Abortion.

In Roe v. Wade,570 the Court established a right of personal privacy protected by the Due Process Clause that includes the right of a woman to determine whether or not to bear a child. In doing so, the Court dramatically increased judicial oversight of legislation under the privacy line of cases, striking down aspects of abortion-related laws in practically all the states, the District of Columbia, and the territories. To reach this result, the Court first undertook a lengthy historical review of medical and legal views regarding abortion, finding that modern prohibitions on abortion were of relatively recent vintage and thus lacked the historical foundation which might have preserved them from constitutional review.571 Then, the Court established that the word “person” as used in the Due Process Clause and in other provisions of the Constitution did not include the unborn, and therefore the unborn lacked federal constitutional protection.572 Finally, the Court summarily announced that the “Fourteenth Amendment’s concept of personal liberty and restrictions upon state action” includes “a right of personal privacy, or a guarantee of certain areas or zones of privacy”573 and that “[t]his right of privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”574

It was also significant that the Court held this right of privacy to be “fundamental” and, drawing upon the strict standard of review found in equal protection litigation, held that the Due Process Clause required that any limits on this right be justified only by a “compelling state interest” and be narrowly drawn to express only the legitimate state interests at stake.575 Assessing the possible interests of the states, the Court rejected justifications relating to the promotion of morality and the protection of women from the medical hazards of abortions as unsupported in the record and ill-served by the laws in question. Further, the state interest in protecting the life of the fetus was held to be limited by the lack of a social consensus with regard to the issue of when life begins. Two valid state interests were, however, recognized. “[T]he State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman . . . [and] it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes ‘compelling.’ ”576

Because medical data indicated that abortion prior to the end of the first trimester is relatively safe, the mortality rate being lower than the rates for normal childbirth, and because the fetus has no capability of meaningful life outside the mother’s womb, the Court found that the state has no “compelling interest” in the first trimester and “the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated.”577 In the intermediate trimester, the danger to the woman increases and the state may therefore regulate the abortion procedure “to the extent that the regulation reasonably relates to the preservation and protection of maternal health,” but the fetus is still not able to survive outside the womb, and consequently the actual decision to have an abortion cannot be otherwise impeded.578 “With respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.”579

Thus, the Court concluded that “(a) for the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician; (b) for the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health; (c) for the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

Further, in a companion case, the Court struck down three procedural provisions relating to a law that did allow some abortions.580 These regulations required that an abortion be performed in a hospital accredited by a private accrediting organization, that the operation be approved by the hospital staff abortion committee, and that the performing physician’s judgment be confirmed by the independent examination of the patient by two other licensed physicians. These provisions were held not to be justified by the state’s interest in maternal health because they were not reasonably related to that interest.581 But a clause making the performance of an abortion a crime except when it is based upon the doctor’s “best clinical judgment that an abortion is necessary” was upheld against vagueness attack and was further held to benefit women seeking abortions on the grounds that the doctor could use his best clinical judgment in light of all the attendant circumstances.582

After Roe, various states attempted to limit access to this newly found right, such as by requiring spousal or parental consent to obtain an abortion.583 The Court, however, held that (1) requiring spousal consent was an attempt by the state to delegate a veto power over the decision of the woman and her doctor that the state itself could not exercise,584 (2) that no significant state interests justified the imposition of a blanket parental consent requirement as a condition of the obtaining of an abortion by an unmarried minor during the first 12 weeks of pregnancy,585 and (3) that a criminal provision requiring the attending physician to exercise all care and diligence to preserve the life and health of the fetus without regard to the stage of viability was inconsistent with Roe.586 The Court sustained provisions that required the woman’s written consent to an abortion with assurances that it is informed and freely given, and the Court also upheld mandatory reporting and recordkeeping for public health purposes with adequate assurances of confidentiality. Another provision that barred the use of the most commonly used method of abortion after the first 12 weeks of pregnancy was declared unconstitutional because, in the absence of another comparably safe technique, it did not qualify as a reasonable protection of maternal health and it instead operated to deny the vast majority of abortions after the first 12 weeks.587

