An Akron, Ohio, ordinance,
inter alia, (1) requires all
abortions performed after the first trimester of pregnancy to be
performed in a hospital (§ 1870.03); (2) prohibits a physician from
performing an abortion on an unmarried minor under the age of 15
unless he obtains the consent of one of her parents or unless the
minor obtains an order from a court having jurisdiction over her
that the abortion be performed (§ 1870.05(B)); (3) requires that
the attending physician inform his patient of the status of her
pregnancy, the development of her fetus, the date of possible
viability, the physical and emotional complications that may result
from an abortion, and the availability of agencies to provide her
with assistance and information with respect to birth control,
adoption, and childbirth (§ 1870.06(B)), and also inform her of the
particular risks associated with her pregnancy and the abortion
technique to be employed (§ 1870.06(C)); (4) prohibits a physician
from performing an abortion until 24 hours after the pregnant woman
signs a consent form (§ 1870.07); and (5) requires physicians
performing abortions to ensure that fetal remains are disposed of
in a "humane and sanitary manner" (§ 1870.16). A violation of the
ordinance is punishable as a misdemeanor. Respondents and
cross-petitioners filed an action in Federal District Court against
petitioners and cross-respondents, challenging the ordinance. The
District Court invalidated § 1870.05(B), § 1870.06(B), and §
1870.16, but upheld § 1870.03, § 1870.06(C), and § 1870.07. The
Court of Appeals affirmed as to § 1870.03, § 1870.05(B), §
1870.06(B), and § 1870.16, but reversed as to § 1870.06(C) and §
1870.07.
Held:
1. Section 1870.03 is unconstitutional. Pp.
462 U. S.
431-439.
(a) While a State's interest in health regulation becomes
compelling at approximately the end of the first trimester, the
State's regulation may be upheld only if it is reasonably designed
to further that interest. If, during a substantial portion of the
second trimester, the State's regulation
Page 462 U. S. 417
departs from accepted medical practice, it may not be upheld
simply because it may be reasonable for the remaining portion of
the trimester. Rather, the State is obligated to make a reasonable
effort to limit the effect of its regulations to the period in the
trimester during which its health interest may be furthered. Pp.
462 U. S.
433-434.
(b) It cannot be said that the lines drawn in § 1870.03 are
reasonable. By preventing the performance of
dilatation-and-evacuation abortions in an appropriate nonhospital
setting, Akron has imposed a heavy and unnecessary burden on
women's access to a relatively inexpensive, otherwise accessible,
and safe abortion procedure. Section 1870.03 has the effect of
inhibiting the vast majority of abortions after the first
trimester, and therefore unreasonably infringes upon a woman's
constitutional right to obtain an abortion. Pp.
462 U. S.
434-439.
2. Section 1870.05(B) is unconstitutional as making a blanket
determination that
all minors under the age of 15 are too
immature to make an abortion decision, or that an abortion never
may be in the minor's best interests without parental approval.
Under circumstances where the Ohio statute governing juvenile
proceedings does not mention minors' abortions nor suggest that the
Ohio Juvenile Court has authority to inquire into a minor's
maturity or emancipation, § 1870.05(B), as applied in juvenile
proceedings, is not reasonably susceptible of being construed to
create an opportunity for case-by-case evaluations of the maturity
of pregnant minors. Pp.
462 U. S.
439-442.
3. Sections § 1870.06(B) and § 1870.06(C) are unconstitutional.
Pp.
462 U. S.
442-449.
(a) The validity of an informed consent requirement rests on the
State's interest in protecting the pregnant woman's health. But
this does not mean that a State has unreviewable authority to
decide what information a woman must be given before she chooses to
have an abortion. A State may not adopt regulations designed to
influence the woman's informed choice between abortion or
childbirth. Pp.
462 U. S.
442-444.
(b) Section 1870.06(B) attempts to extend the State's interest
in ensuring "informed consent" beyond permissible limits, and
intrudes upon the discretion of the pregnant woman's physician.
While a State may require a physician to make certain that his
patient understands the physical and emotional implications of
having an abortion, § 1870.06(B) goes far beyond merely describing
the general subject matter relevant to informed consent. By
insisting upon recitation of a lengthy and inflexible list of
information, the section unreasonably has placed obstacles in the
path of the physician. Pp.
462 U. S. 444-445.
(c) With respect to § 1870.06(C)'s requirement that the
"attending physician" must inform the woman of the specified
information, it is unreasonable for a State to insist that only a
physician is competent to
Page 462 U. S. 418
provide the information and counseling relevant to informed
consent. Pp.
462 U. S.
446-449.
4. Section 1870.07 is unconstitutional. Akron has failed to
demonstrate that any legitimate state interest is furthered by an
arbitrary and inflexible waiting period. There is no evidence that
the abortion procedure will be performed more safely. Nor does it
appear that the State's legitimate concern that the woman's
decision be informed is reasonably served by requiring a 24-hour
delay as a matter of course. Pp.
462 U. S.
449-451.
5. Section 1870.16 violates the Due Process Clause by failing to
give a physician fair notice that his contemplated conduct is
forbidden. Pp.
462 U. S.
451-452.
651 F.2d 1198, affirmed in part and reversed in part.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined.
O'CONNOR, J., filed a dissenting opinion, in which WHITE and
REHNQUIST, JJ., joined,
post, p.
462 U.S. 452.
Page 462 U. S. 419
JUSTICE POWELL delivered the opinion of the Court.
In this litigation, we must decide the constitutionality of
several provisions of an ordinance enacted by the city of Akron,
Ohio, to regulate the performance of abortions. Today we also
review abortion regulations enacted by the State of Missouri,
see Planned Parenthood Assn. of Kansas City, Mo., Inc. v.
Ashcroft, post, p.
462 U. S. 476, and
by the State of Virginia,
see Simopoulos v. Virginia,
post, p.
462 U. S. 506.
These cases come to us a decade after we held in
Roe v.
Wade, 410 U. S. 113
(1973), that the right of privacy, grounded in the concept of
personal liberty guaranteed by the Constitution, encompasses a
woman's right to decide whether to terminate her pregnancy.
Legislative responses to the Court's decision have required us on
several occasions, and again today, to define the limits of a
State's authority to regulate the performance of abortions. And
arguments continue to be made, in these cases as well, that we
erred in interpreting the Constitution. Nonetheless, the doctrine
of
Page 462 U. S. 420
stare decisis, while perhaps never entirely persuasive
on a constitutional question, is a doctrine that demands respect in
a society governed by the rule of law. [
Footnote 1] We respect it today, and reaffirm
Roe v.
Wade.
Page 462 U. S. 421
I
In February, 1978, the City Council of Akron enacted Ordinance
No. 160-1978, entitled "Regulation of Abortions." [
Footnote 2]
Page 462 U. S. 422
The ordinance sets forth 17 provisions that regulate the
performance of abortions,
see Akron Codified Ordinances
ch. § 1870, 5 of which are at issue in this case:
"(i) Section 1870.03 requires that all abortions performed after
the first trimester of pregnancy be performed in a hospital.
[
Footnote 3]"
"(ii) Section 1870.05 sets forth requirements for notification
of and consent by parents before abortions may be performed on
unmarried minors. [
Footnote 4]
"
Page 462 U. S. 423
"(iii) Section 1870.06 requires that the attending physician
make certain specified statements to the patient 'to insure that
the consent for an abortion is truly informed consent.' [
Footnote 5] "
Page 462 U. S. 424
(iv) Section 1870.07 requires a 24-hour waiting period between
the time the woman signs a consent form and the time the abortion
is performed. [
Footnote 6]
"(v) Section 1870.16 requires that fetal remains be 'disposed of
in a humane and sanitary manner.' [
Footnote 7] "
Page 462 U. S. 425
A violation of any section of the ordinance is punishable as a
criminal misdemeanor. § 1870.18. If any provision is invalidated,
it is to be severed from the remainder of the ordinance. [
Footnote 8] The ordinance became
effective on May 1, 1978.
On April 19 1978, a lawsuit challenging virtually all of the
ordinance's provisions was filed in the District Court for the
Northern District of Ohio. The plaintiffs, respondents and
cross-petitioners in this Court, were three corporations that
operate abortion clinics in Akron and a physician who has performed
abortions at one of the clinics. The defendants, petitioners and
cross-respondents here, were the city of Akron and three city
officials (Akron). Two individuals (intervenors) were permitted to
intervene as codefendants "in their individual capacity as parents
of unmarried minor daughters of childbearing age."
479 F.
Supp. 1172, 1181 (1979). On April 27, 1978, the District Court
preliminarily enjoined enforcement of the ordinance.
In August, 1979, after hearing evidence, the District Court
ruled on the merits. It found that plaintiffs lacked standing to
challenge seven provisions of the ordinance, none of which is
before this Court. The District Court invalidated four provisions,
including § 1870.05 (parental notice and consent), § 1870.06(B)
(requiring disclosure of facts concerning the woman's pregnancy,
fetal development, the complications of abortion, and agencies
available to assist the woman), and § 1870.16 (disposal of fetal
remains). The court upheld the constitutionality of the remainder
of the ordinance, including § 1870.03 (hospitalization for
abortions after the first trimester), § 1870.06(C) (requiring
disclosure of the particular risks of the woman's pregnancy and the
abortion technique to be employed), and § 1870.07 (24-hour waiting
period).
Page 462 U. S. 426
All parties appealed some portion of the District Court's
judgment. The Court of Appeals for the Sixth Circuit affirmed in
part and reversed in part. 651 F.2d 1198 (1981). It affirmed the
District Court's decision that § 1870.03's hospitalization
requirement is constitutional. It also affirmed the ruling that §
1870.05, § 1870.06(B), and § 1870.16 are unconstitutional. The
Court of Appeals reversed the District Court's decision on §
1870.06(C) and § 1870.07, finding these provisions to be
unconstitutional.
Three separate petitions for certiorari were filed. In light of
the importance of the issues presented, and in particular the
conflicting decisions as to whether a State may require that all
second trimester abortions be performed in a hospital, [
Footnote 9] we granted both Akron's and
the plaintiffs' petitions. 456 U.S. 988 (1982). We denied the
intervenors' petition,
Seguin v. Akron Center for Reproductive
Health, Inc., 456 U.S. 989 (1982), but they have participated
in this Court as respondents under our Rule 19.6. We now reverse
the judgment of the Court of Appeals upholding Akron's
hospitalization requirement, but affirm the remainder of the
decision invalidating the provisions on parental consent, informed
consent, waiting period, and disposal of fetal remains.
