling Roe." Id. at 956 (internal quotations omitted).
THE CHIEF JUSTICE's narrow conception of individual liberty and stare decisis leads him to propose the same standard of review proposed by the plurality in Webster.
States may regulate abortion procedures in ways rationally related to a legitimate state interest. Williamson v. Lee Optical Co., 348 U.S. 483, 491 (1955); cf. Stanley v. Illinois, 405 U.S. 645, 651-653 (1972).
Post at 966. THE [p942] CHIEF JUSTICE then further weakens the test by providing an insurmountable requirement for facial challenges: petitioners must "‘show that no set of circumstances exists under which the [provision] would be valid.'" Post at 973, quoting Ohio v. Akron Center for Reproductive Health, 497 U.S. at 514. In short, in his view, petitioners must prove that the statute cannot constitutionally be applied to anyone. Finally, in applying his standard to the spousal-notification provision, THE CHIEF JUSTICE contends that the record lacks any "hard evidence" to support the joint opinion's contention that a "large fraction" of women who prefer not to notify their husbands involve situations of battered women and unreported spousal assault. Post at 974, n. 2. Yet throughout the explication of his standard, THE CHIEF JUSTICE never explains what hard evidence is, how large a fraction is required, or how a battered women is supposed to pursue an as-applied challenge.
Under his standard, States can ban abortion if that ban is rationally related to a legitimate state interest -- a standard which the United States calls "deferential, but not toothless." Yet when pressed at oral argument to describe the teeth, the best protection that the Solicitor General could offer to women was that a prohibition, enforced by criminal penalties, with no exception for the life of the mother, "could raise very serious questions." Tr. of Oral Arg. 49. Perhaps, the Solicitor General offered, the failure to include an exemption for the life of the mother would be "arbitrary and capricious." Ibid. If, as THE CHIEF JUSTICE contends, the undue burden test is made out of whole cloth, the so-called "arbitrary and capricious" limit is the Solicitor General's "new clothes."
Even if it is somehow "irrational" for a State to require a woman to risk her life for her child, what protection is offered for women who become pregnant through rape or incest? Is there anything arbitrary or capricious about a [p943] State's prohibiting the sins of the father from being visited upon his offspring? [n12]
But, we are reassured, there is always the protection of the democratic process. While there is much to be praised about our democracy, our country, since its founding, has recognized that there are certain fundamental liberties that are not to be left to the whims of an election. A woman's right to reproductive choice is one of those fundamental liberties. Accordingly, that liberty need not seek refuge at the ballot box.
In one sense, the Court's approach is worlds apart from that of THE CHIEF JUSTICE and JUSTICE SCALIA. And yet, in another sense, the distance between the two approaches is short -- the distance is but a single vote.
I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today. That, I regret, may be exactly where the choice between the two worlds will be made. [p944]
1. As I shall explain, the joint opinion and I disagree on the appropriate standard of review for abortion regulations. I do agree, however that the reasons advanced by the joint opinion suffice to invalidate the spousal notification requirement under a strict scrutiny standard.
2. I also join the Court's decision to uphold the medical emergency provision. As the Court notes, its interpretation is consistent with the essential holding of Roe that
forbids a State from interfering with a woman's choice to undergo an abortion procedure if continuing her pregnancy would constitute a threat to her health.
Ante at 880. As is apparent in my analysis below, however, this exception does not render constitutional the provisions which I conclude do not survive strict scrutiny.
3. As the joint opinion acknowledges, ante at 505 U.S. 857"]857, this Court has recognized the vital liberty interest of persons in refusing unwanted medical treatment. 857, this Court has recognized the vital liberty interest of persons in refusing unwanted medical treatment. Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990). Just as the Due Process Clause protects the deeply personal decision of the individual to refuse medical treatment, it also must protect the deeply personal decision to obtain medical treatment, including a woman's decision to terminate a pregnancy.
4. A growing number of commentators are recognizing this point. See, e.g., L. Tribe, American Constitutional Law, § 15-10, pp. 1353-1359 (2d ed.1988); Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan.L.Rev. 261, 350-380 (1992); Sunstein, Neutrality in Constitutional Law (With Special Reference to Pornography, Abortion, and Surrogacy), 92 Colum.L.Rev. 1, 31-44 (1992); MacKinnon, Reflections on Sex Equality Under Law, 100 Yale L.J. 1281, 1308-1324 (1991); cf. Rubenfeld, The Right of Privacy, 102 Harv.L.Rev. 737, 788-791 (1989) (similar analysis under the rubric of privacy).