In other rulings applying Roe, the Court struck down some requirements and upheld others. A requirement that all abortions performed after the first trimester be performed in a hospital was invalidated as imposing “a heavy, and unnecessary, burden on women’s access to a relatively inexpensive, otherwise accessible, and [at least during the first few weeks of the second trimester] safe abortion procedure.”588 The Court held, however, that a state may require that abortions be performed in hospitals or licensed outpatient clinics, as long as licensing standards do not “depart from accepted medical practice.”589 Various “informed consent” requirements were struck down as intruding upon the discretion of the physician, and as being aimed at discouraging abortions rather than at informing the pregnant woman’s decision.590 The Court also invalidated a 24-
hour waiting period following a woman’s written, informed consent.591

On the other hand, the Court upheld a requirement that tissue removed in clinic abortions be submitted to a pathologist for examination, because the same requirements were imposed for in-hospital abortions and for almost all other in-hospital surgery.592 The Court also upheld a requirement that a second physician be present at abortions performed after viability in order to assist in saving the life of the fetus.593 Further, the Court refused to extend Roe to require states to pay for abortions for the indigent, holding that neither due process nor equal protection requires government to use public funds for this purpose.594

The equal protection discussion in the public funding case bears closer examination because of its significance for later cases. The equal protection question arose because public funds were being made available for medical care to indigents, including costs attendant to childbirth, but not for expenses associated with abortions. Admittedly, discrimination based on a non-suspect class such as indigents does not generally compel strict scrutiny. However, the question arose as to whether such a distinction impinged upon the right to abortion, and thus should be subjected to heightened scrutiny. The Court rejected this argument and used a rational basis test, noting that the condition that was a barrier to getting an abortion—indigency— was not created or exacerbated by the government.

In reaching this finding the Court held that, while a state-created obstacle need not be absolute to be impermissible, it must at a minimum “unduly burden” the right to terminate a pregnancy. And, the Court held, to allocate public funds so as to further a state interest in normal childbirth does not create an absolute obstacle to obtaining and does not unduly burden the right.595 What is interesting about this holding is that the “undue burden” standard was to take on new significance when the Court began raising questions about the scope and even the legitimacy of Roe.

Although the Court expressly reaffirmed Roe v. Wade in 1983,596 its 1989 decision in Webster v. Reproductive Health Services597 signaled the beginning of a retrenchment. Webster upheld two aspects of a Missouri statute regulating abortions: a prohibition on the use of public facilities and employees to perform abortions not necessary to save the life of the mother; and a requirement that a physician, before performing an abortion on a fetus she has reason to believe has reached a gestational age of 20 weeks, make an actual viability determination.598 This retrenchment was also apparent in two 1990 cases in which the Court upheld both one-parent and two-parent notification requirements.599

Webster, however, exposed a split in the Court’s approach to Roe v. Wade. The plurality opinion by Chief Justice Rehnquist, joined in that part by Justices White and Kennedy, was highly critical of Roe, but found no occasion to overrule it. Instead, the plurality’s approach sought to water down Roe by applying a less stringent standard of review. For instance, the plurality found the viability testing requirement valid because it “permissibly furthers the State’s interest in protecting potential human life.”600 Justice O’Connor, however, concurred in the result based on her view that the requirement did not impose “an undue burden” on a woman’s right to an abortion, while Justice Scalia’s concurrence urged that Roe be overruled outright. Thus, when a Court majority later invalidated a Minnesota procedure requiring notification of both parents without judicial bypass, it did so because it did “not reasonably further any legitimate state interest.”601

Roe was not confronted more directly in Webster because the viability testing requirement, as characterized by the plurality, merely asserted a state interest in protecting potential human life after viability, and hence did not challenge Roe’s ‘trimester framework.602 Nonetheless, a majority of Justices appeared ready to reject a strict trimester approach. The plurality asserted a compelling state interest in protecting human life throughout pregnancy, rejecting the notion that the state interest “should come into existence only at the point of viability;”603 Justice O’Connor repeated her view that the trimester approach is “problematic;”604 and, as mentioned, Justice Scalia would have done away with Roe altogether.

Three years later, however, the Court invoked principles of stare decisis to reaffirm Roe’s “essential holding,” although it had by now abandoned the trimester approach and adopted Justice O’Connor’s “undue burden” test and Roe’s “essential holding.”605 According to the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey,606 the right to abortion has three parts. “First is a recognition of the right of a woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman’s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.”