II
In
Roe v. Wade, the Court held that the
"right of privacy, . . . founded in the Fourteenth Amendment's
concept of personal liberty and restrictions upon state action, . .
. is broad enough to encompass a woman's decision whether or not to
terminate her pregnancy."
410 U.S. at
410 U. S. 153.
Although the Constitution does not specifically identify this
right, the
Page 462 U. S. 427
history of this Court's constitutional adjudication leaves no
doubt that
"the full scope of the liberty guaranteed by the Due Process
Clause cannot be found in or limited by the precise terms of the
specific guarantees elsewhere provided in the Constitution."
Poe v. Ullman, 367 U. S. 497,
367 U. S. 543
(1961) (Harlan, J., dissenting from dismissal of appeal). Central
among these protected liberties is an individual's "freedom of
personal choice in matters of marriage and family life."
Roe, 410 U.S. at
410 U. S. 169
(Stewart, J., concurring).
See, e.g., Eisenstadt v. Baird,
405 U. S. 438
(1972);
Loving v. Virginia, 388 U. S.
1 (1967);
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). The decision in
Roe was based
firmly on this long-recognized and essential element of personal
liberty.
The Court also has recognized, because abortion is a medical
procedure, that the full vindication of the woman's fundamental
right necessarily requires that her physician be given "the room he
needs to make his best medical judgment."
Doe v. Bolton,
410 U. S. 179,
410 U. S. 192
(1973).
See Whalen v. Roe,
429 U.
S. 589,
429 U. S.
604-605, n. 33 (1977). The physician's exercise of this
medical judgment encompasses both assisting the woman in the
decisionmaking process and implementing her decision should she
choose abortion.
See Colautti v. Franklin, 439 U.
S. 379,
439 U. S. 387
(1979).
At the same time, the Court in
Roe acknowledged that
the woman's fundamental right "is not unqualified, and must be
considered against important state interests in abortion."
Roe, 410 U.S. at
410 U. S. 154.
But restrictive state regulation of the right to choose abortion,
as with other fundamental rights subject to searching judicial
examination, must be supported by a compelling state interest.
Id. at
410 U. S. 155.
We have recognized two such interests that may justify state
regulation of abortions. [
Footnote 10]
Page 462 U. S. 428
First, a State has an "important and legitimate interest in
protecting the potentiality of human life."
Id. at
410 U. S. 162.
Although this interest exists "throughout the course of the woman's
pregnancy,"
Beal v. Doe, 432 U. S. 438,
432 U. S. 446
(1977), it becomes compelling only at viability, the point at which
the fetus "has the capability of meaningful life outside the
mother's womb,"
Roe, supra, at
410 U. S. 163.
See Planned Parenthood of Central Missouri v. Danforth,
428 U. S. 52,
428 U. S. 63-65
(1976). At viability, this interest in protecting the potential
life of the unborn child is so important that the State may
proscribe abortions altogether, "except when it is necessary to
preserve the life or health of the mother."
Roe, 410 U.S.
at
410 U. S.
164.
Second, because a State has a legitimate concern with the health
of women who undergo abortions, "a State may properly assert
important interests in safeguarding health [and]
Page 462 U. S. 429
in maintaining medical standards."
Id. at
410 U. S. 154.
We held in
Roe, however, that this health interest does
not become compelling until "approximately the end of the first
trimester" of pregnancy. [
Footnote 11]
Id. at
410 U. S. 163.
Until that time, a pregnant woman must be permitted, in
consultation with her physician,
Page 462 U. S. 430
to decide to have an abortion and to effectuate that decision
"free of interference by the State." [
Footnote 12]
Ibid.
This does not mean that a State never may enact a regulation
touching on the woman's abortion right during the first weeks of
pregnancy. Certain regulations that have no significant impact on
the woman's exercise of her right may be permissible where
justified by important state health objectives. In
Danforth,
supra, we unanimously upheld two Missouri statutory
provisions, applicable to the first trimester, requiring the woman
to provide her informed written consent to the abortion and the
physician to keep certain records, even though comparable
requirements were not imposed on most other medical procedures.
See 428 U.S. at
428 U. S. 65-67,
428 U. S. 79-81.
The decisive factor was that the State met its burden of
demonstrating that these regulations furthered important
health-related state concerns. [
Footnote 13] But even these minor regulations on the
abortion procedure during the first trimester may not interfere
with physician-patient consultation or with the woman's choice
between abortion and childbirth.
See id. at
428 U. S.
81.
From approximately the end of the first trimester of pregnancy,
the State
"may regulate the abortion procedure to the extent that the
regulation reasonably relates to the preservation
Page 462 U. S. 431
and protection of maternal health. [
Footnote 14]"
Roe, 410 U.S. at
410 U. S. 163.
The State's discretion to regulate on this basis does not, however,
permit it to adopt abortion regulations that depart from accepted
medical practice. We have rejected a State's attempt to ban a
particular second trimester abortion procedure where the ban would
have increased the costs and limited the availability of abortions
without promoting important health benefits.
See Danforth,
428 U.S. at
428 U. S. 77-78.
If a State requires licensing or undertakes to regulate the
performance of abortions during this period, the health standards
adopted must be "legitimately related to the objective the State
seeks to accomplish."
Doe, 410 U.S. at
410 U. S.
195.
III
Section 1870.03 of the Akron ordinance requires that any
abortion performed "upon a pregnant woman subsequent to the end of
the first trimester of her pregnancy" [
Footnote 15] must be
Page 462 U. S. 432
"performed in a hospital." A "hospital" is
"a general hospital or special hospital devoted tp gynecology or
obstetrics which is accredited by the Joint Commission on
Accreditation of Hospitals or by the American Osteopathic
Association."
§ 1870.01(B). Accreditation by these organizations requires
compliance with comprehensive standards governing a wide variety of
health and surgical services. [
Footnote 16] The ordinance thus prevents the performance
of abortions in outpatient facilities that are not part of an acute
care, full-service hospital. [
Footnote 17]
In the District Court, plaintiffs sought to demonstrate that
this hospitalization requirement has a serious detrimental impact
on a woman's ability to obtain a second trimester abortion in
Akron, and that it is not reasonably related to the State's
interest in the health of the pregnant woman. The District Court
did not reject this argument, but rather found the evidence "not .
. . so convincing that it is willing to discard the Supreme Court's
formulation in
Roe" of a line between impermissible first
trimester regulation and permissible second trimester regulation.
479 F.
Supp. at 1215. The Court of Appeals affirmed on a similar
basis. It accepted plaintiffs' argument that Akron's
hospitalization requirement did not have a reasonable health
justification during at least part of the second trimester, but
declined to "retreat from the
bright line' in Roe v.
Wade." 651 F.2d at
Page 462 U. S. 433
1210. [
Footnote 18] We
believe that the courts below misinterpreted this Court's prior
decisions, and we now hold that § 1870.03 is unconstitutional.
In
Roe v. Wade, the Court held that, after the end of
the first trimester of pregnancy, the State's interest becomes
compelling, and it may "regulate the abortion procedure to the
extent that the regulation reasonably relates to the preservation
and protection of maternal health." 410 U.S. at
410 U. S. 163.
We noted, for example, that States could establish requirements
relating
"to the facility in which the procedure is to be performed, that
is, whether it must be in a hospital or may be a clinic or some
other place of less-than-hospital status."
Ibid. In the companion case of
Doe v. Bolton,
the Court invalidated a Georgia requirement that all abortions be
performed in a hospital licensed by the State Board of Health and
accredited by the Joint Commission on Accreditation of Hospitals.
See 410 U.S. at
410 U. S. 201.
We recognized the State's legitimate health interests in
establishing, for second trimester abortions, "standards for
licensing all facilities where abortions may be performed."
Id. at
410 U. S. 195.
We found, however, that
"the State must show more than [was shown in
Doe] in
order to prove that only the full resources of
Page 462 U. S. 434
a licensed hospital, rather than those of some other
appropriately licensed institution, satisfy these health
interests."
Ibid. [
Footnote
19]
We reaffirm today,
see supra at
462 U. S. 429,
n. 11, that a State's interest in health regulation becomes
compelling at approximately the end of the first trimester. The
existence of a compelling state interest in health, however, is
only the beginning of the inquiry. The State's regulation may be
upheld only if it is reasonably designed to further that state
interest.
See Doe, 410 U.S. at
410 U. S. 195.
And the Court in
Roe did not hold that it always is
reasonable for a State to adopt an abortion regulation that applies
to the entire second trimester. A State necessarily must have
latitude in adopting regulations of general applicability in this
sensitive area. But if it appears that, during a substantial
portion of the second trimester, the State's regulation "depart[s]
from accepted medical practice,"
supra at
462 U. S. 431,
the regulation may not be upheld simply because it may be
reasonable for the remaining portion of the trimester. Rather, the
State is obligated to make a reasonable effort to limit the effect
of its regulations to the period in the trimester during which its
health interest will be furthered.
B
There can be no doubt that § 1870.03's second trimester
hospitalization requirement places a significant obstacle in the
path of women seeking an abortion. A primary burden created by the
requirement is additional cost to the woman. The Court of Appeals
noted that there was testimony that a second trimester abortion
costs more than twice as much in a
Page 462 U. S. 435
hospital as in a clinic.
See 651 F.2d at 1209
(in-hospital abortion costs $850-$900, whereas a
dilatation-and-evacuation (D&E) abortion performed in a clinic
costs $350-$400). [
Footnote
20] Moreover, the court indicated that second trimester
abortions were rarely performed in Akron hospitals.
Ibid.
(only nine second trimester abortions performed in Akron hospitals
in the year before trial). [
Footnote 21] Thus, a second trimester hospitalization
requirement may force women to travel to find available facilities,
resulting in both financial expense and additional health risk. It
therefore is apparent that a second trimester hospitalization
requirement may significantly limit a woman's ability to obtain an
abortion.