5. To say that restrictions on a right are subject to strict scrutiny is not to say that the right is absolute. Regulations can be upheld if they have no significant impact on the woman's exercise of her right and are justified by important state health objectives. See, e.g., Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 65-67, 79-81 (1976) (upholding requirements of a woman's written consent and recordkeeping). But the Court today reaffirms the essential principle of Roe that a woman has the right "to choose to have an abortion before viability and to obtain it without undue interference from the State." Ante at 846. Under Roe, any more than de minimis interference is undue.
6. The joint opinion agrees with Roe's conclusion that viability occurs at 23 or 24 weeks at the earliest. Compare ante at 860 with 410 U.S. at 160.
7. While I do not agree with the joint opinion's conclusion that these provisions should be upheld, the joint opinion has remained faithful to principles this Court previously has announced in examining counseling provisions. For example, the joint opinion concludes that the "information the State requires to be made available to the woman" must be "truthful and not misleading." Ante at 882. Because the State's information must be "calculated to inform the woman's free choice, not hinder it," ante at 877, the measures must be designed to ensure that a woman's choice is "mature and informed," id. at 883, not intimidated, imposed, or impelled. To this end, when the State requires the provision of certain information, the State may not alter the manner of presentation in order to inflict "psychological abuse," id. at 893, designed to shock or unnerve a woman seeking to exercise her liberty right. This, for example, would appear to preclude a State from requiring a woman to view graphic literature or films detailing the performance of an abortion operation. Just as a visual preview of an operation to remove an appendix plays no part in a physician's securing informed consent to an appendectomy, a preview of scenes appurtenant to any major medical intrusion into the human body does not constructively inform the decision of a woman of the State's interest in the preservation of the woman's health or demonstrate the State's "profound respect for the potential life she carries within her." Id. at 877.
8. The Court's decision in Hodgson v. Minnesota, 497 U.S. 417 (1990), validating a 48-hour waiting period for minors seeking an abortion to permit parental involvement does not alter this conclusion. Here the 24-hour delay is imposed on an adult woman. See id., 497 U.S. at 449-450, n. 35; Ohio v. Akron Ctr. for Reproductive Health, Inc., 497 U.S. 502 (1990). Moreover, the statute in Hodgson did not require any delay once the minor obtained the affirmative consent of either a parent or the court.
9. Because this information is so widely known, I am confident that a developed record can be made to show that the 24-hour delay,
in a large fraction of the cases in which [the restriction] is relevant, . . . will operate as a substantial obstacle to a woman's choice to undergo an abortion.
Ante at 895.
10. The judicial bypass provision does not cure this violation. Hodgson is distinguishable, since this case involves more than parental involvement or approval -- rather, the Pennsylvania law requires that the parent receive information designed to discourage abortion in a face-to-face meeting with the physician. The bypass procedure cannot ensure that the parent would obtain the information, since, in many instances, the parent would not even attend the hearing. A State may not place any restriction on a young woman's right to an abortion, however irrational, simply because it has provided a judicial bypass.
11. Obviously, I do not share THE CHIEF JUSTICE's views of homosexuality as sexual deviance. See Bowers, 478 U.S. at 202-203 n. 2 (BLACKMUN, J., dissenting).
12. JUSTICE SCALIA urges the Court to "get out of this area" and leave questions regarding abortion entirely to the States. Post at 1002. Putting aside the fact that what he advocates is nothing short of an abdication by the Court of its constitutional responsibilities, JUSTICE SCALIA is uncharacteristically naive if he thinks that overruling Roe and holding that restrictions on a woman's right to an abortion are subject only to rational basis review will enable the Court henceforth to avoid reviewing abortion-related issues. State efforts to regulate and prohibit abortion in a post-Roe world undoubtedly would raise a host of distinct and important constitutional questions meriting review by this Court. For example, does the Eighth Amendment impose any limits on the degree or kind of punishment a State can inflict upon physicians who perform, or women who undergo, abortions? What effect would differences among States in their approaches to abortion have on a woman's right to engage in interstate travel? Does the First Amendment permit States that choose not to criminalize abortion to ban all advertising providing information about where and how to obtain abortions?