This restatement of Roe’s essentials, recognizing a legitimate state interest in protecting fetal life throughout pregnancy, necessarily eliminated the rigid trimester analysis permitting almost no regulation in the first trimester. Viability, however, still marked “the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions,”607 but less burdensome regulations could be applied before viability. “What is at stake,” the three-Justice plurality asserted, “is the woman’s right to make the ultimate decision, not a right to be insulated from all others in doing so. Regulations which do no more than create a structural mechanism by which the State . . . may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose.” Thus, unless an undue burden is imposed, states may adopt measures “designed to persuade [a woman] to choose childbirth over abortion.”608

Casey did, however, overturn earlier decisions striking down informed consent and 24-hour waiting periods.609 Given the state’s legitimate interests in protecting the life of the unborn and the health of the potential mother, and applying “undue burden” analysis, the three-Justice plurality found these requirements permissible.610 After The Court also upheld application of an additional requirement that women under age 18 obtain the consent of one parent or avail themselves of a judicial bypass alternative.

On the other hand, the Court611 distinguished Pennsylvania’s spousal notification provision as constituting an undue burden on a woman’s right to choose an abortion. “A State may not give to a man the kind of dominion over his wife that parents exercise over their children” (and that men exercised over their wives at common law).612 Although there was an exception for a woman who believed that notifying her husband would subject her to bodily injury, this exception was not broad enough to cover other forms of abusive retaliation, e.g., psychological intimidation, bodily harm to children, or financial deprivation. To require a wife to notify her husband in spite of her fear of such abuse would unduly burden the wife’s liberty to decide whether to bear a child.

The passage of various state laws restricting so-called “partial birth abortions” gave observers an opportunity to see if the “undue burden” standard was in fact likely to lead to a major curtailment of the right to obtain an abortion. In Stenberg v. Carhart,613 the Court reviewed a Nebraska statute that forbade “partially delivering vaginally a living unborn child before killing the unborn child and completing the delivery.” Although the state argued that the statute was directed only at an infrequently used procedure referred to as an “intact dilation and excavation,” the Court found that the statute could be interpreted to include the far more common procedure of “dilation and excavation.”614 The Court also noted that the prohibition appeared to apply to abortions performed by these procedures throughout a pregnancy, including before viability of the fetus, and that the sole exception in the statute was to allow an abortion that was necessary to preserve the life of the mother.615 Thus, the statute brought into question both the distinction maintained in Casey between pre-viability and post-viability abortions, and the oft-repeated language from Roe that provides that abortion restrictions must contain exceptions for situations where there is a threat to either the life or the health of a pregnant woman.616 The Court, however, reaffirmed the central tenets of its previous abortion decisions, striking down the Nebraska law because its possible application to pre-viability abortions was too broad, and the exception for threats to the life of the mother was too narrow.617

Only seven years later, however, the Supreme Court decided Gonzales v. Carhart,618 which, although not formally overruling Stenberg, appeared to signal a change in how the Court would analyze limitations on abortion procedures. Of perhaps greatest significance is that Gonzales was the first case in which the Court upheld a statutory prohibition on a particular method of abortion. In Gonzales, the Court, by a 5–4 vote,619 upheld a federal criminal statute that prohibited an overt act to “kill” a fetus where it had been intentionally “deliver[ed] . . . [so that] in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother.”620 The Court distinguished this federal statute from the Nebraska statute that it had struck down in Stenberg, holding that the federal statute applied only to the intentional performance of the less-common “intact dilation and excavation.” The Court found that the federal statute was not unconstitutionally vague because it provided “anatomical landmarks” that provided doctors with a reasonable opportunity to know what conduct it prohibited.621 Further, the scienter requirement (that delivery of the fetus to these landmarks before fetal demise be intentional) was found to alleviate vagueness concerns.622

In a departure from the reasoning of Stenberg, the Court held that the failure of the federal statute to provide a health exception623 was justified by congressional findings that such a procedure was not necessary to protect the health of a mother. Noting that the Court has given “state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty,” the Court held that, at least in the context of a facial challenge, such an exception was not needed where “[t]here is documented medical disagreement whether the Act’s prohibition would ever impose significant health risks on women.”624 The Court did, however, leave open the possibility that as-applied challenges could still be made in individual cases.625

As in Stenberg, the prohibition considered in Gonzales extended to the performance of an abortion before the fetus was viable, thus directly raising the question of whether the statute imposed an “undue burden” on the right to obtain an abortion. Unlike the statute in Stenberg, however, the ban in Gonzales was limited to the far less common “intact dilation and excavation” procedure, and consequently did not impose the same burden as the Nebraska statute. The Court also found that there was a “rational basis” for the limitation, including governmental interests in the expression of “respect for the dignity of human life,” “protecting the integrity and ethics of the medical profession,” and the creation of a “dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect a late-term abortion.”626

