THORNBURGH V. AMER. COLL. OF OBSTETRICIANS, 476 U. S. 747 (1986)
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U.S. Supreme Court
Thornburgh v. Amer. Coll. of Obstetricians, 476 U.S. 747 (1986)
Thornburgh v. American College of Obstetricians & Gynecologists
No. 84-495
Argued November 5, 1985
Decided June 11, 1986
476 U.S. 747
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
Syllabus
Appellees brought an action in Federal District Court alleging that the Pennsylvania Abortion Control Act of 1982 violated the Federal Constitution and seeking declaratory and injunctive relief. The court denied appellees' motion for a preliminary injunction, except as to one provision of the Act which it held was invalid. The Court of Appeals, after granting appellees' motion to enjoin enforcement of the entire Act, held unconstitutional, on the basis of the intervening decisions in Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U. S. 476, and Simopoulos v. Virginia, 462 U. S. 506, the following provisions of the Act: (1) the portions of § 3205 that, with respect to the requirement that the woman give her "informed consent" to an abortion, require her to be informed of the name of the physician who will perform the abortion, the "particular medical risks" of the abortion procedure to be used and of carrying her child to term, and the facts that there may be "detrimental physical and psychological effects," medical assistance benefits may be available for prenatal care, childbirth, and neonatal care, the father is liable to assist in the child's support, and printed materials are available from the State that describe the fetus and list agencies offering alternatives to abortion; (2) § 3208 that requires such printed materials to include a statement that there are agencies willing to help the mother carry her child to term and to assist her after the child is born and a description of the probable anatomical and physiological characteristics of an unborn child at "two-week gestational increments"; (3) §§ 3214(a) and (h) that require the physician to report, among other things, identification of the performing and referring physicians, information as to the woman's residence, age, race, marital status, and number of prior pregnancies, and the basis for any judgment that a medical emergency existed or for any determination of nonviability, and the method of payment for the abortion, and further provide that such reports shall not be deemed public records, but shall be available for public inspection and copying in a form that will not lead to disclosure of the identity of any person filing a report; (4) § 3211(a) that requires the physician, after the
first trimester, to report the basis for his determination that a child is not viable; (5) §3210(b) that requires a physician performing a postviability abortion to exercise the degree of care required to preserve the life and health of any unborn child intended to be born and to use the abortion technique that would provide the best opportunity for the unborn child to be aborted alive unless it would present a significantly greater medical risk to the pregnant woman's life or health; and (6) § 3210(c) that requires that a second physician be present during an abortion performed when viability is possible, which physician is to take all reasonable steps necessary to preserve the child's life and health. The court held that the validity of other provisions of the Act might depend on evidence adduced at the trial, and accordingly remanded these features of the case to the District Court.
Held:
1. In a situation such as is presented by this case, where the judgment below is not final and the case is remanded for further development of the facts, this Court has no appellate jurisdiction under 28 U.S.C. § 1254(2). But the jurisdictional statement here is treated as a petition for certiorari, and the writ is granted. Pp. 476 U. S. 754-755.
2. With a full record before it on the issues as to the validity of the Act and with the intervening decisions in Akron, Ashcroft, and Simopoulos at hand, the Court of Appeals was justified in proceeding to plenary review of those issues. It was not limited to determining whether the District Court abused its discretion in denying a preliminary injunction. Pp. 476 U. S. 755-757.
3. The States are not free, under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies. The provisions of the Pennsylvania Act that the Court of Appeals invalidated wholly subordinate constitutional privacy interests and concerns with maternal health to the effort to deter a woman from making a decision that, with her physician, is hers to make. Pp. 476 U. S. 758-771.
(a) The printed materials required by §§ 3205 and 3208 are nothing less than an attempt to wedge the State's message discouraging abortion into the privacy of the informed consent dialogue between the woman and her physician. Similarly, § 3205's requirement that the woman be advised that medical assistance may be available, and that the father is responsible for financial assistance in support of the child, are poorly disguised elements of discouragement for the abortion decision. And § 3205's requirements that the physician inform the woman of "detrimental physical and psychological effects" and of all "particular medical risks" are the antithesis of informed consent. Pp. 476 U. S. 759-765.
(b) The scope of the information required by §§ 3214(a) and (h) and 3211(a) and its availability to the public belie any assertions by the State
that it is advancing any legitimate interest. The reporting requirements of those sections raise the specter of public exposure and harassment of women who choose to exercise their personal, intensely private, right, with their physician, to end a pregnancy. Thus, they pose an unacceptable danger of deterring the exercise of that right, and must be invalidated. Pp. 476 U. S. 765-768.
(c) Section 3210(b) is facially invalid as being unsusceptible to a construction that does not require the mother to bear an increased medical risk in order save her viable fetus. Section 3210(c), by failing to provide a medical emergency exception for the situation where the mother's health is endangered by delay in the second physician's arrival, chills the performance of a late abortion, which, more than one performed at an earlier date, tends to be under emergency conditions. Pp. 476 U. S. 768-771.
737 F.2d 283, affirmed.
BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, POWELL, and STEVENS, JJ., joined. STEVENS, J., filed a concurring opinion, post, p. 476 U. S. 772. BURGER, C.J., filed a dissenting opinion, post, p. 476 U. S. 782. WHITE, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 476 U. S. 785. O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 476 U. S. 814.
JUSTICE BLACKMUN delivered the opinion of the Court.
This is an appeal from a judgment of the United States Court of Appeals for the Third Circuit reviewing the District Court's rulings upon a motion for a preliminary injunction. The Court of Appeals held unconstitutional several provisions of Pennsylvania's current Abortion Control Act, 1982 Pa. Laws, Act No. 138, now codified as 18 Pa.Cons.Stat. § 3201 et seq. (1982). [Footnote 1] Among the provisions ruled invalid by the Court of Appeals were portions of § 3205, relating to "informed consent"; § 3208, concerning "printed information"; §§ 3210(b) and (c), having to do with postviability abortions; and § 3211(a) and §§ 3214(a) and (h), regarding reporting requirements. [Footnote 2]
I
The Abortion Control Act was approved by the Governor of the Commonwealth on June 11, 1982. By its own terms, however, see § 7 of the Act, it was to become effective only 180 days thereafter, that is, on the following December 8. It had been offered as an amendment to a pending bill to regulate paramilitary training.
The 1982 Act was not the Commonwealth's first attempt, after this Court's 1973 decisions in Roe v. Wade, 410 U. S. 113, and Doe v. Bolton, 410 U. S. 179, to impose abortion restraints. The State's first post-1973 Abortion Control Act, 1974 Pa. Laws, Act No. 209, was passed in 1974 over the Governor's veto. After extensive litigation, various provisions of the 1974 statute were ruled unconstitutional, including those relating to spousal or parental consent, to the choice of procedure for a postviability abortion, and to the proscription of abortion advertisements. See Planned Parenthood Assn. v. Fitzpatrick, 401 F.Supp. 554 (ED Pa.1975), summarily aff'd in part sub nom. Franklin v. Fitzgerald, 428 U.S. 901 (1976), and summarily vacated in part and remanded sub nom. Beal v. Franklin, 428 U.S. 901 (1976), modified on remand (No. 74-2440) (ED Pa.1977), aff'd sub nom. Colautti v. Franklin, 439 U. S. 379 (1979). See also Doe v. Zimmerman, 405 F.Supp. 534 (MD Pa.1975).
In 1978, the Pennsylvania Legislature attempted to restrict access to abortion by limiting medical assistance funding for the procedure. 2 1978 Pa. Laws, Act No. 16A (pp. 1506-1507) and 11978 Pa. Laws, Act No. 148. This effort, too, was successfully challenged in federal court, Roe v. Casey, 464 F.Supp. 487 (ED Pa.1978), and that judgment was affirmed by the Third Circuit. 623 F.2d 829 (1980).
In 1981, abortion legislation was proposed in the Pennsylvania House as an amendment to a pending Senate bill to outlaw
"tough-guy competitions." [Footnote 3] The suggested amendment, aimed at limiting abortions, was patterned after a model statute developed by a Chicago-based, nonprofit anti-abortion organization. See Note, Toward Constitutional Abortion Control Legislation: The Pennsylvania Approach, 87 Dick.L.Rev. 373, 382, n. 84 (1983). The bill underwent further change in the legislative process but, when passed, was vetoed by the Governor. See 737 F.2d 283, 288-289 (CA3 1984). Finally, the 1982 Act was formulated, enacted, and approved.
After the passage of the Act, but before its effective date, the present litigation was instituted in the United States District Court for the Eastern District of Pennsylvania. The plaintiffs, who are the appellees here, were the American College of Obstetricians and Gynecologists, Pennsylvania Section; certain physicians licensed in Pennsylvania; clergymen; an individual who purchases from a Pennsylvania insurer health care and disability insurance extending to abortions; and Pennsylvania abortion counselors and providers. Alleging that the Act violated the United States Constitution, the plaintiffs, pursuant to 42 U.S.C. § 1983, sought declaratory and injunctive relief. The defendants named in the complaint were the Governor of the Commonwealth, other Commonwealth officials, and the District Attorney for Montgomery County, Pa.