Akron does not contend that § 1870.03 imposes only an
insignificant burden on women's access to abortion, but rather
defends it as a reasonable health regulation. This position had
strong support at the time of
Roe v. Wade, as
hospitalization for second trimester abortions was recommended by
the American Public Health Association (APHA),
see Roe,
410 U.S. at
410 U. S.
143-146, and the American College of Obstetricians and
Gynecologists (ACOG),
see Standards for
Obstetric-Gynecologic Services 65 (4th ed.1974). Since then,
however, the safety of second trimester abortions has increased
Page 462 U. S. 436
dramatically. [
Footnote
22] The principal reason is that the D&E procedure is now
widely and successfully used for second trimester abortions.
[
Footnote 23] The Court of
Appeals found that there was "an abundance of evidence that D&E
is the safest method of performing post-first trimester abortions
today." 651 F.2d at 1209. The availability of the D&E procedure
during the interval between approximately 12 and 16 weeks of
pregnancy, a period during which other second trimester abortion
techniques generally cannot be used, [
Footnote 24] has meant that women desiring an early
second trimester abortion no longer are forced to incur the health
risks of waiting until at least the 16th week of pregnancy.
For our purposes, an even more significant factor is that
experience indicates that D&E may be performed safely on an
outpatient basis in appropriate nonhospital facilities. The
evidence is strong enough to have convinced the APHA to abandon its
prior recommendation of hospitalization for all second trimester
abortions:
"Current data show that abortions occurring in the second
trimester can be safely performed by the Dilatation and Evacuation
(D and E) procedure. . . . Requirements that all abortions after 12
weeks of gestation be performed in hospitals increase the expense
and inconvenience to the woman without contributing to the safety
of the procedure."
APHA Recommended Program
Page 462 U. S. 437
Guide for Abortion Services (Revised 1979), 70 Am.J.Public
Health 652, 654 (1980) (hereinafter APHA Recommended Guide).
Similarly, the ACOG no longer suggests that all second trimester
abortions be performed in a hospital. It recommends that abortions
performed in a physician's office or outpatient clinic be limited
to 14 weeks of pregnancy, but it indicates that abortions may be
performed safely in
"a hospital-based or in a free-standing ambulatory surgical
facility, or in an outpatient clinic meeting the criteria required
for a free-standing surgical facility,"
until 18 weeks of pregnancy. ACOG, Standards for
Obstetric-Gynecologic Services 54 (5th ed.1982).
These developments, and the professional commentary supporting
them, constitute impressive evidence that -- at least during the
early weeks of the second trimester -- D&E abortions may be
performed as safely in an outpatient clinic as in a full-service
hospital. [
Footnote 25] We
conclude, therefore, that "present medical knowledge,"
Roe,
supra, at
410 U. S. 163,
convincingly undercuts Akron's justification for requiring that
all second trimester abortions be performed in a hospital.
[
Footnote 26]
Page 462 U. S. 438
Akron nonetheless urges that "[t]he fact that some mid-trimester
abortions may be done in a minimally equipped clinic does not
invalidate the regulation." [
Footnote 27] Brief for Respondents in No. 81-1172, p.19.
It is true that a state abortion regulation is not unconstitutional
simply because it does not correspond perfectly in all cases to the
asserted state interest. But the lines drawn in a state regulation
must be reasonable, and this cannot be said of § 1870.03. By
preventing the performance of D&E abortions in an appropriate
nonhospital setting, Akron has imposed a heavy, and unnecessary,
burden on women's access to a relatively inexpensive, otherwise
accessible, and safe abortion procedure. [
Footnote 28] Section 1870.03 has "the effect of
inhibiting . . . the vast majority of abortions after the first 12
weeks,"
Danforth, 428 U.S. at
428 U. S. 79,
and
Page 462 U. S. 439
therefore unreasonably infringes upon a woman's constitutional
right to obtain an abortion.
IV
We turn next to § 1870.05(B), the provision prohibiting a
physician from performing an abortion on a minor pregnant woman
under the age of 15 unless he obtains "the informed written consent
of one of her parents or her legal guardian" or unless the minor
obtains "an order from a court having jurisdiction over her that
the abortion be performed or induced." The District Court
invalidated this provision because
"[i]t does not establish a procedure by which a minor can avoid
a parental veto of her abortion decision by demonstrating that her
decision is, in fact, informed. Rather, it requires, in all cases,
both the minor's informed consent and either parental consent or a
court order."
479 F. Supp. at 1201. The Court of Appeals affirmed on the same
basis. [
Footnote 29] The
relevant legal standards are not in dispute. The Court has held
that
"the State may not impose a blanket provision . . . requiring
the consent of a parent or person
in loco parentis as a
condition for abortion of an unmarried minor."
Danforth, supra, at
428 U. S. 74. In
Bellotti v. Baird, 443 U. S. 622
(1979) (
Bellotti II), a majority of the Court indicated
that a State's interest in protecting immature minors will sustain
a requirement of a consent substitute, either parental or judicial.
See id. at
443 U. S.
640-642 (plurality opinion for four Justices);
id. at
443 U. S.
656-657 (WHITE, J., dissenting) (expressing approval of
absolute parental or judicial consent requirement).
See also
Danforth, supra, at
428 U. S.
102-105 (STEVENS, J., concurring in part and dissenting
in part). The
Bellotti II plurality cautioned, however,
that the State must provide an alternative procedure whereby a
pregnant minor may demonstrate that she is sufficiently mature to
make the abortion decision herself
Page 462 U. S. 440
or that, despite her immaturity, an abortion would be in her
best interests. 443 U.S. at
443 U. S.
643-644. Under these decisions, it is clear that Akron
may not make a blanket determination that all minors under the age
of 15 are too immature to make this decision, or that an abortion
never may be in the minor's best interests without parental
approval.
Akron's ordinance does not create expressly the alternative
procedure required by
Bellotti II. But Akron contends that
the Ohio Juvenile Court will qualify as a "court having
jurisdiction" within the meaning of § 1879.05(B), and that
"it is not to be assumed that, during the course of the juvenile
proceedings the Court will not construe the ordinance in a manner
consistent with the constitutional requirement of a determination
of the minor's ability to make an informed consent."
Brief for Petitioner in No. 81-746, p. 28. Akron concludes that
the courts below should not have invalidated § 1879.05(B) on its
face. The city relies on
Bellotti v. Baird, 428 U.
S. 132 (1976) (
Bellotti I), in which the Court
did not decide whether a State's parental consent provisions were
unconstitutional as applied to mature minors, holding instead
that
"abstention is appropriate where an unconstrued state statute is
susceptible of a construction by the state judiciary 'which might
avoid in whole or in part the necessity for federal constitutional
adjudication, or at least materially change the nature of the
problem.'"
Id. at
428 U. S.
146-147 (quoting
Harrison v. NAACP,
360 U. S. 167,
360 U. S. 177
(1959)).
See also H. L. v. Matheson, 450 U.
S. 398 (1981) (refusing to decide whether parental
notice statute would be constitutional as applied to mature
minors). [
Footnote 30]
Page 462 U. S. 441
We do not think that the abstention principle should have been
applied here. It is reasonable to assume, as we did in
Bellotti
I, supra, and
Matheson, supra, that a state court,
presented with a state statute specifically governing abortion
consent procedures for pregnant minors, will attempt to construe
the statute consistently with constitutional requirements. This
suit, however, concerns a municipal ordinance that creates no
procedures for making the necessary determinations. Akron seeks to
invoke the Ohio statute governing juvenile proceedings, but that
statute neither mentions minors' abortions nor suggests that the
Ohio Juvenile Court has authority to inquire into a minor's
maturity or emancipation. [
Footnote 31] In these circumstances, we do not think that
the Akron ordinance, as applied in Ohio juvenile proceedings, is
reasonably susceptible of being construed to create an "opportunity
for case-by-case evaluations of the maturity of pregnant minors."
Bellotti II, supra, at
443 U. S. 643, n.
23 (plurality
Page 462 U. S. 442
opinion). We therefore affirm the Court of Appeals' judgment
that § 1879.05(B) is unconstitutional.
V
The Akron ordinance provides that no abortion shall be performed
except "with the informed written consent of the pregnant woman, .
. . given freely and without coercion." § 1879.06(A). Furthermore,
"in order to insure that the consent for an abortion is truly
informed consent," the woman must be "orally informed by her
attending physician" of the status of her pregnancy, the
development of her fetus, the date of possible viability, the
physical and emotional complications that may result from an
abortion, and the availability of agencies to provide her with
assistance and information with respect to birth control, adoption,
and childbirth. § 1879.06(B). In addition, the attending physician
must inform her
"of the particular risks associated with her own pregnancy and
the abortion technique to be employed . . . [and] other information
which in his own medical judgment is relevant to her decision as to
whether to have an abortion or carry her pregnancy to term."
§ 1879.06(C).
The District Court found that § 1879.06(B) was unconstitutional,
but that § 1879.06(C) was related to a valid state interest in
maternal health.
See 479 F. Supp. at 1203-1204. The Court
of Appeals concluded that both provisions were unconstitutional.
See 651 F.2d at 1207. We affirm.
A
In
Danforth, we upheld a Missouri law requiring a
pregnant woman to "certif[y] in writing her consent to the abortion
and that her consent is informed and freely given and is not the
result of coercion." 428 U.S. at
428 U. S. 85. We
explained:
"The decision to abort . . . is an important, and often a
stressful one, and it is desirable and imperative that it be made
with full knowledge of its nature and consequences.
Page 462 U. S. 443
The woman is the one primarily concerned, and her awareness of
the decision and its significance may be assured, constitutionally,
by the State to the extent of requiring her prior written
consent."
Id. at
428 U. S. 67. We
rejected the view that "informed consent" was too vague a term,
construing it to mean
"the giving of information to the patient as to just what would
be done and as to its consequences. To ascribe more meaning than
this might well confine the attending physician in an undesired and
uncomfortable straitjacket in the practice of his profession."
Id. at
428 U. S. 67, n.
8.
The validity of an informed consent requirement thus rests on
the State's interest in protecting the health of the pregnant
woman. The decision to have an abortion has "implications far
broader than those associated with most other kinds of medical
treatment,"
Bellotti II, 443 U.S. at
443 U. S. 649
(plurality opinion), and thus the State legitimately may seek to
ensure that it has been made
"in the light of all attendant circumstances -- psychological
and emotional as well as physical -- that might be relevant to the
wellbeing of the patient."