The Court revisited the question of whether particular restrictions place a “substantial obstacle” in the path of women seeking a pre-viability abortion and constitute an “undue burden” on abortion access in its 2016 decision in Whole Woman’s Health v. Hellerstedt.627 At issue in Whole Woman’s Health was a Texas law that required (1) physicians performing or inducing abortions to have active admitting privileges at a hospital located not more than thirty miles from the facility; and (2) the facility itself to meet the minimum standards for ambulatory surgical centers under Texas law.628 Texas asserted that these requirements served various purposes related to women’s health and the safety of abortion procedures, including ensuring that women have easy access to a hospital should complications arise during an abortion procedure and that abortion facilities meet heightened health and safety standards.629

In reviewing Texas’s law, the Whole Woman’s Health Court began by clarifying the underlying “undue burden” standard established in Casey. First, the Court noted that the relevant standard from Casey requires that courts engage in a balancing test to determine whether a law amounts to an unconstitutional restriction on abortion access by considering the “burdens a law imposes on abortion access together with the benefits those laws confer.”630 As a consequence, the Whole Woman’s Health articulation of the undue burden standard necessarily requires that courts “consider the existence or nonexistence of medical benefits” when considering whether a regulation constitutes an undue burden.631 In such a consideration, a reviewing court, when evaluating an abortion regulation purporting to protect woman’s health, may need to closely scrutinize (1) the relative value of the protections afforded under the new law when compared to those prior to enactment632 and (2) health regulations with respect to comparable medical procedures.633 Second, the Whole Woman’s Health decision rejected the argument that judicial scrutiny of abortion regulations was akin to rational basis review, concluding that courts should not defer to legislatures when resolving questions of medical uncertainty that arise with respect to abortion regulations.634 Instead, the Court found that reviewing courts are permitted to place “considerable weight upon evidence and argument presented in judicial proceedings” when evaluating legislation under the undue burden standard, notwithstanding contrary conclusions by the legislature.635

Applying these standards, the Whole Woman’s Health Court viewed the alleged benefits of the Texas requirements as inadequate to justify the challenged provisions under the precedent of Casey, given both the burdens they imposed upon women’s access to abortion and the benefits provided.636 Specifically as to the admitting privileges requirement, the Court determined that nothing in the underlying record showed that this requirement “advanced Texas’s legitimate interest in protecting women’s health” in any significant way as compared to Texas’s previous requirement that abortion clinics have a “working arrangement” with a doctor with admitting privileges.637 In particular, the Court rejected the argument that the admitting privileges requirements were justified to provide an “extra layer” of protection against abusive and unsafe abortion facilities, as the Court concluded that “[d]etermined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations.”638 On the contrary, in the Court’s view, the evidentiary record suggested that the admitting-privileges requirement placed a substantial obstacle in the path of women’s access to abortion because (1) of the temporal proximity between the imposition of the requirement and the closing of a number of clinics once the requirement was enforced;639 and (2) the necessary consequence of the requirement of foreclosing abortion providers from obtaining such privileges for reasons having “nothing to do with ability to perform medical procedures.”640 In the view of the Court, the resulting facility closures that the Court attributed to the first challenged requirement meant fewer doctors, longer wait times, and increased crowding for women at the remaining facilities, and the closures also increased driving distances to an abortion clinic for some women, amounting to an undue burden.641

Similarly as to the surgical-center requirement, the Whole Woman’s Health Court viewed the record as evidencing that the requirement “provides no benefits” in the context of abortions produced through medication and was “inappropriate” as to surgical abortions.642 In so doing, the Court also noted disparities between the treatment of abortion facilities and facilities providing other medical procedures, such as colonoscopies, which the evidence suggested had greater risks than abortions.643 The Court viewed the underlying record as demonstrating that the surgical-center requirement would also have further reduced the number of abortion facilities in Texas to seven or eight and, in so doing, would have burdened women’s access to abortion in the same way as the admitting-privileges requirement (e.g., creating crowding, increasing driving distances).644 Ultimately, the Court struck down the two provisions in the Texas law, concluding that the regulations in question imposed an undue burden on a “large fraction” of women for whom the provisions are an “actual” restriction.645