The plaintiffs promptly filed a motion for a preliminary injunction. Forty-one affidavits accompanied the motion. The defendants, on their part, submitted what the Court of Appeals described as "an equally comprehensive opposing memorandum." 737 F.2d 289. The District Court then ordered the parties to submit a "stipulation of uncontested facts," as authorized by local rule. The parties produced a stipulation "solely for purposes of a determination on plaintiffs'
motion for preliminary injunction," and "without prejudice to any party's right to controvert any facts or to prove any additional facts at any later proceeding in this action." App. 9a-10a.
Relying substantially on the opinions of the respective Courts of Appeals in Akron Center for Reproductive Health, Inc. v. City of Akron, 651 F.2d 1198 (CA6 1981), later aff'd in part and rev'd in part, 462 U. S. 416 (1983), and in Planned Parenthood Assn. of Kansas City v. Ashcroft, 655 F.2d 848 (CA8 1981), later aff'd in part and rev'd in part, 462 U. S. 476 (1983), the District Court concluded that, with one exception, see n 1, supra, the plaintiffs had failed to establish a likelihood of success on the merits, and thus were not entitled to preliminary injunctive relief 552 F.Supp. 791 (1982).
Appellees appealed from the denial of the preliminary injunction, and appellants cross-appealed with respect to the single statutory provision as to which the District Court had allowed relief. The Third Circuit then granted appellees' motion to enjoin enforcement of the entire Act pending appeal. After expedited briefing and argument, the court withheld judgment pending the anticipated decisions by this Court in Akron, supra, Ashcroft, supra, and Simopoulos v. Commonwealth, 221 Va. 1059, 277 S.E.2d 194 (1981), all of which had been accepted for review here, had been argued, and were under submission. Those three cases were decided by this Court on June 15, 1983. See Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416; Planned Parenthood Assn. of Kansas City, Missouri, Inc. v. Ashcroft, 462 U. S. 476; Simopoulos v. Virginia, 462 U. S. 506. After reargument in light of those decisions, the Court of Appeals, with one judge concurring in part and dissenting in part, ruled that various provisions of the Act were unconstitutional. 737 F.2d 283 (1984). Appellants' petition for rehearing en banc was denied, with four judges voting to grant the petition. Id. at 316, 317. When a jurisdictional statement
was filed here, we postponed further consideration of the question of our jurisdiction to the hearing on the merits. 471 U.S. 1014 (1985).
II
We are confronted initially with the question whether we have appellate jurisdiction in this case. Appellants purport to have taken their appeal to this Court pursuant to 28 U.S.C. § 1254(2). [Footnote 4] It seems clear, and the parties appear to agree, see Brief for Appellants 21, that the judgment of the Court of Appeals was not a final judgment in the ordinary meaning of that term. The court did not hold the entire Act unconstitutional, but ruled, instead, that some provisions were invalid under Akron, Ashcroft, and Simopoulos, and that the validity of other provisions might depend on evidence adduced at the trial, see 737 F.2d 299-300, or on procedural rules to be promulgated by the Supreme Court of Pennsylvania, see id. at 296-297. It remanded these features of the case to the District Court. Id. at 304.
Slaker v. O'Connor, 278 U. S. 188, 278 U. S. 189-190 (1929), and McLish v. Roff, 141 U. S. 661, 141 U. S. 665-666 (1891), surely suggest that, under these circumstances, we do not have appellate jurisdiction. [Footnote 5] See also South Carolina Electric & Gas Co. v. Flemming, 351 U.S. 901 (1956). Although the authority of Slaker and South Carolina Electric has been questioned, the Court to date has found it unnecessary to put the issue to rest. See Doran v. Salem Inn, Inc., 422 U. S. 922, 422 U. S. 927 (1975); Renton v. Playtime Theatres, Inc., 475 U. S. 41, 475 U. S. 43-44, n. 1 (1986). In some cases raising this issue of the
scope of appellate jurisdiction, the Court has found any finality requirement to have been satisfied in light of the facts. See, e.g., New Orleans v. Dukes, 427 U. S. 297, 427 U. S. 302 (1976); Chicago v. Atchison, T. & S. F. R. Co., 357 U. S. 77, 357 U. S. 82-83 (1968). In other cases, the Court has avoided the issue by utilizing 28 U.S.C. § 2103 and granting certiorari. See, e.g., Doran, 422 U.S. at 422 U. S. 927; El Paso v. Simmons, 379 U. S. 497, 379 U. S. 503 (1965); see also Escambia County v. McMillan, 466 U. S. 48, 466 U. S. 50, n. 4 (1984).
We have concluded that it is time that this undecided issue be resolved. We therefore hold, on the reasoning of McLish v. Roff, 141 U.S. at 141 U. S. 665-668, that in a situation such as this one, where the judgment is not final and where the case is remanded for further development of the facts, we have no appellate jurisdiction under § 1254(2).
We nevertheless treat appellants' jurisdictional statement as a petition for certiorari, grant the writ, and move on to the merits. [Footnote 6]
III
Appellants assert that the Court of Appeals erred in holding portions of the Act unconstitutional, since the scope of its review of the District Court's denial of a preliminary injunction as to those sections should have been limited to determining whether the trial court abused its discretion in finding the presence or absence of irreparable harm and a probability that the plaintiffs would succeed on the merits. Such limited review normally is appropriate, see Doran v. Salem Inn, Inc., 422 U.S. at 422 U. S. 931-932; Brown v. Chote, 411 U. S. 452, 411 U. S. 456-457 (1973), inasmuch as the primary purpose of a preliminary injunction is to preserve the relative positions of the parties. See University of Texas v. Camenisch, 451 U. S. 390, 451 U. S. 395 (1981). Further, the necessity for an expeditious resolution often means that the injunction is issued on a procedure
less stringent than that which prevails at the subsequent trial on the merits of the application for injunctive relief. See United States Steel Corp. v. Fraternal Assn. of Steelhaulers, 431 F.2d 1046, 1048 (CA3 1970); see also Mayo v. Lakeland Highlands Canning Co., 309 U. S. 310, 309 U. S. 316 (1940).
This approach, however, is not inflexible. The Court on more than one occasion in this area has approved proceedings deviating from the stated norm. In Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952), the District Court had issued a preliminary injunction restraining the Secretary of Commerce from seizing the Nation's steel mills. The Court of Appeals stayed the injunction. This Court found that the case was ripe for review, despite the early stage of the litigation, and went on to address the merits. Id. at 343 U. S. 585. And in Smith v. Vulcan Iron Works, 165 U. S. 518 (1897), the District Court issued injunctions in two patent cases and referred them to a Master for accounting. The Court of Appeals reversed. This Court ruled that the Court of Appeals had acted properly in deciding the merits, since review of interlocutory appeals was designed not only to permit the defendant to obtain immediate relief, but also, in certain cases, to save the parties the expense of further litigation. Id. at 165 U. S. 525.
The Third Circuit's decision to address the constitutionality of the Pennsylvania Act finds further support in this Court's decisions that, when the unconstitutionality of the particular state action under challenge is clear, a federal court need not abstain from addressing the constitutional issue pending state court review. See, e.g., Bailey v. Patterson, 369 U. S. 31, 369 U. S. 33 (1962); Turner v. City of Memphis, 369 U. S. 350, 369 U. S. 353 (1962); Zwickler v. Koota, 389 U. S. 241, 389 U. S. 251, n. 14 (1967). See also Singleton v. Wulff, 428 U. S. 106, 428 U. S. 121 (1976). See generally Spann, Simple Justice, 73 Geo. L.J. 1041, 1055, n. 77 (1985). [Footnote 7]
Thus, as these cases indicate, if a district court's ruling rests solely on a premise as to the applicable rule of law, and the facts are established or of no controlling relevance, that ruling may be reviewed even though the appeal is from the entry of a preliminary injunction. [Footnote 8] The Court of Appeals in this case properly recognized and applied these principles when it observed:
"Thus, although this appeal arises from a ruling on a request for a preliminary injunction, we have before us an unusually complete factual and legal presentation from which to address the important constitutional issues at stake. The customary discretion accorded to a District Court's ruling on a preliminary injunction yields to our plenary scope of review as to the applicable law."
That a court of appeals ordinarily will limit its review in a case of this kind to abuse of discretion is a rule of orderly judicial administration, not a limit on judicial power. With a full record before it on the issues now before us, and with the intervening decisions in Akron, Ashcroft, and Simopoulos at hand, the Court of Appeals was justified in proceeding to plenary review of those issues.
IV
This case, as it comes to us, concerns the constitutionality of six provisions of the Pennsylvania Act that the Court of Appeals struck down as facially invalid: § 3205 ("informed consent"); § 3208 ("printed information"); §§ 3214(a) and (h) (reporting requirements); § 3211(a) (determination of viability); § 3210(b) (degree of care required in postviability abortions); and § 3210(c) (second physician requirement). We have no reason to address the validity of the other sections of the Act challenged in the District Court. [Footnote 9]
A
Less than three years ago, this Court, in Akron, Ashcroft, and Simopoulos, reviewed challenges to state and municipal legislation regulating the performance of abortions. In Akron, the Court specifically reaffirmed Roe v. Wade, 410 U. S. 113 (1973). See 462 U.S. at 462 U. S. 420, 462 U. S. 426-431. Again today, we reaffirm the general principles laid down in Roe and in Akron.