Colautti v. Franklin, 439 U.S. at
439 U. S. 394.
[
Footnote 32] 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
Page 462 U. S. 444
will not justify abortion regulations designed to influence the
woman's informed choice between abortion or childbirth. [
Footnote 33]
B
Viewing the city's regulations in this light, we believe that §
1879.06(B) attempts to extend the State's interest in ensuring
"informed consent" beyond permissible limits. First, it is fair to
say that much of the information required is designed not to inform
the woman's consent, but rather to persuade her to withhold it
altogether. Subsection (3) requires the physician to inform his
patient that "the unborn child is a human life from the moment of
conception," a requirement inconsistent with the Court's holding in
Roe v. Wade that a State may not adopt one theory of when
life begins to justify its regulation of abortions.
See
410 U.S. at
410 U. S.
159-162. Moreover, much of the detailed description of
"the anatomical and physiological characteristics of the particular
unborn child" required by subsection (3) would involve, at best,
speculation by the physician. [
Footnote 34] And subsection (5), that begins with the
dubious statement that "abortion is a major surgical procedure"
[
Footnote 35] and proceeds
to describe numerous possible
Page 462 U. S. 445
physical and psychological complications of abortion, [
Footnote 36] is a "parade of
horribles" intended to suggest that abortion is a particularly
dangerous procedure.
An additional, and equally decisive, objection to § 1870.06(B)
is its intrusion upon the discretion of the pregnant woman's
physician. This provision specifies a litany of information that
the physician must recite to each woman regardless of whether, in
his judgment, the information is relevant to her personal decision.
For example, even if the physician believes that some of the risks
outlined in subsection (5) are nonexistent for a particular
patient, he remains obligated to describe them to her. In
Danforth, the Court warned against placing the physician
in just such an "undesired and uncomfortable straitjacket." 428
U.S. at
428 U. S. 67, n.
8. Consistent with its interest in ensuring informed consent, a
State may require that a physician make certain that his patient
understands the physical and emotional implications of having an
abortion. But Akron has gone far beyond merely describing the
general subject matter relevant to informed consent. By insisting
upon recitation of a lengthy and inflexible list of information,
Akron unreasonably has placed "obstacles in the path of the doctor
upon whom [the woman is] entitled to rely for advice in connection
with her decision."
Whalen v. Roe, 429 U.S. at
429 U. S. 604,
n. 33. [
Footnote 37]
Page 462 U. S. 446
C
Section 1870.06(C) presents a different question. Under this
provision, the "attending physician" must inform the woman
"of the particular risks associated with her own pregnancy and
the abortion technique to be employed including providing her with
at least a general description of the medical instructions to be
followed subsequent to the abortion in order to insure her safe
recovery, and shall in addition provide her with such other
information which in his own medical judgment is relevant to her
decision as to whether to have an abortion or carry her pregnancy
to term."
The information required clearly is related to maternal health
and to the State's legitimate purpose in requiring informed
consent. Nonetheless, the Court of Appeals determined that it
interfered with the physician's medical judgment
"in exactly the same way as Section 1870.06(B). It requires the
doctor to make certain disclosures in all cases, regardless of his
own professional judgment as to the desirability of doing so."
651 F.2d at 1207. This was a misapplication of
Danforth. There we construed "informed consent" to mean
"the giving of information to the patient as to just what would be
done and as to its consequences." 428 U.S. at
428 U. S. 67, n.
8. We see no significant difference in Akron's requirement that the
woman be told of the particular risks of her pregnancy and the
abortion technique to be
Page 462 U. S. 447
used, and be given general instructions on proper post-abortion
care. Moreover, in contrast to subsection (B), § 1879.06(C) merely
describes in general terms the information to be disclosed. It
properly leaves the precise nature and amount of this disclosure to
the physician's discretion and "medical judgment."
The Court of Appeals also held, however, that § 1879.06(C) was
invalid because it required that the disclosure be made by the
"attending physician." The court found that
"the practice of all three plaintiff clinics has been for the
counseling to be conducted by persons other than the doctor who
performs the abortion,"
651 F.2d at 1207, and determined that Akron had not justified
requiring the physician personally to describe the health risks.
Akron challenges this holding as contrary to our cases that
emphasize the importance of the physician-patient relationship. In
Akron's view, as in the view of the dissenting judge below, the
"attending physician" requirement "does no more than seek to ensure
that there is, in fact, a true physician-patient relationship even
for the woman who goes to an abortion clinic."
Id. at 1217
(Kennedy, J., concurring in part and dissenting in part).
Requiring physicians personally to discuss the abortion
decision, its health risks, and consequences with each patient may
in some cases add to the cost of providing abortions, though the
record here does not suggest that ethical physicians will charge
more for adhering to this typical element of the physician-patient
relationship. Yet in
Roe and subsequent cases we have
"stressed repeatedly the central role of the physician, both in
consulting with the woman about whether or not to have an abortion
and in determining how any abortion was to be carried out."
Colautti v. Franklin, 439 U.S. at
439 U. S. 387.
Moreover, we have left no doubt that, to ensure the safety of the
abortion procedure, the States may mandate that only physicians
perform abortions.
See Connecticut v. Menillo,
423 U. S. 9,
423 U. S. 11
(1975);
Roe, 410 U.S. at
410 U. S.
165.
Page 462 U. S. 448
We are not convinced, however, that there is as vital a state
need for insisting that the physician performing the abortion, or
for that matter any physician, personally counsel the patient in
the absence of a request. The State's interest is in ensuring that
the woman's consent is informed and unpressured; the critical
factor is whether she obtains the necessary information and
counseling from a qualified person, not the identity of the person
from whom she obtains it. [
Footnote 38] Akron and intervenors strongly urge that the
nonphysician counselors at the plaintiff abortion clinics are not
trained or qualified to perform this important function. The courts
below made no such findings, however, and, on the record before us,
we cannot say that the woman's consent to the abortion will not be
informed if a physician delegates the counseling task to another
qualified individual.
In so holding, we do not suggest that the State is powerless to
vindicate its interest in making certain the "important" and
"stressful" decision to abort "[i]s made with full knowledge of its
nature and consequences."
Danforth, 428 U.S. at
428 U. S. 67.
Nor do we imply that a physician may abdicate his essential role as
the person ultimately responsible for the medical aspects of the
decision to perform the abortion. [
Footnote 39] A
Page 462 U. S. 449
State may define the physician's responsibility to include
verification that adequate counseling has been provided and that
the woman's consent is informed. [
Footnote 40] In addition, the State may establish
reasonable minimum qualifications for those people who perform the
primary counseling function. [
Footnote 41]
See, e.g., Doe, 410 U.S. at
410 U. S. 195
(State may require a medical facility "to possess all the staffing
and services necessary to perform an abortion safely"). In light of
these alternatives, we believe that it is unreasonable for a State
to insist that only a physician is competent to provide the
information and counseling relevant to informed consent. We affirm
the judgment of the Court of Appeals that § 1879.06(C) is
invalid.
VI
The Akron ordinance prohibits a physician from performing an
abortion until 24 hours after the pregnant woman signs a consent
form. § 1879.07. [
Footnote
42] The District Court upheld this provision on the ground that
it furthered Akron's interest in ensuring "that a woman's abortion
decision is made after careful consideration of all the facts
applicable to her particular
Page 462 U. S. 450
situation." 479 F. Supp. at 1204. The Court of Appeals reversed,
finding that the inflexible waiting period had "no medical basis,"
and that careful consideration of the abortion decision by the
woman "is beyond the state's power to require." 651 F.2d at 1208.
We affirm the Court of Appeals' judgment.
The District Court found that the mandatory 24-hour waiting
period increases the cost of obtaining an abortion by requiring the
woman to make two separate trips to the abortion facility.
See 479 F. Supp. at 1204. Plaintiffs also contend that,
because of scheduling difficulties, the effective delay may be
longer than 24 hours, and that such a delay in some cases could
increase the risk of an abortion. Akron denies that any significant
health risk is created by a 24-hour waiting period, and argues that
a brief period of delay -- with the opportunity for reflection on
the counseling received -- often will be beneficial to the pregnant
woman.
We find that Akron has failed to demonstrate that any legitimate
state interest is furthered by an arbitrary and inflexible waiting
period. There is no evidence suggesting that the abortion procedure
will be performed more safely. Nor are we convinced that the
State's legitimate concern that the woman's decision be informed is
reasonably served by requiring a 24-hour delay as a matter of
course. The decision whether to proceed with an abortion is one as
to which it is important to "affor[d] the physician adequate
discretion in the exercise of his medical judgment."
Colautti
v. Franklin, 439 U.S. at
439 U. S. 387.
In accordance with the ethical standards of the profession, a
physician will advise the patient to defer the abortion when he
thinks this will be beneficial to her. [
Footnote 43] But if a woman, after appropriate
counseling, is prepared
Page 462 U. S. 451
to give her written informed consent and proceed with the
abortion, a State may not demand that she delay the effectuation of
that decision.
VII
Section 1870.16 of the Akron ordinance requires physicians
performing abortions to "insure that the remains of the unborn
child are disposed of in a humane and sanitary manner." The Court
of Appeals found that the word "humane" was impermissibly vague as
a definition of conduct subject to criminal prosecution. The court
invalidated the entire provision, declining to sever the word
"humane" in order to uphold the requirement that disposal be
"sanitary."
See 651 F.2d at 1211. We affirm this
judgment.
Akron contends that the purpose of § 1879.16 is simply "
to
preclude the mindless dumping of aborted fetuses onto garbage
piles.'" Planned Parenthood Assn. v.
Fitzpatrick, 401 F.
Supp. 554, 573 (ED Pa.1975) (three-judge court) (quoting
State's characterization of legislative purpose), summarily
aff'd sub nom. Franklin v. Fitzpatrick, 428 U.S. 901 (1976).