Footnotes

570
410 U.S. 113, 164 (1973). A companion case was Doe v. Bolton, 410 U.S. 179 (1973). The opinion by Justice Blackman was concurred in by Justices Douglas, Brennan, Stewart, Marshall, and Powell, and Chief Justice Burger. Justices White and Rehnquist dissented, id. at 171, 221, arguing that the Court should follow the traditional due process test of determining whether a law has a rational relation to a valid state objective and that so judged the statute was valid. Justice Rehnquist was willing to consider an absolute ban on abortions even when the mother’s life is in jeopardy to be a denial of due process, 410 U.S. at 173, while Justice White left the issue open. 410 U.S. at 223. [Back to text]
571
410 U.S. at 129–47. [Back to text]
572
410 U.S. at 156–59. [Back to text]
573
410 U.S. at 152–53. [Back to text]
574
410 U.S. at 152–53. [Back to text]
575
410 U.S. at 152, 155–56. The “compelling state interest” test in equal protection cases is reviewed under “The New Standards: Active Review,” infra. [Back to text]
576
410 U.S. at 147–52, 159–63. [Back to text]
577
410 U.S. at 163. [Back to text]
578
410 U.S. at 163. [Back to text]
579
410 U.S. at 163–64. A fetus becomes “viable” when it is “potentially able to live outside the mother’s womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.” Id. at 160 (footnotes omitted). [Back to text]
580
Doe v. Bolton, 410 U.S. 179 (1973). [Back to text]
581
410 U.S. at 192–200. In addition, a residency provision was struck down as violating the privileges and immunities clause of Article IV, § 2. Id. at 200. See analysis under “State Citizenship: Privileges and Immunities,” supra. [Back to text]
582
410 U.S. at 191–92. “[T]he medical judgment may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman’s age— relevant to the well-being of the patient. All these factors may relate to health.” Id. at 192. Presumably this discussion applies to the Court’s holding in Roe that even in the third trimester the woman may not be forbidden to have an abortion if it is necessary to preserve her health as well as her life, 410 U.S. at 163–64, a holding that is unelaborated in the opinion. See also United States v. Vuitch, 402 U.S. 62 (1971). [Back to text]
583
Planned Parenthood v. Danforth, 428 U.S. 52 (1976). See also Bellotti v. Baird, 443 U.S. 622 (1979) (parental consent to minor’s abortion); Colautti v. Franklin, 439 U.S. 379 (1979) (imposition on doctor’s determination of viability of fetus and obligation to take life-saving steps); Singleton v. Wulff, 428 U.S. 106 (1976) (standing of doctors to litigate right of patients to Medicaid-financed abortions); Bigelow v. Virginia, 421 U.S. 809 (1975) (ban on newspaper ads for abortions); Connecticut v. Menillo, 423 U.S. 9 (1975) (state ban on performance of abortion by “any person” may constitutionally be applied to prosecute nonphysicians performing abortions). [Back to text]
584
Planned Parenthood v. Danforth, 428 U.S. 52, 67–72 (1976). The Court recognized the husband’s interests and the state interest in promoting marital harmony. But the latter was deemed not served by the requirement, and, since when the spouses disagree on the abortion decision one has to prevail, the Court thought the person who bears the child and who is the more directly affected should be the one to prevail. Justices White and Rehnquist and Chief Justice Burger dissented. Id. at 92. [Back to text]
585
428 U.S. at 72–75. Minors have rights protected by the Constitution, but the states have broader authority to regulate their activities than those of adults. Here, the Court perceived no state interest served by the requirement that overcomes the woman’s right to make her own decision; it emphasized that it was not holding that every minor, regardless of age or maturity, could give effective consent for an abortion. Justice Stevens joined the other dissenters on this part of the holding. Id. at 101. In Bellotti v. Baird, 443 U.S. 622 (1979), eight Justices agreed that a parental consent law, applied to a mature minor found to be capable of making, and having made, an informed and reasonable decision to have an abortion, was void but split on the reasoning. Four Justices would hold that neither parents nor a court could be given an absolute veto over a mature minor’s decision, while four others would hold that if parental consent is required the state must afford an expeditious access to court to review the parental determination and set it aside in appropriate cases. In H. L. v. Matheson, 450 U.S. 398 (1981), the Court upheld, as applied to an unemancipated minor living at home and dependent on her parents, a statute requiring a physician, “if possible,” to notify the parents or guardians of a minor seeking an abortion. The decisions leave open a variety of questions, addressed by some concurring and dissenting Justices, dealing with when it would not be in the minor’s best interest to avoid notifying her parents and with the alternatives to parental notification and consent. In two 1983 cases the Court applied the Bellotti v. Baird standard for determining whether judicial substitutes for parental consent requirements permit a pregnant minor to demonstrate that she is sufficiently mature to make her own decision on abortion. Compare City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983) (no opportunity for case-by-case determinations); with Planned Parenthood Ass’n v. Ashcroft, 462 U.S. 476 (1983) (adequate individualized consideration). [Back to text]