In the years since this Court's decision in Roe, States and municipalities have adopted a number of measures seemingly designed to prevent a woman, with the advice of her physician, from exercising her freedom of choice. Akron is but one example. But the constitutional principles that led this Court to its decisions in 1973 still provide the compelling reason for recognizing the constitutional dimensions of a woman's right to decide whether to end her pregnancy.
"[I]t should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them."
Brown v. Board of Education, 349 U. S. 294, 349 U. S. 300 (1955). The States are not free, under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies. Appellants claim that the statutory provisions before us today further legitimate compelling interests of the Commonwealth. Close analysis of those provisions, however, shows that they wholly subordinate constitutional privacy interests and concerns with maternal health in an effort to deter a woman from making a decision that, with her physician, is hers to make.
B
We turn to the challenged statutes:
1. Section 3205 ("informed consent") and § 3208 ("printed information"). Section 3205(a) requires that the woman give her "voluntary and informed consent" to an abortion. Failure to observe the provisions of § 3205 subjects the physician to suspension or revocation of his license, and subjects any
other person obligated to provide information relating to informed consent to criminal penalties. § 3205(c). A requirement that the woman give what is truly a voluntary and informed consent, as a general proposition, is, of course, proper and is surely not unconstitutional. See Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52, 428 U. S. 67 (1976). But the State may not require the delivery of information designed "to influence the woman's informed choice between abortion or childbirth." Akron, 462 U.S. at 462 U. S. 443-444.
Appellants refer to the Akron ordinance, Brief for Appellants 67, as did this Court in Akron itself, 462 U.S. at 462 U. S. 445, as "a litany of information" and as "a parade of horribles'" of dubious validity plainly designed to influence the woman's choice. They would distinguish the Akron situation, however, from the Pennsylvania one. Appellants assert that statutes "describing the general subject matter relevant to informed consent," ibid., and stating "in general terms the information to be disclosed," id. at 462 U. S. 447, are permissible, and they further assert that the Pennsylvania statutes do no more than that.
We do not agree. We conclude that, like Akron's ordinance, §§ 3205 and 3208 fail the Akron measurement. The two sections prescribe in detail the method for securing "informed consent." Seven explicit kinds of information must be delivered to the woman at least 24 hours before her consent is given, and five of these must be presented by the woman's physician. The five are: (a) the name of the physician who will perform the abortion, (b) the "fact that there may be detrimental physical and psychological effects which are not accurately foreseeable," (c) the "particular medical risks associated with the particular abortion procedure to be employed," (d) the probable gestational age, and (e) the "medical risks associated with carrying her child to term." The remaining two categories are (f) the "fact that medical assistance benefits may be available for prenatal care, childbirth
and neonatal care," and (g) the "fact that the father is liable to assist" in the child's support, "even in instances where the father has offered to pay for the abortion." §§ 3205(a)(1) and (2). The woman also must be informed that materials printed and supplied by the Commonwealth that describe the fetus and that list agencies offering alternatives to abortion are available for her review. If she chooses to review the materials but is unable to read, the materials "shall be read to her," and any answer she seeks must be "provided her in her own language." § 3205(a)(2)(iii). She must certify in writing, prior to the abortion, that all this has been done. § 3205(a)(3). The printed materials "shall include the following statement":
"'There are many public and private agencies willing and able to help you to carry your child to term, and to assist you and your child after your child is born, whether you choose to keep your child or place her or him for adoption. The Commonwealth of Pennsylvania strongly urges you to contact them before making a final decision about abortion. The law requires that your physician or his agent give you the opportunity to call agencies like these before you undergo an abortion.'"
§ 3208(a)(1). The materials must describe the
"probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from fertilization to full term, including any relevant information on the possibility of the unborn child's survival."
§ 3208(a)(2).
In Akron, this Court noted: "The validity of an informed consent requirement thus rests on the State's interest in protecting the health of the pregnant woman." 462 U.S. at 462 U. S. 443. The Court went on to state:
"This does not mean, however, that a State has unreviewable authority to decide what information a woman must be given before she chooses to have an
abortion. It remains primarily the responsibility of the physician to ensure that appropriate information is conveyed to his patient, depending on her particular circumstances. Danforth's recognition of the State's interest in ensuring that this information be given will not justify abortion regulations designed to influence the woman's informed choice between abortion or childbirth."
Id. at 443-444.
The informational requirements in the Akron ordinance were invalid for two "equally decisive" reasons. Id. at 462 U. S. 445. The first was that "much of the information required is designed not to inform the woman's consent, but rather to persuade her to withhold it altogether." Id. at 462 U. S. 444. The second was that a rigid requirement that a specific body of information be given in all cases, irrespective of the particular needs of the patient, intrudes upon the discretion of the pregnant woman's physician, and thereby imposes the "undesired and uncomfortable straitjacket" with which the Court in Danforth, 428 U.S. at 428 U. S. 67, n. 8, was concerned.
These two reasons apply with equal and controlling force to the specific and intrusive informational prescriptions of the Pennsylvania statutes. The printed materials required by §§ 3205 and 3208 seem to us to be nothing less than an outright attempt to wedge the Commonwealth's message discouraging abortion into the privacy of the informed consent dialogue between the woman and her physician. The mandated description of fetal characteristics at 2-week intervals, no matter how objective, is plainly overinclusive. This is not medical information that is always relevant to the woman's decision, and it may serve only to confuse and punish her, and to heighten her anxiety, contrary to accepted medical practice. [Footnote 10] Even 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. See Women's Medical Center of Providence, Inc. v. Roberts, 530 F.Supp. 1136, 1154 (RI 1982). All this is, or 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 of §§ 3205(a)(2)(i) and (ii) 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 would be nonmedical information beyond the physician's area of expertise, and, 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. And a victim of rape should not have to hear gratuitous advice that an unidentified perpetrator is liable for support if she continues the pregnancy to term. 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.
The requirements of §§ 3205(a)(1)(ii) and (iii) that the woman be informed by the physician of "detrimental physical and psychological effects" and of all "particular medical risks" compound the problem of medical attendance, increase the patient's anxiety, and intrude upon the physician's exercise of proper professional judgment. This type of compelled information is the antithesis of informed consent. 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 anti-abortion character of the statute, and its real purpose. Pennsylvania, like Akron, "has gone far beyond merely describing the general subject matter relevant to informed consent." Akron, 462 U.S. at 462 U. S. 445. In addition, the Commonwealth would require the physician to recite its litany "regardless of whether, in his judgment, the information is relevant to [the patient's] personal decision." Ibid. These statutory defects cannot be saved by any facts that might be forthcoming at a subsequent hearing. Section 3205's informational requirements therefore are facially unconstitutional. [Footnote 11]
Appellants assert, however, that even if this be so, the remedy is to allow the remainder of § 3205 to be severed and become effective. We rule otherwise. The radical dissection necessary for this would leave § 3205 with little resemblance to that intended by the Pennsylvania Legislature. We rejected a similar suggestion as to the ordinance in
Akron, 462 U.S. at 462 U. S. 445, n. 37, despite the presence there of a broad severability clause. We reach the same conclusion here, where no such clause is present, and reject the plea for severance. See Carter v. Carter Coal Co., 298 U. S. 238, 298 U. S. 312-313 (1936).
2. Sections 3214(a) and (h) (reporting) and § 3211(a) (determination of viability). Section 3214(a)(8), part of the general reporting section, incorporates § 3211(a). Section 3211(a) requires the physician to report the basis for his determination "that a child is not viable." It applies only after the first trimester. The report required by §§ 3214(a) and (h) is detailed, and must include, among other things, identification of the performing and referring physicians and of the facility or agency; information as to the woman's political subdivision and State of residence, age, race, marital status, and number of prior pregnancies; the date of her last menstrual period and the probable gestational age; the basis for any judgment that a medical emergency existed; the basis for any determination of nonviability; and the method of payment for the abortion. The report is to be signed by the attending physician. § 3214(b).
Despite the fact that § 3214(e)(2) provides that such reports "shall not be deemed public records" within the meaning of the Commonwealth's "Right-to-Know Law," Pa.Stat.Ann., Tit. 65, § 66.1 et seq. (Purdon 1959 and Supp.1985), each report "shall be made available for public inspection and copying within 15 days of receipt in a form which will not lead to the disclosure of the identity of any person filing a report." Similarly, the report of complications, required by § 3214(h), "shall be open to public inspection and copying." A willful failure to file a report required under § 3214 is "unprofessional conduct," and the noncomplying physician's license "shall be subject to suspension or revocation." § 3214(i)(1).
The scope of the information required and its availability to the public belie any assertions by the Commonwealth that it is advancing any legitimate interest. In Planned Parenthood
of Central Missouri. v. Danforth, 428 U.S. at 428 U. S. 80, we recognized that recordkeeping and reporting provisions
"that are reasonably directed to the preservation of maternal health and that properly respect a patient's confidentiality and privacy are permissible."
But the reports required under the Act before us today go well beyond the health-related interests that served to justify the Missouri reports under consideration in Danforth. Pennsylvania would require, as Missouri did not, information as to method of payment, as to the woman's personal history, and as to the bases for medical judgments. The Missouri reports were to be used "only for statistical purposes." See id. at 427 U. S. 87. They were to be maintained in confidence, with the sole exception of public health officers. In Akron, the Court explained its holding in Danforth when it said: "The decisive factor was that the State met its burden of demonstrating that these regulations furthered important health-related state concerns." 462 U.S. at 462 U. S. 430.