[Footnote 44] It is far from
clear, however, that this provision has such a limited intent. The
phrase "humane and sanitary" does, as the Court of Appeals noted,
suggest a possible intent to "mandate some sort of `decent burial'
of an embryo at the earliest stages of formation." 651 F.2d at
1211. This level of uncertainty is fatal where criminal liability
is imposed. See Colautti v. Franklin, supra, at
439 U. S. 396.
Because § 1879.16 fails to give a physician "fair notice that his
contemplated conduct is forbidden," United
States v. Harriss, 347
Page 462 U. S. 452
U.S. 612,
347 U. S. 617
(1954), we agree that it violates the Due Process Clause. [
Footnote 45]
VIII
We affirm the judgment of the Court of Appeals invalidating
those sections of Akron's "Regulations of Abortions" ordinance that
deal with parental consent, informed consent, a 24-hour waiting
period, and the disposal of fetal remains. The remaining portion of
the judgment, sustaining Akron's requirement that all second
trimester abortions be performed in a hospital, is reversed.
It is so ordered.
* Together with No. 81-1172,
Akron Center for Reproductive
Health, Inc., et al. v. City of Akron et al., also on
certiorari to the same court.
[
Footnote 1]
There are especially compelling reasons for adhering to
stare decisis in applying the principles of
Roe v.
Wade. That case was considered with special care. It was first
argued during the 1971 Term, and reargued -- with extensive
briefing -- the following Term. The decision was joined by THE
CHIEF JUSTICE and six other Justices. Since
Roe was
decided in January, 1973, the Court repeatedly and consistently has
accepted and applied the basic principle that a woman has a
fundamental right to make the highly personal choice whether or not
to terminate her pregnancy.
See Connecticut v. Menillo,
423 U. S. 9 (1975);
Planned Parenthood of Central Missouri v. Danforth,
428 U. S. 52
(1976);
Bellotti v. Baird, 428 U.
S. 132 (1976);
Beal v. Doe, 432 U.
S. 438 (1977);
Maher v. Roe, 432 U.
S. 464 (1977);
Colautti v. Franklin,
439 U. S. 379
(1979);
Bellotti v. Baird, 443 U.
S. 622 (1979);
Harris v. McRae, 448 U.
S. 297 (1980);
H. L. v. Matheson, 450 U.
S. 398 (1981).
Today, however, the dissenting opinion rejects the basic premise
of
Roe and its progeny. The dissent stops short of arguing
flatly that
Roe should be overruled. Rather, it adopts
reasoning that, for all practical purposes, would accomplish
precisely that result. The dissent states that "[e]ven assuming
that there is a fundamental right to terminate pregnancy in some
situations," the State's compelling interests in maternal health
and potential human life "are present
throughout
pregnancy."
Post at
462 U. S. 459
(emphasis in original). The existence of these compelling interests
turns out to be largely unnecessary, however, for the dissent does
not think that even one of the numerous abortion regulations at
issue imposes a sufficient burden on the "limited" fundamental
right,
post at
462 U. S. 465,
n. 10, to require heightened scrutiny. Indeed, the dissent asserts
that, regardless of cost,
"[a] health regulation, such as the hospitalization requirement,
simply does not rise to the level of 'official interference' with
the abortion decision."
Post at
462 U. S. 467
(quoting
Harris v. McRae, supra, at
448 U. S. 328
(WHITE, J., concurring)). The dissent therefore would hold that a
requirement that all abortions be performed in an acute care
general hospital does not impose an unacceptable burden on the
abortion decision. It requires no great familiarity with the cost
and limited availability of such hospitals to appreciate that the
effect of the dissent's views would be to drive the performance of
many abortions back underground free of effective regulation, and
often without the attendance of a physician.
In sum, it appears that the dissent would uphold virtually any
abortion regulation under a rational basis test. It also appears
that even where heightened scrutiny is deemed appropriate, the
dissent would uphold virtually any abortion-inhibiting regulation
because of the State's interest in preserving potential human life.
See post at
462 U. S. 474
(arguing that a 24-hour waiting period is justified in part because
the abortion decision "has grave consequences for the fetus"). This
analysis is wholly incompatible with the existence of the
fundamental right recognized in
Roe v. Wade.
[
Footnote 2]
The ordinance was prefaced by several findings:
"WHEREAS, the citizens of Akron are entitled to the highest
standard of health care; and"
"WHEREAS, abortion is a major surgical procedure which can
result in complications, and adequate equipment and personnel
should be required for its safe performance in order to insure the
highest standards of care for the protection of the life and health
of the pregnant woman; and"
"WHEREAS, abortion should be performed only in a hospital or in
such other special outpatient facility offering the maximum
safeguards to the life and health of the pregnant woman; and"
"WHEREAS, it is the finding of Council that there is no point in
time between the union of sperm and egg, or at least the blastocyst
stage and the birth of the infant at which point we can say the
unborn child is not a human life, and that the changes occurring
between implantation, a six-weeks embryo, a six-month fetus, and a
one-week-old child, or a mature adult are merely stages of
development and maturation, and"
"WHEREAS, traditionally the physician has been responsible for
the welfare of both the pregnant woman and her unborn child, and
that while situations of conflict may arise between a pregnant
woman's health interests and the welfare of her unborn child, the
resolution of such conflicts by inducing abortion in no way implies
that the physician has an adversary relationship towards the unborn
child; and"
"WHEREAS, Council therefore wishes to affirm that the
destruction of the unborn child is not the primary purpose of
abortion and that consequently Council recognizes a continuing
obligation on the part of the physician towards the survival of a
viable unborn child where this obligation can be discharged without
additional hazard to the health of the pregnant woman; and"
"WHEREAS, Council, after extensive public hearings and
investigations concludes that enactment of this ordinance is a
reasonable and prudent action which will significantly contribute
to the preservation of the public life, health, safety, morals, and
welfare."
Akron Ordinance No. 160-1978.
[
Footnote 3]
"§ 1870.03 ABORTION IN HOSPITAL"
"No person shall perform or induce an abortion upon a pregnant
woman subsequent to the end of the first trimester of her
pregnancy, unless such abortion is performed in a hospital."
Section 1870.01(B) defines "hospital" as
"a general hospital or special hospital devoted to gynecology or
obstetrics which is accredited by the Joint Commission on
Accreditation of Hospitals or by the American Osteopathic
Association."
[
Footnote 4]
"§ 1870.05 NOTICE AND CONSENT"
"(A) No physician shall perform or induce an abortion upon an
unmarried pregnant woman under the age of 18 years without first
having given at least twenty-four (24) hours actual notice to one
of the parents or the legal guardian of the minor pregnant woman as
to the intention to perform such abortion, or if such parent or
guardian cannot be reached after a reasonable effort to find him or
her, without first having given at least seventy-two (72) hours
constructive notice to one of the parents or the legal guardian of
the minor pregnant woman by certified mail to the last known
address of one of the parents or guardian, computed from the time
of mailing, unless the abortion is ordered by a court having
jurisdiction over such minor pregnant woman."
"(B) No physician shall perform or induce an abortion upon a
minor pregnant woman under the age of fifteen (15) years without
first having obtained the informed written consent of the minor
pregnant woman in accordance with Section 1870.06 of this Chapter,
and"
"(1) First having obtained the informed written consent of one
of her parents or her legal guardian in accordance with Section
1870.06 of this Chapter, or"
"(2) The minor pregnant woman first having obtained an order
from a court having jurisdiction over her that the abortion be
performed or induced."
[
Footnote 5]
"§ 1870.06 INFORMED CONSENT"
"(A) An abortion otherwise permitted by law shall be performed
or induced only with the informed written consent of the pregnant
woman, and one of her parents or her legal guardian whose consent
is required in accordance with Section 1870.05(B) of this Chapter,
given freely and without coercion."
"(B) In order to insure that the consent for an abortion is
truly informed consent, an abortion shall be performed or induced
upon a pregnant woman only after she, and one of her parents or her
legal guardian whose consent is required in accordance with Section
1870.05(B) of this Chapter, have been orally informed by her
attending physician of the following facts, and have signed a
consent form acknowledging that she, and the parent or legal
guardian where applicable, have been informed as follows:"
"(1) That according to the best judgment of her attending
physician she is pregnant."
"(2) The number of weeks elapsed from the probable time of the
conception of her unborn child, based upon the information provided
by her as to the time of her last menstrual period or after a
history and physical examination and appropriate laboratory
tests."
"(3) That the unborn child is a human life from the moment of
conception and that there has been described in detail the
anatomical and physiological characteristics of the particular
unborn child at the gestational point of development at which time
the abortion is to be performed, including, but not limited to,
appearance, mobility, tactile sensitivity, including pain,
perception or response, brain and heart function, the presence of
internal organs and the presence of external members."
"(4) That her unborn child may be viable, and thus capable of
surviving outside of her womb, if more than twenty-two (22) weeks
have elapsed from the time of conception, and that her attending
physician has a legal obligation to take all reasonable steps to
preserve the life and health of her viable unborn child during the
abortion."
"(5) That abortion is a major surgical procedure which can
result in serious complications, including hemorrhage, perforated
uterus, infection, menstrual disturbances, sterility and
miscarriage and prematurity in subsequent pregnancies; and that
abortion may leave essentially unaffected or may worsen any
existing psychological problems she may have, and can result in
severe emotional disturbances."
"(6) That numerous public and private agencies and services are
available to provide her with birth control information, and that
her physician will provide her with a list of such agencies and the
services available if she so requests."
"(7) That numerous public and private agencies and services are
available to assist her during pregnancy and after the birth of her
child, if she chooses not to have the abortion, whether she wishes
to keep her child or place him or her for adoption, and that her
physician will provide her with a list of such agencies and the
services available if she so requests."
"(C) At the same time the attending physician provides the
information required by paragraph (B) of this Section, he shall, at
least orally, inform the pregnant woman, and one of her parents or
her legal guardian whose consent is required in accordance with
Section 1870.05(B) of this Chapter, of the particular risks
associated with her own pregnancy and the abortion technique to be
employed including providing her with at least a general
description of the medical instructions to be followed subsequent
to the abortion in order to insure her safe recovery, and shall in
addition provide her with such other information which in his own
medical judgment is relevant to her decision as to whether to have
an abortion or carry her pregnancy to term."
"(D) The attending physician performing or inducing the abortion
shall provide the pregnant woman, or one of her parents or legal
guardian signing the consent form where applicable, with a
duplicate copy of the consent form signed by her, and one of her
parents or her legal guardian where applicable, in accordance with
paragraph (B) of this Section."