586
Planned Parenthood v. Danforth, 428 U.S. 52, 81–84 (1976). A law requiring a doctor, subject to penal sanction, to determine if a fetus is viable or may be viable and to take steps to preserve the life and health of viable fetuses was held to be unconstitutionally vague. Colautti v. Franklin, 439 U.S. 379 (1979). [Back to text]
587
Planned Parenthood v. Danforth, 428 U.S. 52, 75–79 (1976). [Back to text]
588
City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 438 (1983); Accord, Planned Parenthood Ass’n v. Ashcroft, 462 U.S. 476 (1983). The Court in Akron relied on evidence that “dilation and evacuation” (D&E) abortions performed in clinics cost less than half as much as hospital abortions, and that common use of the D&E procedure had “increased dramatically” the safety of second trimester abortions in the 10 years since Roe v. Wade. 462 U.S. at 435–36. [Back to text]
589
Simopoulos v. Virginia, 462 U.S. 506, 516 (1983). [Back to text]
590
City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 444–45 (1983); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986). In City of Akron, the Court explained that while the state has a legitimate interest in ensuring that the woman’s consent is informed, it may not demand of the physician “a recitation of an inflexible list of information” unrelated to the particular patient’s health, and, for that matter, may not demand that the physician rather than some other qualified person render the counseling. City of Akron, 462 U.S. 416, 448–49 (1983). [Back to text]
591
City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 450–51 (1983). But see Hodgson v. Minnesota, 497 U.S. 417 (1990) (upholding a 48-hour waiting period following notification of parents by a minor). [Back to text]
592
Planned Parenthood Ass’n v. Ashcroft, 462 U.S. 476, 486–90 (1983). [Back to text]
593
462 U.S. at 482–86, 505. [Back to text]
594
Maher v. Roe, 432 U.S. 464 (1977); Harris v. McRae, 448 U.S. 297 (1980). See also Beal v. Doe, 432 U.S. 438 (1977) (states are not required by federal law to fund abortions); Harris v. McRae, 448 U.S. at 306–11 (same). The state restriction in Maher, 432 U.S. at 466, applied to nontherapeutic abortions, whereas the federal law barred funding for most medically necessary abortions as well, a distinction the Court deemed irrelevant, Harris, 448 U.S. at 323, although it provided Justice Stevens with the basis for reaching different results. Id. at 349 (dissenting). [Back to text]
595
“An indigent woman who desires an abortion suffers no disadvantage as a consequence of Connecticut’s decision to fund childbirth; she continues as before to be dependent on private sources for the services she desires. The State may have made childbirth a more attractive alternative, thereby influencing the woman’s decision, but it has imposed no restriction on access to abortions that was not already there.” Maher, 432 U.S. at 469–74 (the quoted sentence is at 474); Harris, 448 U.S. at 321–26. Justices Brennan, Marshall, and Blackmun dissented in both cases and Justice Stevens joined them in Harris. Applying the same principles, the Court held that a municipal hospital could constitutionally provide hospital services for indigent women for childbirth but deny services for abortion. Poelker v. Doe, 432 U.S. 519 (1977). [Back to text]
596
City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 419–20 (1983). In refusing to overrule Roe v. Wade, the Court merely cited the principle of stare decisis. Justice Powell’s opinion of the Court was joined by Chief Justice Burger, and by Justices Brennan, Marshall, Blackmun, and Stevens. Justice O’Connor, joined by Justices White and Rehnquist, dissented, voicing disagreement with the trimester approach and suggesting instead that throughout pregnancy the test should be the same: whether state regulation constitutes “unduly burdensome interference with [a woman’s] freedom to decide whether to terminate her pregnancy.” 462 U.S. at 452, 461. In the 1986 case of Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986), Justice White, joined by Justice Rehnquist, advocated overruling of Roe v. Wade, Chief Justice Burger thought Roe v. Wade had been extended to the point where it should be reexamined, and Justice O’Connor repeated misgivings expressed in her Akron dissent. [Back to text]