The required Pennsylvania reports, on the other hand, while claimed not to be "public," are available nonetheless to the public for copying. Moreover, there is no limitation on the use to which the Commonwealth or the public copiers may put them. The elements that proved persuasive for the ruling in Danforth are absent here. The decision to terminate a pregnancy is an intensely private one that must be protected in a way that assures anonymity. JUSTICE STEVENS, in his opinion concurring in the judgment in Bellotti v. Baird, 443 U. S. 622 (1979), aptly observed:
"It is inherent in the right to make the abortion decision that the right may be exercised without public scrutiny and in defiance of the contrary opinion of the sovereign or other third parties."
Id. at 443 U. S. 655.
A woman and her physician will necessarily be more reluctant to choose an abortion if there exists a possibility that her decision and her identity will become known publicly. Although the statute does not specifically require the reporting
of the woman's name, the amount of information about her and the circumstances under which she had an abortion are so detailed that identification is likely. Identification is the obvious purpose of these extreme reporting requirements. [Footnote 12] The "impermissible limits" that Danforth mentioned and that Missouri approached, see 428 U.S. at 428 U. S. 81, have been exceeded here.
We note, as we reach this conclusion, that the Court consistently has refused to allow government to chill the exercise of constitutional rights by requiring disclosure of protected, but sometimes unpopular, activities. See, e.g., Lamont v. Postmaster General, 381 U. S. 301 (1965) (invalidating Post Office requirement that addressee affirmatively request delivery of "communist" materials in order to receive them); Talley v. California, 362 U. S. 60, 362 U. S. 64-65 (1960) (striking down municipal ban on unsigned handbills); NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 357 U. S. 462-465 (1958) (invalidating compelled disclosure of NAACP membership list). Pennsylvania's reporting requirements raise the specter of public exposure and harassment of women who choose to exercise their personal, intensely private, right, with their physician, to end a pregnancy. Thus, they pose an unacceptable
danger of deterring the exercise of that right, and must be invalidated.
3. Section 3210(b) (degree of care for postviability abortions) and § 3210(c) (second physician requirement when the fetus is possibly viable). Section 3210(b) [Footnote 13] sets forth two independent requirements for a postviability abortion. First, it demands the exercise of that degree of care
"which such person would be required to exercise in order to preserve the life and health of any unborn child intended to be born and not aborted."
Second, "the abortion technique employed shall be that which would provide the best opportunity for the unborn child to be aborted alive unless," in the physician's good faith judgment, that technique "would present a significantly greater medical risk to the life or health of the pregnant woman." An intentional, knowing, or reckless violation of this standard is a felony of the third degree, and subjects the violator to the possibility of imprisonment for not more than seven years and to a fine of not more than $15,000. See 18 Pa.Cons.Stat. §§ 1101(2) and 1103(3) (1982).
The Court of Appeals ruled that § 3210(b) was unconstitutional because it required a "trade-off " between the woman's health and fetal survival, and failed to require that maternal
health be the physician's paramount consideration. 737 F.2d 300, citing Colautti v. Franklin, 439 U. S. 379, 439 U. S. 397-401 (1979) (where Pennsylvania's 1974 Abortion Control Act was reviewed). In Colautti, this Court recognized the undesirability of any "trade-off' between the woman's health and additional percentage points of fetal survival." Id. at 439 U. S. 400.
Appellants do not take any real issue with this proposition. See Brief for Appellants 84-86. They argue instead, as did the District Court, see 552 F.Supp. at 806-807, that the statute's words "significantly greater medical risk" for the life or health of the woman do not mean some additional risk (in which case unconstitutionality apparently is conceded), but only a "meaningfully increased" risk. That interpretation, said the District Court, renders the statute constitutional. Id. at 807. The Court of Appeals disagreed, pointing out that such a reading is inconsistent with the statutory language and with the legislative intent reflected in that language; that the adverb "significantly" modifies the risk imposed on the woman; that the adverb is "patently not surplusage"; and that the language of the statute "is not susceptible to a construction that does not require the mother to bear an increased medical risk in order to save her viable fetus." 737 F.2d 300. We agree with the Court of Appeals, and therefore find the statute to be facially invalid. [Footnote 14]
Section 3210(c) [Footnote 15] requires that a second physician be present during an abortion performed when viability is possible.
The second physician is to
"take control of the child and . . . provide immediate medical care for the child, taking all reasonable steps necessary, in his judgment, to preserve the child's life and health."
Violation of this requirement is a felony of the third degree.
In Planned Parenthood Assn. of Kansas City, Missouri, Inc. v. Ashcroft, 462 U. S. 476 (1983), the Court, by a 5-4 vote, but not by a controlling single opinion, ruled that a Missouri statute requiring the presence of a second physician during an abortion performed after viability was constitutional. JUSTICE POWELL, joined by THE CHIEF JUSTICE, concluded that the State had a compelling interest in protecting the life of a viable fetus, and that the second physician's presence provided assurance that the State's interest was protected more fully than with only one physician in attendance. Id. at 462 U. S. 482-486. [Footnote 16] JUSTICE POWELL recognized that, to pass constitutional muster, the statute must contain an exception for the situation where the health of the mother was endangered by delay in the arrival of the second physician. Recognizing that there was "no clearly expressed exception" on the face of the Missouri statute for the emergency situation, JUSTICE POWELL found the exception implicit in the statutory requirement that action be taken to preserve the fetus "provided it does not pose an increased risk to the life or health of the woman." Id. at 462 U. S. 485, n. 8.
Like the Missouri statute, § 3210(c) of the Pennsylvania statute contains no express exception for an emergency situation. While the Missouri statute, in the view of JUSTICE POWELL, was worded sufficiently to imply an emergency exception, Pennsylvania's statute contains no such comforting or
helpful language, and evinces no intent to protect a woman whose life may be at risk. Section 3210(a) [Footnote 17] provides only a defense to criminal liability for a physician who concluded, in good faith, that a fetus was nonviable "or that the abortion was necessary to preserve maternal life or health." It does not relate to the second physician requirement, and its words are not words of emergency.
It is clear that the Pennsylvania Legislature knows how to provide a medical emergency exception when it chooses to do so. It defined "[m]edical emergency" in general terms in § 3203, and it specifically provided a medical emergency exception with respect to informational requirements, § 3205(b); for parental consent, § 3205; for post-first-trimester hospitalization, § 3209; and for a public official's issuance of an order for an abortion without the express voluntary consent of the woman, § 3215(f). We necessarily conclude that the legislature's failure to provide a medical emergency exception in § 3210(c) was intentional. All the factors are here for chilling the performance of a late abortion, which, more than one performed at an earlier date, perhaps tends to be under emergency conditions.
V
Constitutional rights do not always have easily ascertainable boundaries, and controversy over the meaning of our Nation's most majestic guarantees frequently has been turbulent. As judges, however, we are sworn to uphold the law even when its content gives rise to bitter dispute. See Cooper v. Aaron, 358 U. S. 1 (1958). We recognized at the very
beginning of our opinion in Roe, 410 U.S. at 410 U. S. 116, that abortion raises moral and spiritual questions over which honorable persons can disagree sincerely and profoundly. But those disagreements did not then and do not now relieve us of our duty to apply the Constitution faithfully.
Our cases long have recognized that the Constitution embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government. See, e.g., Carey v. Population Services International, 431 U. S. 678 (1977); Moore v. East Cleveland, 431 U. S. 494 (1977); Eisenstadt v. Baird, 405 U. S. 438 (1972); Griswold v. Connecticut, 381 U. S. 479 (1965); Pierce v. Society of Sisters, 268 U. S. 510 (1925); Meyer v. Nebraska, 262 U. S. 390 (1923). See also Whalen v. Roe, 429 U. S. 589, 429 U. S. 598-600 (1977). That promise extends to women as well as to men. Few decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman's decision -- with the guidance of her physician and within the limits specified in Roe -- whether to end her pregnancy. A woman's right to make that choice freely is fundamental. Any other result, in our view, would protect inadequately a central part of the sphere of liberty that our law guarantees equally to all.
The Court of Appeals correctly invalidated the specified provisions of Pennsylvania's 1982 Abortion Control Act. Its judgment is affirmed.
It is so ordered.
The District Court had held invalid and had enjoined preliminarily only the requirement of § 3205(a)(2) that at least 24 hours must elapse between a woman's receipt of specified information and the performance of her abortion. 552 F.Supp. 791, 797-798, 811 (ED Pa.1982).
The Court of Appeals also held § 3215(e) invalid. That section requires health care insurers to make available, at a lesser premium, policies expressly excluding coverage "for abortion services not necessary to avert the death of the woman or to terminate pregnancies caused by rape or incest." This ruling on § 3215(e) is not before us.
A "tough-guy competition" is a physical contact bout between persons who lack professional experience and who attempt to render each other unconscious. See Note, 87 Dick.L.Rev. 373, 382, n. 84 (1983).
Section 1254 reads in pertinent part:
"Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods:"
"* * * *"
"(2) By appeal by a party relying on a State statute held by a court of appeals to be invalid as repugnant to the Constitution, treaties or laws of the United States. . . ."
Appellants ask that Slaker be overruled. See Brief for Appellants 10, 22-25.
We continue, however, to refer to the parties as appellants and appellees, respectively.