[
Footnote 6]
"§ 1870.07 WAITING PERIOD"
"No physician shall perform or induce an abortion upon a
pregnant woman until twenty-four (24) hours have elapsed from the
time the pregnant woman, and one of her parents or her legal
guardian whose consent is required in accordance with Section
1870.05(B) of this Chapter, have signed the consent form required
by Section 1870.06 of this Chapter, and the physician so certifies
in writing that such time has elapsed."
[
Footnote 7]
"§ 1870.16 DISPOSAL OF REMAINS"
"Any physician who shall perform or induce an abortion upon a
pregnant woman shall insure that the remains of the unborn child
are disposed of in a humane and sanitary manner."
[
Footnote 8]
"§ 1870.19 SEVERABILITY"
"Should any provision of this Chapter be construed by any court
of law to be invalid, illegal, unconstitutional, or otherwise
unenforceable, such invalidity, illegality, unconstitutionality, or
unenforceability shall not extend to any other provision or
provisions of this Chapter."
[
Footnote 9]
Compare Planned Parenthood Assn. of Kansas City, Mo., Inc.
v. Ashcroft, 655 F.2d 848 (CA8),
supplemented, 664
F.2d 687 (CA8 1981) (invalidating hospital requirement),
with
Simopoulos v. Commonwealth, 221 Va. 1059,
277 S.E.2d
194 (1981) (upholding hospital requirement). Numerous States
require that second trimester abortions be performed in hospitals.
See Brief for Americans United for Life as
Amicus
Curiae in
Simopoulos v. Virginia, O.T. 1982, No.
81-185, p. 4, n. 1 (listing 23 States).
[
Footnote 10]
In addition, the Court repeatedly has recognized that, in view
of the unique status of children under the law, the States have a
"significant" interest in certain abortion regulations aimed at
protecting children "that is not present in the case of an adult."
Planned Parenthood of Central Missouri v. Danforth, 428
U.S. at
428 U. S. 75.
See Carey v. Population Services International,
431 U. S. 678,
431 U. S. 693,
n. 15 (1977) (plurality opinion). The right of privacy includes
"independence in making certain kinds of important decisions,"
Whalen v. Roe, 429 U. S. 589,
429 U. S.
599-600 (1977), but this Court has recognized that many
minors are less capable than adults of making such important
decisions.
See Bellotti v. Baird, 443 U.S. at
443 U. S.
633-635 (
Bellotti II) (plurality opinion);
Danforth, supra, at
428 U. S. 102
(STEVENS, J., concurring in part and dissenting in part).
Accordingly, we have held that the States have a legitimate
interest in encouraging parental involvement in their minor
children's decision to have an abortion.
See H. L. v.
Matheson, 450 U. S. 398
(1981) (parental notice);
Bellotti II, supra, at
443 U. S. 639,
443 U. S. 648
(plurality opinion) (parental consent). A majority of the Court,
however, has indicated that these state and parental interests must
give way to the constitutional right of a mature minor or of an
immature minor whose best interests are contrary to parental
involvement.
See, e.g., Matheson, 450 U.S. at
450 U. S. 420
(POWELL, J., concurring);
id. at
450 U. S.
450-451 (MARSHALL, J., dissenting). The plurality in
Bellotti II concluded that a State choosing to encourage
parental involvement must provide an alternative procedure through
which a minor may demonstrate that she is mature enough to make her
own decision or that the abortion is in her best interest.
See
Bellotti II, supra, at
443 U. S.
643-644.
[
Footnote 11]
Roe identified the end of the first trimester as the
compelling point because, until that time -- according to the
medical literature available in 1973 -- "mortality in abortion may
be less than mortality in normal childbirth." 410 U.S. at
410 U. S. 163.
There is substantial evidence that developments in the past decade,
particularly the development of a much safer method for performing
second trimester abortions,
see infra at
462 U. S.
435-437, have extended the period in which abortions are
safer than childbirth.
See, e.g., LeBolt, Grimes, &
Cates, Mortality From Abortion and Childbirth: Are the Populations
Comparable?, 248 J.A.M.A. 188, 191 (1982) (abortion may be safer
than childbirth up to gestational ages of 16 weeks).
We think it prudent, however, to retain
Roe's
identification of the beginning of the second trimester as the
approximate time at which the State's interest in maternal health
becomes sufficiently compelling to justify significant regulation
of abortion. We note that the medical evidence suggests that, until
approximately the end of the first trimester, the State's interest
in maternal health would not be served by regulations that restrict
the manner in which abortions are performed by a licensed
physician.
See, e.g., American College of Obstetricians
and Gynecologists (ACOG), Standards for Obstetric-Gynecologic
Services 54 (5th ed.1982) (hereinafter ACOG Standards)
(uncomplicated abortions generally may be performed in a
physician's office or an outpatient clinic up to 14 weeks from the
first day of the last menstrual period); ACOG Technical Bulletin
No. 56, Methods of Mid-Trimester Abortion 4 (Dec.1979) ("Regardless
of advances in abortion technology, midtrimester terminations will
likely remain more hazardous, expensive, and emotionally disturbing
for women than earlier abortions").
The
Roe trimester standard thus continues to provide a
reasonable legal framework for limiting a State's authority to
regulate abortions. Where the State adopts a health regulation
governing the performance of abortions during the second trimester,
the determinative question should be whether there is a reasonable
medical basis for the regulation.
See Roe, 410 U.S. at
410 U. S. 163.
The comparison between abortion and childbirth mortality rates may
be relevant only where the State employs a health rationale as a
justification for a complete prohibition on abortions in certain
circumstances.
See Danforth, supra, at
428 U. S. 78-79
(invalidating state ban on saline abortions, a method that was
"safer, with respect to maternal mortality, than even continuation
of the pregnancy until normal childbirth").
[
Footnote 12]
Of course, the State retains an interest in ensuring the
validity of
Roe's factual assumption that "the first
trimester abortion [is] as safe for the woman as normal childbirth
at term," an assumption that "holds true only if the abortion is
performed by medically competent personnel under conditions
insuring maximum safety for the woman."
Connecticut v.
Menillo, 423 U. S. 9,
423 U. S. 11
(1975) (per curiam). On this basis, for example, it is permissible
for the States to impose criminal sanctions on the performance of
an abortion by a nonphysician.
Ibid.
[
Footnote 13]
For example, we concluded that recordkeeping,
"if not abused or overdone, can be useful to the State's
interest in protecting the health of its female citizens, and may
be a resource that is relevant to decisions involving medical
experience and judgment."
428 U.S. at
438 U. S. 81.
See infra at
462 U. S.
443-445 (discussing the State's interest in requiring
informed consent).
[
Footnote 14]
"Examples of permissible state regulation in this area are
requirements as to the qualifications of the person who is to
perform the abortion; as to the licensure of that person; as to the
facility in which the procedure is to be performed, that is,
whether it must be a hospital or may be a clinic or some other
place of less-than-hospital status; as to the licensing of the
facility; and the like."
Roe, supra, at
410 U. S. 163-164.
[
Footnote 15]
The Akron ordinance does not define "first trimester," but
elsewhere suggests that the age of the fetus should be measured
from the date of conception.
See § 1870.06(B)(2)
(physician must inform woman of the number of weeks elapsed since
conception); § 1870.06(B)(4) (physician must inform woman that a
fetus may be viable after 22 weeks from conception). An average
pregnancy lasts approximately 38 weeks from the time of conception
or, as more commonly measured, 40 weeks from the beginning of the
woman's last menstrual period. Under both methods, there may be
more than a 2-week deviation either way.
Because of the approximate nature of these measurements, there
is no certain method of delineating "trimesters." Frequently, the
first trimester is estimated as 12 weeks following conception, or
14 weeks following the last menstrual period. We need not attempt
to draw a precise line, as this Court -- for purposes of analysis
-- has identified the "compelling point" for the State's interest
in health as "approximately the end of the first trimester."
Roe, 410 U.S. at
410 U. S. 163.
Unless otherwise indicated, all references in this opinion to
gestational age are based on the time from the beginning of the
last menstrual period.
[
Footnote 16]
The Joint Commission on Accreditation of Hospitals (JCAH), for
example, has established guidelines for the following services:
dietetic, emergency, home care, nuclear medicine, pharmaceutical,
professional library, rehabilitation, social work, and special
care.
See generally JCAH, Accreditation Manual for
Hospitals, 1983 Edition (1982).
[
Footnote 17]
Akron's ordinance distinguishes between "hospitals" and
outpatient clinics. Section 1870.02 provides that even first
trimester abortions must be performed in "a hospital or an abortion
facility." "Abortion facility" is defined as "a clinic, physician's
office, or any other place or facility in which abortions are
performed, other than a hospital." § 1870.01(G).
[
Footnote 18]
The Court of Appeals believed that it was bound by
Gary-Northwest Indiana Women's Services, Inc. v.
Bowen, 496 F.
Supp. 894 (ND Ind.1980) (three-judge court),
summarily
aff'd sub nom. Gary-Northwest Indiana Women's Services, Inc. v.
Orr, 451 U.S. 934 (1981), in which an Indiana second trimester
hospitalization requirement was upheld. Although the District Court
in that case found that
"
Roe does not render the constitutionality of second
trimester regulations subject to either the availability of
abortions or the improvements in medical techniques and
skills,"
496 F. Supp. at 901-902, it also rested the decision on the
alternative ground that the plaintiffs had failed to provide
evidence to support their theory that it was unreasonable to
require hospitalization for dilatation and evacuation abortions
performed early in the second trimester.
See id. at
902-903. Our summary affirmance therefore is not binding precedent
on the hospitalization issue.
See Illinois State Board of
Elections v. Socialist Workers Party, 440 U.
S. 173,
440 U. S.
180-181,
440 U. S.
182-183 (1979).
[
Footnote 19]
We also found that the additional requirement that the licensed
hospital be accredited by the JCAH was "not
based on
differences that are reasonably related to the purposes of the Act
in which it is found.'" Doe, 410 U.S. at 194 (quoting
Morey v. Doud, 354 U. S. 457, 465
(1957)). We concluded that, in any event, Georgia's hospital
requirement was invalid because it applied to first trimester
abortions.
[
Footnote 20]
National statistics indicate a similar cost difference. In 1978,
the average clinic charged $284 for a D&E abortion, whereas the
average hospital charge was $435. The hospital charge did not
include the physician's fee, which ran as high as $300.