597
492 U.S. 490 (1989). [Back to text]
598
The Court declined to rule on several other aspects of Missouri’s law, including a preamble stating that life begins at conception, and a prohibition on the use of public funds to encourage or counsel a woman to have a nontherapeutic abortion. [Back to text]
599
Ohio’s requirement that one parent be notified of a minor’s intent to obtain an abortion, or that the minor use a judicial bypass procedure to obtain the approval of a juvenile court, was approved. Ohio v. Akron Center for Reproductive Health, 497 U.S. 502 (1990). And, while the Court ruled that Minnesota’s requirement that both parents be notified was invalid standing alone, the statute was saved by a judicial bypass alternative. Hodgson v. Minnesota, 497 U.S. 417 (1990). [Back to text]
600
492 U.S. at 519–20. Dissenting Justice Blackmun, joined by Justices Brennan and Marshall, argued that this “permissibly furthers” standard “completely disregards the irreducible minimum of Roe . . . that a woman has a limited fundamental constitutional right to decide whether to terminate a pregnancy,” and instead balances “a lead weight” (the State’s interest in fetal life) against a “feather” (a woman’s liberty interest). Id. at 555, 556 n.11. [Back to text]
601
Hodgson v. Minnesota, 497 U.S. 417, 450 (1990). [Back to text]
602
492 U.S. at 521. Concurring Justice O’Connor agreed that “no decision of this Court has held that the State may not directly promote its interest in potential life when viability is possible.” Id. at 528. [Back to text]
603
492 U.S. at 519. [Back to text]
604
492 U.S. at 529. Previously, dissenting in City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 458 (1983), Justice O’Connor had suggested that the Roe trimester framework “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.” [Back to text]
605
It was a new alignment of Justices that restated and preserved Roe. Joining Justice O’Connor in a jointly authored opinion adopting and applying Justice O’Connor’s “undue burden” analysis were Justices Kennedy and Souter. Justices Blackmun and Stevens joined parts of the plurality opinion, but dissented from other parts. Justice Stevens would not have abandoned trimester analysis, and would have invalidated the 24-hour waiting period and aspects of the informed consent requirement. Justice Blackmun, author of the Court’s opinion in Roe, asserted that “the right to reproductive choice is entitled to the full protection afforded by this Court before Webster,” id. at 923, and would have invalidated all of the challenged provisions. Chief Justice Rehnquist, joined by Justices White, Scalia, and Thomas, would have overruled Roe and upheld all challenged aspects of the Pennsylvania law. [Back to text]
606
505 U.S. 833, 846 (1992). [Back to text]
607
505 U.S. 833, 860 (1992). [Back to text]
608
505 U.S. at 877–78. Application of these principles in Casey led the Court to uphold overrule some precedent, but to invalidate arguably the most restrictive provision. The four provisions challenged which were upheld included a narrowed definition of “medical emergency” (which controlled exemptions from the Act’s limitations), record keeping and reporting requirements, an informed consent and 24-hour waiting period requirement; and a parental consent requirement, with possibility for judicial bypass, applicable to minors. The provisions which was invalidated as an undue burden on a woman’s right to an abortion was a spousal notification requirement. [Back to text]
609
City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983) (invalidating “informed consent” and 24-hour waiting period); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986) (invalidating informed consent requirement). [Back to text]
610
Requiring informed consent for medical procedures was found to be both commonplace and reasonable, and, in the absence of any evidence of burden, the state could require that information relevant to informed consent be provided by a physician rather than an assistant. The 24-hour waiting period was approved both in theory (it being reasonable to assume “that important decisions will be more informed and deliberate if they follow some period of reflection”) and in practice (in spite of “troubling” findings of increased burdens on poorer women who must travel significant distances to obtain abortions, and on all women who must twice rather than once brave harassment by anti-abortion protesters). 505 U.S. at 885–87. [Back to text]
611
The plurality Justices were joined in this part of their opinion by Justices Blackmun and Stevens. [Back to text]