This principle finds an analogy in an established doctrine of administrative law. In SEC v. Chenery Corp., 318 U. S. 80 (1943), the Court ruled that a reviewing court could not affirm an agency on a principle the agency might not embrace. But the ruling in Chenery has not required courts to remand in futility. See Illinois v. ICC, 722 F.2d 1341, 1348-1349 (CA7 1983); see also Friendly, Chenery Revisited: Reflections on Reversal and Remand of Administrative Orders, 1969 Duke L.J.199.
A different situation is presented, of course, when there is no disagreement as to the law, but the probability of success on the merits depends on facts that are likely to emerge at trial. See Delaware & Hudson R. Co. v. United Transportation Union, 146 U.S.App.D.C. 142, 159, 450 F.2d 603, 620, cert. denied, 403 U.S. 911 (1971). See also Airco, Inc. v. Energy Research & Development Admin., 528 F.2d 1294, 1296 (CA7 1975); California ex rel. Younger v. Tahoe Regional Planning Agency, 516 F.2d 215, 217 (CA9), cert. denied, 423 U.S. 868 (1975); Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 10, 458 F.2d 827, 832 (1972); Benda v. Grand Lodge, 584 F.2d 308, 314 (CA9 1978), cert. dism'd, 441 U.S. 937 (1979); FTC v. Southwest Sunsites, Inc., 665 F.2d 711, 717 (CA5), cert. denied, 456 U.S. 973 (1982).
Not before us are: § 3203 (definition of "abortion"); § 3205 (24-hour waiting period and physician-only counseling); §§ 3207(b) and 3214(f) (public disclosure of reports); § 3209 (requirement of hospitalization for an abortion subsequent to the first trimester); § 3210(a) (penalties for abortion after viability, and the "complete defense" thereto); § 3215(c) (proscription of use of public funds for abortion services); and § 3215(e) (compulsory availability of insurance excluding certain abortion services).
Remanded for record development or otherwise not invalidated, and therefore not before us, are: § 3206 (parental consent -- operation of statute enjoined until promulgation of rules by the Supreme Court of Pennsylvania assuring confidentiality and promptness of disposition); § 3207(b) (abortion facilities and reports from them for public disclosure); and §§ 3214(c), (d), (f), and (g) (other reporting requirements -- challenges either not made or withdrawn).
On June 17, 1985, the District Court, after hearing, preliminarily enjoined the enforcement of §§ 3207(b) and 3214(f). 613 F.Supp. 656 (ED Pa.). See n 12, infra.
The Supreme Court of Pennsylvania issued the suggested rules, mentioned above, on November 26, 1984, after the appeal in this case was docketed here. See Pennsylvania Orphans' Court Rules 16.1 to 16.8, reprinted in Pa.Stat.Ann., Tit. 20, pp. 65, 66 (Purdon Supp. to §§ 101-2507, 1986-1987). Appellants thereupon filed a motion with the District Court that the injunction against enforcement of § 3205 be vacated. App. 53a. That court, however, denied the motion, concluding that it had no jurisdiction "to issue the order [appellants] seek" while the case was on appeal here. Id. at 57a, 61a. We decline appellants' suggestion that we now examine this feature of the case in the light of the new rules, for we conclude that this development should be considered by the District Court in the first instance.
Following this Court's lead in Akron, federal courts consistently have stricken fetal description requirements because of their inflammatory impact. See, e.g., Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d 1006, 1021-1022 (CA1 1981); Charles v. Carey, 627 F.2d 772, 784 (CA7 1980); Planned Parenthood Assn. of Kansas City v. Ashcroft, 655 F.2d 848, 868 (CA8 1981); Women's Medical Center of Providence, Inc. v. Roberts, 530 F.Supp. 1136, 1152-1154 (RI 1982).
In their argument against this conclusion, appellants claim that the informational requirements must be held constitutional in the light of this Court's summary affirmance in Franklin v. Fitzpatrick, 428 U.S. 901 (1976), of the judgment in Planned Parenthood Assn. v. Fitzpatrick, 401 F.Supp. 554 (ED Pa.1975). That litigation concerned the Commonwealth's 1974 Abortion Control Act. Its informed consent provision, however, did not contain such plainly unconstitutional informational requests as those in the current Act, or any physician-only counseling or 24-hour waiting-period requirements. The summary affirmance also preceded the decision in Akron and, to the extent, if any at all, it might be considered to be inconsistent with Akron, the latter, of course, controls.
Appellees advise us, see Brief for Appellees 38-39, that they sought in the District Court a preliminary injunction against the requirement that the facility identification report and the quarterly statistical report be made available for public inspection and copying, and that, on June 17, 1985, after full hearing, the District Court entered a preliminary injunction against the enforcement of these public disclosure requirements. Appellees assert that the record of that hearing shows a continuous pattern of violence and harassment directed against the patients and staff of abortion clinics; that the District Court concluded that this would be increased by the public disclosure of facility names and quarterly statistical reports; and that public disclosure would impose a burden on the woman's right to an abortion by heightening her fear and anxiety, and by discouraging her physician from offering an abortion because, by so doing, he would avoid pressure from anti-abortion forces. That record, of course, is not now before us. We need place no reliance upon it, and we draw no conclusion from it.
Section 3210(b) reads:
"Every person who performs or induces an abortion after an unborn child has been determined to be viable shall exercise that degree of professional skill, care and diligence which such person would be required to exercise in order to preserve the life and health of any unborn child intended to be born and not aborted and the abortion technique employed shall be that which would provide the best opportunity for the unborn child to be aborted alive unless, in the good faith judgment of the physician, that method or technique would present a significantly greater medical risk to the life or health of the pregnant woman than would another available method or technique and the physician reports the basis for his judgment. The potential psychological or emotional impact on the mother of the unborn child's survival shall not be deemed a medical risk to the mother. Any person who intentionally, knowingly or recklessly violates the provisions of this subsection commits a felony of the third degree."
This makes it unnecessary for us to consider appellees' further argument that § 3210(b) is void for vagueness.
Section 3210(c) reads:
"Any person who intends to perform an abortion the method chosen for which, in his good faith judgment, does not preclude the possibility of the child surviving the abortion, shall arrange for the attendance, in the same room in which the abortion is to be completed, of a second physician. Immediately after the complete expulsion or extraction of the child, the second physician shall take control of the child and shall provide immediate medical care for the child, taking all reasonable steps necessary, in his judgment, to preserve the child's life and health. Any person who intentionally, knowingly or recklessly violates the provisions of this subsection commits a felony of the third degree."
JUSTICE O'CONNOR, joined by JUSTICES WHITE and REHNQUIST, stated somewhat categorically that the second physician requirement was constitutional. 462 U.S. at 462 U. S. 505.
Section 3210(a) reads:
"Any person who intentionally, knowingly or recklessly performs or induces an abortion when the fetus is viable commits a felony of the third degree. It shall be a complete defense to any charge brought against a physician for violating the requirements of this section that he had concluded in good faith, in his best medical judgment, that the unborn child was not viable at the time the abortion was performed or induced or that the abortion was necessary to preserve maternal life or health."
JUSTICE STEVENS, concurring.
The scope of the individual interest in liberty that is given protection by the Due Process Clause of the Fourteenth Amendment is a matter about which conscientious judges have long disagreed. Although I believe that that interest is significantly broader than JUSTICE WHITE does, [Footnote 2/1] I have always
had the highest respect for his views on this subject. [Footnote 2/2] In this case, although our ultimate conclusions differ, it may be useful to emphasize some of our areas of agreement in order to ensure that the clarity of certain fundamental propositions not be obscured by his forceful rhetoric.
Let me begin with a reference to Griswold v. Connecticut, 381 U. S. 479 (1965), the case holding that a State may not totally forbid the use of birth control devices. Although the Court's opinion relied on a "right of marital privacy" within the "penumbra" of the Bill of Rights, id. at 381 U. S. 481-486, JUSTICE WHITE's concurring opinion went right to the heart of the issue. He wrote:
"It would be unduly repetitious, and belaboring the obvious, to expound on the impact of this statute on the liberty guaranteed by the Fourteenth Amendment against arbitrary or capricious denials or on the nature of this liberty. Suffice it to say that this is not the first time this Court has had occasion to articulate that the liberty entitled to protection under the Fourteenth Amendment includes the right 'to marry, establish a home and bring up children,' Meyer v. Nebraska, 262 U. S. 390, 262 U. S. 399, and 'the liberty . . . to direct the upbringing and education of children,' Pierce v. Society of Sisters, 268 U. S. 510, 268 U. S. 534-535, and that these are among 'the basic civil rights of man.' Skinner v. Oklahoma, 316 U. S. 535, 316 U. S. 541. These decisions affirm that there is a 'realm of family life which the state cannot enter' without substantial justification. Prince v. Massachusetts, 321 U. S. 158, 321 U. S. 166. Surely the right invoked in this case, to be free of regulation of the intimacies of the marriage relationship, 'come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.'
Kovacs v. Cooper, 336 U. S. 77, 336 U. S. 95 (opinion of Frankfurter, J.)."
Id. at 381 U. S. 502-503 (WHITE, J., concurring in the judgment). He concluded that the statute could not be constitutionally applied to married persons, explaining:
"I find nothing in this record justifying the sweeping scope of this statute, with its telling effect on the freedoms of married persons, and therefore conclude that it deprives such persons of liberty without due process of law."