See Rosoff, The Availability of Second trimester Abortion
Services in the United States, published in Second trimester
Abortion: Perspectives After a Decade of Experience 35 (G. Berger,
W. Brenner, & L . Keith eds.1981) (hereinafter Second trimester
Abortion) .
[
Footnote 21]
The Akron situation is not unique. In many areas of this
country, few, if any, hospitals perform second trimester abortions.
See, e.g., Planned Parenthood Assn. of Kansas City, Mo., Inc.
v. Ashcroft, 664 F.2d at 689 (second trimester D&E
abortions available at only one hospital in Missouri);
Wolfe v.
Stumbo, 519 F. Supp.
22, 23 (WD Ky.1980) (no elective post-first trimester abortion
performed in Kentucky hospitals);
Margaret S. v.
Edwards, 488 F.
Supp. 181, 192 (ED La.1980) (no hospitals in Louisiana perform
abortions after first trimester).
[
Footnote 22]
The death-to-case ratio for all second trimester abortions in
this country fell from 14.4 deaths per 100,000 abortions in 1972 to
7.6 per 100,000 in 1977.
See Tyler, Cates, Schulz, Selik,
& Smith, Second trimester Induced Abortion in the United
States, published in Second trimester Abortion 17-20.
[
Footnote 23]
At the time
Roe was decided, the D&E procedure was
used only to perform first trimester abortions.
[
Footnote 24]
Instillation procedures, the primary means of performing a
second trimester abortion before the development of D&E,
generally cannot be performed until approximately the 16th week of
pregnancy because, until that time, the amniotic sac is too small.
See Grimes & Cates, Dilatation and Evacuation,
published in Second trimester Abortion 121.
[
Footnote 25]
See also Planned Parenthood Assn. of Kansas City, Mo., Inc.
v. Ashcroft, supra, at 690, n. 6 (discussing testimony by Dr.
Willard Cates, Chief of Federal Abortion Surveillance for the
National Centers for Disease Control, that D&E second trimester
abortions are as safely performed outside of hospitals up to the
16th week); APHA Recommended Guide 654 (outpatient D&E is safer
than all in-hospital non-D&E abortion procedures during the
second trimester).
[
Footnote 26]
At trial, Akron relied largely on the former position of the
various medical organizations concerning hospitalization during the
second trimester.
See 651 F.2d at 1209. The revised
position of the ACOG did not occur until after trial.
Akron also argues that the safety of nonhospital D&E
abortions depends on adherence to minimum standards such as those
adopted by ACOG for free-standing surgical facilities,
see
ACOG Standards 51-62, and that there is no evidence that
plaintiffs' clinics operate in this manner. But the issue in this
litigation is not whether these clinics would meet such standards
if they were prescribed by the city. Rather, Akron has gone much
further by banning all second trimester abortions in all clinics, a
regulation that does not reasonably further the city's interest in
promoting health. We continue to hold, as we did in
Doe v.
Bolton, that a State may,
"from and after the end of the first trimester, adopt standards
for licensing all facilities where abortions may be performed so
long as those standards are legitimately related to the objective
the State seeks to accomplish."
410 U.S. at
410 U. S.
194-195. This includes standards designed to correct any
deficiencies that Akron reasonably believes exist in the clinics'
present operation.
[
Footnote 27]
The city thus implies that its hospital requirement may be
sustained because it is reasonable as applied to later D&E
abortions or to all second trimester instillation abortions. We do
not hold today that a State in no circumstances may require that
some abortions be performed in a full-service hospital. Abortions
performed by D&E are much safer, up to a point in the
development of the fetus, than those performed by instillation
methods.
See Cates & Grimes, Morbidity and Mortality,
published in Second trimester Abortion 166-169. The evidence before
us as to the need for hospitalization concerns only the D&E
method performed in the early weeks of the second trimester.
See 651 F.2d at 1208-1210.
[
Footnote 28]
In the United States during 1978, 82.1% of all abortions from
13-15 weeks and 24.6% of all abortions from 16-20 weeks were
performed by the D&E method.
See Department of Health
and Human Services, Centers for Disease Control, Abortion
Surveillance: Annual Summary 1978, Table 14, p. 43 (1980).
[
Footnote 29]
The Court of Appeals upheld § 1870.05(A)'s notification
requirement.
See 651 F.2d at 1206. The validity of this
ruling has not been challenged in this Court.
[
Footnote 30]
The Court's primary holding in
Matheson was that the
pregnant minor who questioned Utah's abortion consent requirement
on the ground that it impermissibly applied to mature or
emancipated minors lacked standing to raise that argument, since
she had not alleged that she or any member of her class was mature
or emancipated. 450 U.S. at
450 U. S. 406.
No such standing problem exists here, however, as the physician
plaintiff, who is subject to potential criminal liability for
failure to comply with the requirements of § 1870.05(B), has
standing to raise the claims of his minor patients.
See
Danforth, 428 U.S. at
428 U. S. 62;
Doe v. Bolton, 410 U.S. at
410 U. S.
188-189;
Bellotti II, 443 U.S. at
443 U. S. 627,
n. 5 (plurality opinion).
[
Footnote 31]
The Ohio Juvenile Court has jurisdiction over any child "alleged
to be a juvenile traffic offender, delinquent, unruly, abused,
neglected, or dependent." Ohio Rev.Code Ann. § 2151.23 (Supp.1982).
The only category that arguably could encompass a pregnant minor
desiring an abortion would be the "neglected" child category. A
neglected child is defined as one
"[w]hose parents, guardian or custodian neglects or refuses to
provide him with proper or necessary subsistence, education,
medical or surgical care, or other care necessary for his health,
morals, or wellbeing."
§ 2151.03. Even assuming that the Ohio courts would construe
these provisions as permitting a minor to obtain judicial approval
for the "proper or necessary . . . medical or surgical care" of an
abortion, where her parents had refused to provide that care, the
statute makes no provision for a mature or emancipated minor
completely to avoid hostile parental involvement by demonstrating
to the satisfaction of the court that she is capable of exercising
her constitutional right to choose an abortion. On the contrary,
the statute requires that the minor's parents be notified once a
petition has been filed, § 2151.28, a requirement that, in the case
of a mature minor seeking an abortion, would be unconstitutional.
See H. L. v. Matheson, 450 U.S. at
450 U. S. 420
(POWELL, J., concurring);
id. at
450 U. S. 428,
n. 3 (MARSHALL,J., dissenting).
[
Footnote 32]
In particular, we have emphasized that a State's interest in
protecting immature minors and in promoting family integrity gives
it a special interest in ensuring that the abortion decision is
made with understanding and after careful deliberation.
See,
e.g., H. L. v. Matheson, 450 U.S. at
450 U. S. 411;
id. at
450 U. S.
419-420 (POWELL,J., concurring);
id. at
450 U. S.
421-424 (STEVENS,J., concurring in judgment).
[
Footnote 33]
A State is not always foreclosed from asserting an interest in
whether pregnancies end in abortion or childbirth. In
Maher v.
Roe, 432 U. S. 464
(1977), and
Harris v. McRae, 448 U.
S. 297 (1980), we upheld governmental spending statutes
that reimbursed indigent women for childbirth, but not abortion.
This legislation to further an interest in preferring childbirth
over abortion was permissible, however, only because it did not add
any "restriction on access to abortions that was not already
there."
Maher, supra, at
448 U. S.
474.
[
Footnote 34]
This description must include, but not be limited to,
"appearance, mobility, tactile sensitivity, including pain,
perception or response, brain and heart function, the presence of
internal organs and the presence of external members."
The District Court found that "there was much evidence that it
is impossible to determine many of [these] items, . . . such as the
unborn child's' sensitivity to pain." 479 F. Supp. at
1203.
[
Footnote 35]
The District Court found that
"there was much evidence that, rather than being 'a major
surgical procedure,' as the physician is required to state . . . ,
an abortion generally is considered a 'minor surgical
procedure.'"
Ibid.
[
Footnote 36]
Section 1870.06(B)(5) requires the physician to state
"[t]hat abortion is a major surgical procedure which can result
in serious complications, including hemorrhage, perforated uterus,
infection, menstrual disturbances, sterility and miscarriage and
prematurity in subsequent pregnancies; and that abortion may leave
essentially unaffected or may worsen any existing psychological
problems she may have and can result in severe emotional
disturbances."
[
Footnote 37]
Akron has made little effort to defend the constitutionality of
§ 1870.06(B)(3), (4), and (5), but argues that the remaining four
subsections of the provision are valid and severable. These four
subsections require that the patient be informed by the attending
physician of the fact that she is pregnant, § 1870.06(B)(1), the
gestational age of the fetus, § 1807.06(B)(2), the availability of
information on birth control and adoption, § 1870.06(B)(6), and the
availability of assistance during pregnancy and after childbirth, §
1870.06(B)(7). This information, to the extent it is accurate,
certainly is not objectionable, and probably is routinely made
available to the patient. We are not persuaded, however, to sever
these provisions from the remainder of § 1870.06(B). They require
that all of the information be given orally by the attending
physician when much, if not all of it, could be given by a
qualified person assisting the physician.
See infra at
462 U. S.
448-449.
[
Footnote 38]
We do not suggest that appropriate counseling consists simply of
a recital of pertinent medical facts. On the contrary, it is clear
that the needs of patients for information and an opportunity to
discuss the abortion decision will vary considerably. It is not
disputed that individual counseling should be available for those
persons who desire or need it.
See, e.g., National
Abortion Federation Standards 1 (1981) (hereinafter NAF Standards);
Planned Parenthood of Metropolitan Washington, D.C. Inc.,
Guidelines for Operation, Maintenance, and Evaluation of First
Trimester Outpatient Abortion Facilities 5 (1980). Such an
opportunity may be especially important for minors alienated or
separated from their parents.
See APHA Recommended Guide
654. Thus, for most patients, mere provision of a printed statement
of relevant information is not counseling.
[
Footnote 39]
This Court's consistent recognition of the critical role of the
physician in the abortion procedure has been based on the model of
the competent, conscientious, and ethical physician.
See
Doe, 410 U.S. at
410 U. S.
196-197. We have no occasion in this case to consider
conduct by physicians that may depart from this model.
Cf.