612
505 U.S. at 898. [Back to text]
613
530 U.S. 914 (2000). [Back to text]
614
530 U.S. at 938–39. [Back to text]
615
The Nebraska law provided that such procedures could be performed where “necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.” Neb. Rev. Stat. Ann. § 28–328(1). [Back to text]
616
Roe v. Wade, 410 U.S. 113, 164 (1973). [Back to text]
617
As to the question of whether an abortion statute that is unconstitutional in some instances should be struck down in application only or in its entirety, see Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320 (2006) (challenge to parental notification restrictions based on lack of emergency health exception remanded to determine legislative intent regarding severability of those applications). [Back to text]
618
550 U.S. 124 (2007). [Back to text]
619
Justice Kennedy wrote the majority opinion, joined by Justices Roberts, Scalia, Thomas, and Alito, while Justice Ginsberg authored a dissenting opinion, which was joined by Justices Steven, Souter and Breyer. Justice Thomas also filed a concurring opinion, joined by Justice Scalia, calling for overruling Casey and Roe. [Back to text]
620
18 U.S.C. § 1531(b)(1)(A). The penalty imposed on a physician for a violation of the statute was fines and/or imprisonment for not more than 2 years. In addition, the physician could be subject to a civil suit by the father (or maternal grandparents, where the mother is a minor) for money damages for all injuries, psychological and physical, occasioned by the violation of this section, and statutory damages equal to three times the cost of the partial-birth abortion. [Back to text]
621
550 U.S. at 150. [Back to text]
622
550 U.S. at 148–150. [Back to text]
623
As in Stenberg, the statute provided an exception for threats to the life of a woman. [Back to text]
624
550 U.S. at 162. Arguably, this holding overruled Stenberg insofar as Stenberg had allowed a facial challenge to the failure of Nebraska to provide a health exception to its prohibition on intact dilation and excavation abortions. 530 U.S. at 929–38. [Back to text]
625
550 U.S. at 168. [Back to text]
626
550 U.S. at 160. [Back to text]
627
579 U.S. ___, No. 15–274, slip op. (2016). [Back to text]
628
Id. at 1–2. [Back to text]
629
Id. at 22. [Back to text]
630
Id. at 19. [Back to text]
631
Id. [Back to text]
632
Id. at 22, 28–30 (reviewing the state of the law prior to the enactment of the abortion regulation to determine whether there was a “significant health-related problem that the new law helped to cure.”). [Back to text]
633
Id. at 30 (comparing the health risks associated with abortion relative to other medical procedures). [Back to text]
634
Id. at 20. [Back to text]
635
See id. (noting that in Gonzales v. Carhart, 550 U.S. 124, 165 (2007), the Court maintained that courts have an “independent constitutional duty” to review factual findings when reviewing legislation as inconsistent with abortion rights). [Back to text]
636
Id. at 19 (quoting and citing Planned Parenthood v. Casey, 505 U.S. 833, 877–78 (1992) (plurality opinion)). [Back to text]
637
Id. at 23.The Court further noted that Texas had admitted it did not know of a “single instance” where the requirement would have helped “even one woman” obtain “better treatment.” Id. [Back to text]
638
Id. at 27. [Back to text]
639
Id. at 24. [Back to text]
640
Specifically, the Court noted that hospitals typically condition admitting privileges based on the number admissions a doctor has to a hospital—policies that, because of the safety of abortion procedures, meant that providers likely would be unable to obtain and maintain such privileges. Id. at 25. [Back to text]
641
Id. at 26. The Court noted that increased driving distances are not necessarily an undue burden, but in this case viewed them as “one additional burden” which, when taken together with the other burdens—and the “virtual absence of any health benefit”—lead to the conclusion that the admitting-privileges requirement constitutes an undue burden. Id. [Back to text]
642
Id. at 30. [Back to text]
643
Id. at 30–31. [Back to text]
644
Id. at 32, 35–36. [Back to text]
645
Id. at 39. In so concluding, the Whole Woman’s Health Court appears to have clarified that the burden for a plaintiff to establish that an abortion restriction is unconstitutional on its face (as opposed to unconstitutional as applied in a particular circumstance) is to show that the law would be unconstitutional with respect to a “large fraction” of women for whom the provisions are relevant. Id. (rejecting Texas’s argument that the regulations in question would not affect most women of reproductive age in Texas); cf. United States v. Salerno, 481 U.S. 739, 745 (1987) (“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”). [Back to text]