Id. at 381 U. S. 507. That conclusion relied in part on the fact that the statute involved "sensitive areas of liberty" [Footnote 2/3] and in part on the absence of any colorable justification for applying the statute to married couples.
In Eisenstadt v. Baird, 405 U. S. 438 (1972), JUSTICE WHITE concluded that a similar Massachusetts statute was invalid as applied to a person whom the record did not identify as either married or unmarried, id. at 405 U. S. 464-465, and in Carey v. Population Services International, 431 U. S. 678 (1977), he subscribed to this explanation of the holdings in Griswold and Eisenstadt:
"The fatal fallacy in [the appellants'] argument is that it overlooks the underlying premise of those decisions that the Constitution protects 'the right of the individual
. . . to be free from unwarranted governmental intrusion into . . . the decision whether to bear or beget a child.' [Eisenstadt v. Baird, 405 U.S.] at 405 U. S. 453. Griswold did state that, by 'forbidding the use of contraceptives, rather than regulating their manufacture or sale,' the Connecticut statute there had 'a maximum destructive impact' on privacy rights. 381 U.S. at 381 U. S. 485. This intrusion into 'the sacred precincts of marital bedrooms' made that statute particularly 'repulsive.' Id. at 381 U. S. 485-486. But subsequent decisions have made clear that the constitutional protection of individual autonomy in matters of childbearing is not dependent on that element. Eisenstadt v. Baird, holding that the protection is not limited to married couples, characterized the protected right as the 'decision whether to bear or beget a child.' 405 U.S. at 405 U. S. 453 (emphasis added). Similarly, Roe v. Wade held that the Constitution protects 'a woman's decision whether or not to terminate her pregnancy.' 410 U.S. at 410 U. S. 153 (emphasis added). See also 429 U. S. 599-600, and n. 26. These decisions put Griswold in proper perspective. Griswold may no longer be read as holding only that a State may not prohibit a married couple's use of contraceptives. Read in light of its progeny, the teaching of Griswold@ is that the Constitution protects individual decisions in matters of childbearing from unjustified intrusion by the State."
431 U.S. at 431 U. S. 687; id. at 431 U. S. 702 (WHITE, J., concurring in pertinent part and concurring in result).
Thus, the aspect of liberty at stake in this case is the freedom from unwarranted governmental intrusion into individual decisions in matters of childbearing. As JUSTICE WHITE explained in Griswold, that aspect of liberty comes to this Court with a momentum for respect that is lacking when appeal is made to liberties which derive merely from shifting economic arrangements.
Like the birth control statutes involved in Griswold and Baird, the abortion statutes involved in Roe v. Wade, 410 U. S. 113 (1973), and in the case before us today apply equally to decisions made by married persons and by unmarried persons. Consistently with his views in those cases, JUSTICE WHITE agrees that "a woman's ability to choose an abortion is a species of liberty' that is subject to the general protections of the Due Process Clause." Post at 476 U. S. 790. His agreement with that "indisputable" proposition, ibid., is not qualified or limited to decisions made by pregnant women who are married and, indeed, it would be a strange form of liberty if it were so limited.
Up to this point in JUSTICE WHITE's analysis, his opinion is fully consistent with the accepted teachings of the Court and with the major premises of Roe v. Wade. For reasons that are not entirely clear, however, JUSTICE WHITE abruptly announces that the interest in "liberty" that is implicated by a decision not to bear a child that is made a few days after conception is less fundamental than a comparable decision made before conception. Post at 476 U. S. 791-792. There may, of course, be a significant difference in the strength of the countervailing state interest, but I fail to see how a decision on childbearing becomes less important the day after conception than the day before. Indeed, if one decision is more "fundamental" to the individual's freedom than the other, surely it is the postconception decision that is the more serious. Thus, it is difficult for me to understand how JUSTICE WHITE reaches the conclusion that restraints upon this aspect of a woman's liberty do not "call into play anything more than the most minimal judicial scrutiny." Post at 476 U. S. 790. [Footnote 2/4]
If JUSTICE WHITE were correct in regarding the postconception decision of the question whether to bear a child as a relatively unimportant, second-class sort of interest, I might agree with his view that the individual should be required to conform her decision to the will of the majority. But if that decision commands the respect that is traditionally associated with the "sensitive areas of liberty" protected by the Constitution, as JUSTICE WHITE characterized reproductive decisions in Griswold, 381 U.S. at 381 U. S. 503, no individual should be compelled to surrender the freedom to make that decision for herself simply because her "value preferences" are not shared by the majority. [Footnote 2/5] In a sense, the basic question is whether the "abortion decision" should be made by the individual or by the majority "in the unrestrained imposition
of its own, extraconstitutional value preferences." Post at 476 U. S. 794. But surely JUSTICE WHITE is quite wrong in suggesting that the Court is imposing value preferences on anyone else. Ibid. [Footnote 2/6]
JUSTICE WHITE is also surely wrong in suggesting that the governmental interest in protecting fetal life is equally compelling during the entire period from the moment of conception until the moment of birth. Post at 476 U. S. 795. Again, I recognize that a powerful theological argument can be made for that position, but I believe our jurisdiction is limited to the evaluation of secular state interests. [Footnote 2/7] I should think it obvious that the State's interest in the protection of an embryo -- even if that interest is defined as "protecting those who will be citizens," ibid. -- increases progressively and dramatically as the organism's capacity to feel pain, to experience pleasure, to survive, and to react to its surroundings increases day by day. The development of a fetus -- and pregnancy itself -- are not static conditions, and the assertion that the government's interest is static simply ignores this reality.
Nor is it an answer to argue that life itself is not a static condition, and that "there is no nonarbitrary line separating a fetus from a child, or indeed, an adult human being," post at 476 U. S. 792. For, unless the religious view that a fetus is a "person" is adopted -- a view JUSTICE WHITE refuses to embrace, ibid. -- there is a fundamental and well-recognized difference between a fetus and a human being; indeed, if there is not such a difference, the permissibility of terminating the life of a fetus could scarcely be left to the will of the state legislatures. [Footnote 2/8] And if distinctions may be drawn between a fetus and a human being in terms of the state interest in their protection -- even though the fetus represents one of "those who will be citizens" -- it seems to me quite odd to argue that distinctions may not also be drawn between the state interest in protecting the freshly fertilized egg and the state interest in protecting the 9-month-gestated, fully sentient fetus on the eve of birth. Recognition of this distinction is supported not only by logic, but also by history [Footnote 2/9] and by our shared experiences.
Turning to JUSTICE WHITE's comments on stare decisis, he is of course correct in pointing out that the Court
"has not hesitated to overrule decisions, or even whole lines of cases, where experience, scholarship, and reflection demonstrated that their fundamental premises were not to be found in the Constitution."
Post at 476 U. S. 787. But JUSTICE WHITE has not disavowed the "fundamental premises" on which the decision in Roe v. Wade rests. He has not disavowed the Court's prior approach to the interpretation of the word "liberty" or, more narrowly, the line of cases that culminated in the unequivocal holding, applied to unmarried persons and married persons alike, "that the Constitution protects individual decisions in matters of childbearing from unjustified intrusion by
the State." Carey, 431 U.S. at 431 U. S. 687; id. at 431 U. S. 702 (WHITE, J., concurring in pertinent part). [Footnote 2/10]
Nor does the fact that the doctrine of stare decisis is not an absolute bar to the reexamination of past interpretations of the Constitution mean that the values underlying that doctrine may be summarily put to one side. There is a strong public interest in stability, and in the orderly conduct of our
affairs, that is served by a consistent course of constitutional adjudication. Acceptance of the fundamental premises that underlie the decision in Roe v. Wade, as well as the application of those premises in that case, places the primary responsibility for decision in matters of childbearing squarely in the private sector of our society. [Footnote 2/11] The majority remains free to preach the evils of birth control and abortion and to persuade others to make correct decisions, while the individual faced with the reality of a difficult choice having serious and personal consequences of major importance to her own future -- perhaps to the salvation of her own immortal soul -- remains free to seek and to obtain sympathetic guidance from those who share her own value preferences.
In the final analysis, the holding in Roe v. Wade presumes that it is far better to permit some individuals to make incorrect decisions than to deny all individuals the right to make decisions that have a profound effect upon their destiny. Arguably a very primitive society would have been protected from evil by a rule against eating apples; a majority familiar with Adam's experience might favor such a rule. But the lawmakers who placed a special premium on the protection of
individual liberty have recognized that certain values are more important than the will of a transient majority. [Footnote 2/12]
Compare, e.g., his opinion for the Court in Meachum v. Fano, 427 U. S. 215 (1976), with my dissent in that case, id. at 427 U. S. 229.
See, e.g., Stevens, Judicial Restraint, 22 San Diego L.Rev. 437, 449-450 (1985).
"The nature of the right invaded is pertinent, to be sure, for statutes regulating sensitive areas of liberty do, under the cases of this Court, require 'strict scrutiny,' Skinner v. Oklahoma, 316 U. S. 535, 316 U. S. 541, and 'must be viewed in the light of less drastic means for achieving the same basic purpose.' Shelton v. Tucker, 364 U. S. 479, 364 U. S. 488."
"Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling."
"Bates v. Little Rock, 361 U. S. 516, 361 U. S. 524. See also McLaughlin v. Florida, 379 U. S. 184. But such statutes, if reasonably necessary for the effectuation of a legitimate and substantial state interest, and not arbitrary or capricious in application, are not invalid under the Due Process Clause. Zemel v. Rusk, 381 U. S. 1."
381 U.S. at 381 U. S. 503-504.
At times, JUSTICE WHITE's rhetoric conflicts with his own analysis. For instance, his emphasis on the lack of a decision by "the people . . . in 1787, 1791, 1868, or any time since," post at 476 U. S. 797, stands in sharp contrast to his earlier, forthright rejection of
"the simplistic view that constitutional interpretation can possibly be limited to 'the plain meaning' of the Constitution's text or to the subjective intention of the Framers."
Post at 476 U. S. 789. Similarly, his statement that an abortion decision should be subject to "the will of the people," post at 476 U. S. 796, does not take us very far in determining which people -- the majorities in state legislatures or the individuals confronted with unwanted pregnancies. In view of his agreement that the decision about abortion is "a species of liberty" protected by the Constitution, moreover, post at 476 U. S. 790, and in view of the fact that "liberty" plays a rather prominent role in our Constitution, his suggestion that the Court's evaluation of that interest represents the imposition of "extraconstitutional value preferences," post at 476 U. S. 794, seems to me inexplicable. This characterization of the Court's analysis as "extraconstitutional" also does not reflect JUSTICE WHITE's simultaneous recognition that
"[t]he Constitution . . . is a document announcing fundamental principles in value-laden terms that leave ample scope for the exercise of normative judgment by those charged with interpreting and applying it."
Post at 476 U. S. 789. Finally, I fail to see how the fact that "men and women of goodwill and high commitment to constitutional government," post at 476 U. S. 793, are on both sides of the abortion issue helps to resolve the difficult constitutional question before us; I take it that the disputants in most constitutional controversies in our free society can be similarly characterized.
"What a person is, what he wants, the determination of his life plan, of his concept of the good, are the most intimate expressions of self-determination, and, by asserting a person's responsibility for the results of this self-determination, we give substance to the concept of liberty."
C. Fried, Right and Wrong, 146-147 (1978). See also Fried, Correspondence, 6 Phil. & Pub.Aff. 288-289 (1977) (the concept of privacy embodies the "moral fact that a person belongs to himself, and not others nor to society as a whole").
JUSTICE WHITE's characterization of the governmental interest as "protecting those who will be citizens if their lives are not ended in the womb," post at 476 U. S. 795, reveals that his opinion may be influenced as much by his own value preferences as by his view about the proper allocation of decisionmaking responsibilities between the individual and the State. For if federal judges must allow the State to make the abortion decision, presumably the State is free to decide that a woman may never abort, may sometimes abort, or, as in the People's Republic of China, must always abort if her family is already too large. In contrast, our cases represent a consistent view that the individual is primarily responsible for reproductive decisions, whether the State seeks to prohibit reproduction, Skinner v. Oklahoma, 316 U. S. 535 (1942), or to require it, Roe v. Wade, 410 U. S. 113 (1973).
The responsibility for nurturing the soul of the newly born, as well as the unborn, rests with individual parents, not with the State. No matter how important a sacrament such as baptism may be, a State surely could not punish a mother for refusing to baptize her child.
No Member of this Court has ever suggested that a fetus is a "person" within the meaning of the Fourteenth Amendment.
See Roe v. Wade, supra, at 410 U. S. 129-147.
He has, however, suggested that the concept of "liberty" is limited by two basic "definitions" of the values at stake. Post at 476 U. S. 790-791. Like JUSTICE WHITE, I share Justice Harlan's concern about "judges . . . roaming at large in the constitutional field." Ibid.; see also Stevens, 22 San Diego L.Rev. at 449-450. But I am convinced that JUSTICE WHITE's use of "definitions" is an inadequate substitute for the difficult process of analysis and judgment that the guarantee of liberty requires, a process nowhere better expressed than by Justice Harlan:
"Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that, through the course of this Court's decisions, it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has, of necessity, been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed, as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint."
"* * * *"
"Each new claim to Constitutional protection must be considered against a background of Constitutional purposes, as they have been rationally perceived and historically developed. Though we exercise limited and sharply restrained judgment, yet there is no 'mechanical yardstick,' no 'mechanical answer.' The decision of an apparently novel claim must depend on grounds which follow closely on well-accepted principles and criteria. The new decision must take 'its place in relation to what went before and further [cut] a channel for what is to come.' Irvine v. California, 347 U. S. 128, 347 U. S. 147 (dissenting opinion)."
Poe v. Ullman, 367 U. S. 497, 367 U. S. 542-544 (1961) (Harlan, J., dissenting).
"These cases do not deal with the individual's interest in protection from unwarranted public attention, comment, or exploitation. They deal, rather, with the individual's right to make certain unusually important decisions that will affect his own, or his family's, destiny. The Court has referred to such decisions as implicating 'basic values,' as being 'fundamental,' and as being dignified by history and tradition. The character of the Court's language in these cases brings to mind the origins of the American heritage of freedom -- the abiding interest in individual liberty that makes certain state intrusions on the citizen's right to decide how he will live his own life intolerable. Guided by history, our tradition of respect for the dignity of individual choice in matters of conscience and the restraints implicit in the federal system, federal judges have accepted the responsibility for recognition and protection of these rights in appropriate cases."
Fitzgerald v. Porter Memorial Hospital, 523 F.2d 716, 719-720 (CA7 1975) (footnotes omitted), cert. denied, 425 U.S. 916 (1976).
"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."
West Virginia Board of Education v. Barnette, 319 U. S. 624, 319 U. S. 638 (1943).
CHIEF JUSTICE BURGER, dissenting.
I agree with much of JUSTICE WHITE's and JUSTICE O'CONNOR's dissents. In my concurrence in the companion case to Roe v. Wade, 410 U. S. 113, in 1973, I noted:
"I do not read the Court's holdings today as having the sweeping consequences attributed to them by the dissenting Justices; the dissenting views discount the reality that the vast majority of physicians observe the standards of their profession, and act only on the basis of carefully deliberated medical judgments relating to life and health. Plainly, the Court today rejects any claim that the Constitution requires abortions on demand."
Doe v. Bolton, 410 U. S. 179, 410 U. S. 208 (1973). Later, in Maher v. Roe, 432 U. S. 464, 432 U. S. 481 (1977), I stated my view that
"[t]he Court's holdings in Roe . . . and Doe v. Bolton . . . simply require that a State not create an absolute barrier to a woman's decision to have an abortion."
I based my concurring statements in Roe and Maher on the principle expressed in the Court's opinion in Roe that the right to an abortion "is not unqualified, and must be considered against important state interests in regulation." 410 U.S. at 410 U. S. 154-155. In short, every Member of the Roe Court rejected the idea of abortion on demand. The Court's opinion today, however, plainly undermines that important
principle, and I regretfully conclude that some of the concerns of the dissenting Justices in Roe, as well as the concerns I expressed in my separate opinion, have now been realized.
The extent to which the Court has departed from the limitations expressed in Roe is readily apparent. In Roe, the Court emphasized
"that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman. . . ."
Id. at 410 U. S. 162. Yet today the Court astonishingly goes so far as to say that the State may not even require that a woman contemplating an abortion be provided with accurate medical information concerning the risks inherent in the medical procedure which she is about to undergo and the availability of state-funded alternatives if she elects not to run those risks. Can anyone doubt that the State could impose a similar requirement with respect to other medical procedures? Can anyone doubt that doctors routinely give similar information concerning risks in countless procedures having far less impact on life and health, both physical and emotional than an abortion, and risk a malpractice lawsuit if they fail to do so?
Yet the Court concludes that the State cannot impose this simple information-dispensing requirement in the abortion context where the decision is fraught with serious physical, psychological, and moral concerns of the highest order. Can it possibly be that the Court is saying that the Constitution forbids the communication of such critical information to a woman? * We have apparently already passed the point at
which abortion is available merely on demand. If the statute at issue here is to be invalidated, the "demand" will not even have to be the result of an informed choice.
The Court in Roe further recognized that the State "has still another important and legitimate interest" which is "separate and distinct" from the interest in protecting maternal health, i.e., an interest in "protecting the potentiality of human life." Ibid. The point at which these interests become "compelling" under Roe is at viability of the fetus. Id. at 410 U. S. 163. Today, however, the Court abandons that standard and renders the solemnly stated concerns of the 1973 Roe opinion for the interests of the states mere shallow rhetoric. The statute at issue in this case requires that a second physician be present during an abortion performed after viability, so that the second physician can
"take control of the child and . . . provide immediate medical care . . . taking all reasonable steps necessary, in his judgment, to preserve the child's life and health."
18 Pa.Cons.Stat. § 3210(c) (1982).
Essentially this provision simply states that a viable fetus is to be cared for, not destroyed. No governmental power exists to say that a viable fetus should not have every protection required to preserve its life. Undoubtedly the Pennsylvania Legislature added the second physician requirement on the mistaken assumption that this Court meant what it said in Roe concerning the "compelling interest" of the states in potential life after viability.
The Court's opinion today is but the most recent indication of the distance traveled since Roe. Perhaps the first important roadmarker was the Court's holding in Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52 (1976), in which the Court held (over the dissent of JUSTICE WHITE,
joined by JUSTICE REHNQUIST and myself) that the State may not require that minors seeking an abortion first obtain parental consent. Parents, not judges or social workers, have the inherent right and responsibility to advise their children in matters of this sensitivity and consequence. Can one imagine a surgeon performing an amputation or even an appendectomy on a 14-year-old girl without the consent of a parent or guardian except in an emergency situation?
Yet today the Court goes beyond Danforth by remanding for further consideration of the provisions of Pennsylvania's statute requiring that a minor seeking an abortion without parental consent petition the appropriate court for authorization. Even if I were to agree that the Constitution requires that the states may not provide that a minor receive parental consent before undergoing an abortion, I would certainly hold that judicial approval may be required. This is in keeping with the longstanding common law principle that courts may function in loco parentis when parents are unavailable or neglectful, even though courts are not very satisfactory substitutes when the issue is whether a 12-, 14-, or 16-year-old unmarried girl should have an abortion. In my view, no remand is necessary on this point, because the statutory provision in question is constitutional.
In discovering constitutional infirmities in state regulations of abortion that are in accord with our history and tradition, we may have lured judges into "roaming at large in the constitutional field." Griswold v. Connecticut, 381 U. S. 479, 381 U. S. 502 (1965) (Harlan, J., concurring). The soundness of our holdings must be tested by the decisions that purport to follow them. If Danforth and today's holding really mean what they seem to say, I agree we should reexamine Roe.
* The Court's astounding rationale for this holding is that such information might have the effect of "discouraging abortion," ante at 476 U. S. 762, as though abortion is something to be advocated and encouraged. This is at odds not only with Roe, but with our subsequent abortion decisions as well. As I stated in my opinion for the Court in H. L. v. Matheson, 450 U. S. 398 (1981), upholding a Utah statute requiring that a doctor notify the parents of a minor seeking an abortion:
"The 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.'"
Id. at 450 U. S. 413 (quoting Hams v. McRae, 448 U. S. 297, 448 U. S. 325 (1980)).
JUSTICE WHITE, with whom JUSTICE REHNQUIST joins, dissenting.
Today the Court carries forward the "difficult and continuing venture in substantive due process," Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52 (1976)
(WHITE, J., dissenting), that began with the decision in Roe v. Wade, 410 U. S. 113 (1973), and has led the Court further and further afield in the 13 years since that decision was handed down. I was in dissent in Roe v. Wade, and am in dissent today. In Part I below, I state why I continue to believe that this venture has been fundamentally misguided since its inception. In 476 U. S. I submit that, even accepting Roe v. Wade, the concerns underlying that decision by no means command or justify the results reached today. Indeed, in my view, our precedents in this area, applied in a manner consistent with sound principles of constitutional adjudication, require reversal of the Court of Appeals on the ground that the provisions before us are facially constitutional. [Footnote 3/1]
I
The rule of stare decisis is essential if case-by-case judicial decisionmaking is to be reconciled with the principle of the
rule of law, for when governing legal standards are open to revision in every case, deciding cases becomes a mere exercise of judicial will, with arbitrary and unpredictable results. But stare decisis is not the only constraint upon judicial decisionmaking. Cases -- like this one -- that involve our assumed power to set aside on grounds of unconstitutionality a state or federal statute representing the democratically expressed will of the people call other considerations into play. Because the Constitution itself is ordained and established by the people of the United States, constitutional adjudication by this Court does not, in theory at any rate, frustrate the authority of the people to govern themselves through institutions of their own devising and in accordance with principles of their own choosing. But decisions that find in the Constitution principles or values that cannot fairly be read into that document usurp the people's authority, for such decisions represent choices that the people have never made, and that they cannot disavow through corrective legislation. For this reason, it is essential that this Court maintain the power to restore authority to its proper possessors by correcting constitutional decisions that, on reconsideration, are found to be mistaken.
The Court has therefore adhered to the rule that stare decisis is not rigidly applied in cases involving constitutional issues, see Glidden Co. v. Zdanok, 370 U. S. 530, 370 U. S. 543 (1962) (opinion of Harlan, J.), and has not hesitated to overrule decisions, or even whole lines of cases, where experience, scholarship, and reflection demonstrated that their fundamental premises were not to be found in the Constitution. Stare decisis did not stand in the way of the Justices who, in the late 1930's, swept away constitutional doctrines that had placed unwarranted restrictions on the power of the State and Federal Governments to enact social and economic legislation, see United States v. Darby, 312 U. S. 100 (1941); West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937). Nor did stare decisis deter a different set of Justices, some 15 years
later, from rejecting the theretofore prevailing view that the Fourteenth Amendment permitted the States to maintain the system of racial segregation. Brown v. Board of Education, 347 U. S. 483 (1954). In both instances, history has been far kinder to those who departed from precedent than to those who would have blindly followed the rule of stare decisis. And only last Term, the author of today's majority opinion reminded us once again that "when it has become apparent that a prior decision has departed from a proper understanding" of the Constitution, that decision must be overruled. Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 557 (1985).
In my view, the time has come to recognize that Roe v. Wade, no less than the cases overruled by the Court in the decisions I have just cited, "departs from a proper understanding" of the Constitution, and to overrule it. I do not claim that the arguments in support of this proposition are new ones, or that they were not considered by the Court in Roe or in the cases that succeeded it. Cf. Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 462 U. S. 419-420 (1983). But if an argument that a constitutional decision is erroneous must be novel in order to justify overruling that precedent, the Court's decisions in Lochner v. New York, 198 U. S. 45 (1905), and Plessy v. Ferguson, 163 U. S. 537 (1896), would remain the law, for the doctrines announced in those decisions were nowhere more eloquently or incisively criticized than in the dissenting opinions of Justices Holmes (in Lochner) and Harlan (in both cases). That the flaws in an opinion were evident at the time it was handed down is hardly a reason for adhering to it.
A
Roe v. Wade posits that a woman has a fundamental right to terminate her pregnancy, and that this right may be restricted only in the service of two compelling state interests: the interest in maternal health (which becomes compelling
only at the stage in pregnancy at which an abortion becomes more hazardous than carrying the pregnancy to term) and the interest in protecting the life of the fetus (which becomes compelling only at the point of viability). A reader of the Constitution might be surprised to find that it encompassed these detailed rules, for the text obviously contains no references to abortion, nor, indeed, to pregnancy or reproduction generally; and, of course, it is highly doubtful that the authors of any of the provisions of the Constitution believed that they were giving protection to abortion. As its prior cases clearly show, however, this Court does not subscribe to the simplistic view that constitutional interpretation can possibly be limited to the "plain meaning" of the Constitution's text, or to the subjective intention of the Framers. The Constitution is not a deed setting forth the precise metes and bounds of its subject matter; rather, it is a document announcing fundamental principles in value-laden terms that leave ample scope for the exercise of normative judgment by those charged with interpreting and applying it. In particular, the Due Process Clause of the Fourteenth Amendment, which forbids the deprivation of "life, liberty, or property without due process of law," has been read by the majority of the Court to be broad enough to provide substantive protection against state infringement of a broad range of individual interests. See Moore v. East Cleveland, 431 U. S. 494, 431 U. S. 541-552 (1977) (WHITE, J., dissenting).
In most instances, the substantive protection afforded the liberty or property of an individual by the Fourteenth Amendment is extremely limited: state action impinging on individual interests need only be rational to survive scrutiny under the Due Process Clause, and the determination of rationality is to be made with a heavy dose of deference to the policy choices of the legislature. Only "fundamental" rights are entitled to the added protection provided by strict judicial scrutiny of legislation that impinges upon them. See id. at 431 U. S. 499 (opinion of POWELL, J.); id. at 431 U. S. 537 (Stewart, J., joined by
REHNQUIST, J., dissenting); id. at 431 U. S. 547-549 (WHITE, J., dissenting). I can certainly agree with the proposition -- which I deem indisputable -- that a woman's ability to choose an abortion is a species of "liberty" that is subject to the general protections of the Due Process Clause. I cannot agree, however, that this liberty is so "fundamental" that restrictions upon it call into play anything more than the most minimal judicial scrutiny.
Fundamental liberties and interests are most clearly present when the Constitution provides specific textual recognition of their existence and importance. Thus, the Court is on relatively firm ground when it deems certain of the liberties set forth in the Bill of Rights to be fundamental, and therefore finds them incorporated in the Fourteenth Amendment's guarantee that no State may deprive any person of liberty without due process of law. When the Court ventures further and defines as "fundamental" liberties that are nowhere mentioned in the Constitution (or that are present only in the so-called "penumbras" of specifically enumerated rights), it must, of necessity, act with more caution, lest it open itself to the accusation that, in the name of identifying constitutional principles to which the people have consented in framing their Constitution, the Court has done nothing more than impose its own controversial choices of value upon the people.
Attempts to articulate the constraints that must operate upon the Court when it employs the Due Process Clause to protect liberties not specifically enumerated in the text of the Constitution have produced varying definitions of "fundamental liberties." One approach has been to limit the class of fundamental liberties to those interests that are "implicit in the concept of ordered liberty" such that "neither liberty nor justice would exist if [they] were sacrificed." Palko v. Connecticut, 302 U. S. 319, 302 U. S. 325, 302 U. S. 326 (1937); see Moore v. East Cleveland, 431 U.S. at