Danforth, 428 U.S. at
428 U. S. 91-92. n. 2 (Stewart, J., concurring).
[
Footnote 40]
Cf. ACOG Standards 54 ("If counseling has been provided
elsewhere, the physician performing the abortion should verify that
the counseling has taken place").
[
Footnote 41]
The importance of well-trained and competent counselors is not
in dispute.
See, e.g., APHA Recommended Guide 654
("Abortion counselors may be highly skilled physicians as well as
trained, sympathetic individuals working under appropriate
supervision"); NAF Standards 2 (counselors must be trained
initially at least in the following subjects: "sexual and
reproductive health; abortion technology; contraceptive technology;
short-term counseling skills; community resources and referrals;
informed consent; agency policies and practices").
[
Footnote 42]
This provision does not apply if the physician certifies in
writing that
"there is an emergency need for an abortion to be performed or
induced such that continuation of the pregnancy poses an immediate
threat and grave risk to the life or physical health of the
pregnant woman."
§ 1879.12.
[
Footnote 43]
The ACOG recommends that a clinic allow "sufficient time for
reflection prior to making an informed decision." ACOG Standards
54. In contrast to § 1870.07's mandatory waiting period, this
standard recognizes that the time needed for consideration of the
decision varies depending on the particular situation of the
patient and how much prior counseling she has received.
[
Footnote 44]
In
Fitzpatrick, the District Court accepted
Pennsylvania's contention that its statute governing the "humane"
disposal of fetal remains was designed only to prevent such
"mindless dumping." That decision is distinguishable because the
statute did not impose criminal liability, but merely provided for
the promulgation of regulations to implement the disposal
requirement.
See 401 F. Supp. at 572-573.
[
Footnote 45]
We are not persuaded by Akron's argument that the word "humane"
should be severed from the statute. The uncertain meaning of the
phrase "humane and sanitary" leaves doubt as to whether the city
would have enacted § 1870.16 with the word "sanitary" alone. Akron
remains free, of course, to enact more carefully drawn regulations
that further its legitimate interest in proper disposal of fetal
remains.
JUSTICE O'CONNOR, with whom JUSTICE WHITE and JUSTICE REHNQUIST
join, dissenting.
In
Roe v. Wade, 410 U. S. 113
(1973), the Court held that the
"right of privacy . . . founded in the Fourteenth Amendment's
concept of personal liberty and restrictions upon state action . .
. is broad enough to encompass a woman's decision whether or not to
terminate her pregnancy."
Id. at
410 U. S. 153.
The parties in these cases have not asked the Court to reexamine
the validity of that holding, and the court below did not address
it. Accordingly, the Court does not reexamine its previous holding.
Nonetheless, it is apparent from the Court's opinion that neither
sound constitutional theory nor our need to decide cases based on
the application of neutral principles can accommodate an analytical
framework that varies according to the "stages" of pregnancy, where
those stages, and their concomitant standards of review, differ
according to the level of medical technology available when a
particular challenge to state regulation occurs. The Court's
analysis of the Akron regulations is inconsistent both with
Page 462 U. S. 453
the methods of analysis employed in previous cases dealing with
abortion, and with the Court's approach to fundamental rights in
other areas.
Our recent cases indicate that a regulation imposed on "a lawful
abortion
is not unconstitutional unless it unduly burdens the
right to seek an abortion.'" Maher v. Roe, 432 U.
S. 464, 432 U. S. 473
(1977) (quoting Bellotti v. Baird, 428 U.
S. 132, 428 U. S. 147
(1977) (Bellotti I)). See also Harris v. McRae,
448 U. S. 297,
448 U. S. 314
(1980). In my view, this "unduly burdensome" standard should be
applied to the challenged regulations throughout the entire
pregnancy without reference to the particular "stage" of pregnancy
involved. If the particular regulation does not "unduly burde[n]"
the fundamental right, Maher, supra, at 432 U. S. 473,
then our evaluation of that regulation is limited to our
determination that the regulation rationally relates to a
legitimate state purpose. Irrespective of what we may believe is
wise or prudent policy in this difficult area,
"the Constitution does not constitute us as 'Platonic
Guardians,' nor does it vest in this Court the authority to strike
down laws because they do not meet our standards of desirable
social policy, 'wisdom,' or 'common sense.'"
Plyler v. Doe, 457 U. S. 202,
457 U. S. 242
(1982) (BURGER, C.J., dissenting).
I
The trimester or "three-stage" approach adopted by the Court in
Roe, [
Footnote 2/1] and,
in a modified form, employed by the
Page 462 U. S. 454
Court to analyze the regulations in these cases, cannot be
supported as a legitimate or useful framework for accommodating the
woman's right and the State's interests. The decision of the Court
today graphically illustrates why the trimester approach is a
completely unworkable method of accommodating the conflicting
personal rights and compelling state interests that are involved in
the abortion context.
As the Court indicates today, the State's compelling interest in
maternal health changes as medical technology changes, and any
health regulation must not "depart from accepted medical practice."
Ante at
462 U. S. 431.
[
Footnote 2/2] In applying this
standard, the Court holds that "the safety of second trimester
abortions has increased dramatically" since 1973, when
Page 462 U. S. 455
Roe was decided.
Ante at
462 U. S.
435-436 (footnote omitted). Although a regulation such
as one requiring that all second trimester abortions be performed
in hospitals "had strong support" in 1973 "as a reasonable health
regulation,"
ante at
462 U. S. 435,
this regulation can no longer stand because, according to the
Court's diligent research into medical and scientific literature,
the dilation and evacuation (D&E) procedure, used in 1973 only
for first trimester abortions, "is now widely and successfully used
for second trimester abortions."
Ante at
462 U. S. 436
(footnote omitted). Further, the medical literature relied on by
the Court indicates that the D&E procedure may be performed in
an appropriate nonhospital setting for "at least . . . the early
weeks of the second trimester. . . ."
Ante at
462 U. S. 437.
The Court then chooses the period of 16 weeks of gestation as that
point at which D&E procedures may be performed safely in a
nonhospital setting, and thereby invalidates the Akron
hospitalization regulation.
It is not difficult to see that, despite the Court's purported
adherence to the trimester approach adopted in
Roe, the
lines drawn in that decision have now been "blurred" because of
what the Court accepts as technological advancement in the safety
of abortion procedure. The State may no longer rely on a "bright
line" that separates permissible from impermissible regulation, and
it is no longer free to consider the second trimester as a unit and
weigh the risks posed by all abortion procedures throughout that
trimester. [
Footnote 2/3]
Rather,
Page 462 U. S. 456
the State must continuously and conscientiously study
contemporary medical and scientific literature in order to
determine whether the effect of a particular regulation is to
"depart from accepted medical practice" insofar as particular
procedures and particular periods within the trimester are
concerned. Assuming that legislative bodies are able to engage in
this exacting task, [
Footnote 2/4]
it is difficult to believe that our Constitution
requires
that they do it as a prelude to protecting the health of their
citizens. It is even more difficult to believe that this Court,
without the resources available to those bodies entrusted with
making legislative choices, believes itself competent to make these
inquiries and to revise these standards every time the American
College of Obstetricians and Gynecologists (ACOG) or similar group
revises its views about what is and what is not appropriate medical
procedure in this area. Indeed, the ACOG Standards on which the
Court relies were changed in 1982, after trial in the present
cases. Before ACOG changed its Standards in 1982, it recommended
that all mid-trimester abortions be performed in a hospital.
See 651 F.2d 1198, 1209 (CA6 1981). As today's decision
indicates, medical technology is changing, and this change will
necessitate our continued functioning as the Nation's
"
ex officio medical board, with powers to approve or
disapprove medical and operative practices and standards throughout
the United States."
Planned Parenthood of Central Missouri v. Danforth,
428 U. S. 52,
428 U. S. 99
(1976) (WHITE, J., concurring in part and dissenting in part).
Just as improvements in medical technology inevitably will move
forward the point at which the State may regulate for
reasons of maternal health, different technological improvements
will move
backward the point of viability at which the
Page 462 U. S. 457
State may proscribe abortions except when necessary to preserve
the life and health of the mother.
In 1973, viability before 28 weeks was considered unusual. The
14th edition of L. Hellman & J. Pritchard, Williams Obstetrics
(1971), on which the Court relied in
Roe for its
understanding of viability, stated, at 493, that "[a]ttainment of a
[fetal] weight of 1,000 g [or a fetal age of approximately 28
weeks' gestation] is . . . widely used as the criterion of
viability." However, recent studies have demonstrated increasingly
earlier fetal viability. [
Footnote
2/5] It is certainly reasonable to believe that fetal viability
in the first trimester of pregnancy may be possible in the not too
distant future. Indeed, the Court has explicitly acknowledged that
Roe left the point of viability "flexible for anticipated
advancements in medical skill."
Colautti v. Franklin,
439 U. S. 379,
439 U. S. 387
(1979).
"[W]e recognized in
Roe that viability was a matter of
medical
Page 462 U. S. 458
judgment, skill, and technical ability, and we preserved the
flexibility of the term."
Danforth, supra, at
428 U. S.
64.
The
Roe framework, then, is clearly on a collision
course with itself. As the medical risks of various abortion
procedures decrease, the point at which the State may regulate for
reasons of maternal health is moved further forward to actual
childbirth. As medical science becomes better able to provide for
the separate existence of the fetus, the point of viability is
moved further back toward conception. Moreover, it is clear that
the trimester approach violates the fundamental aspiration of
judicial decisionmaking through the application of neutral
principles "sufficiently absolute to give them roots throughout the
community and continuity over significant periods of time. . . ."
A. Cox, The Role of the Supreme Court in American Government 114
(1976). The
Roe framework is inherently tied to the state
of medical technology that exists whenever particular litigation
ensues. Although legislatures are better suited to make the
necessary factual judgments in this area, the Court's framework
forces legislatures, as a matter of constitutional law, to
speculate about what constitutes "accepted medical practice" at any
given time. Without the necessary expertise or ability, courts must
then pretend to act as science review boards and examine those
legislative judgments.
The Court adheres to the
Roe framework because the
doctrine of
stare decisis "demands respect in a society
governed by the rule of law."
Ante at
462 U. S. 420.
Although respect for
stare decisis cannot be challenged,
"this Court's considered practice [is] not to apply
stare
decisis as rigidly in constitutional as in nonconstitutional
cases."
Glidden Co. v. Zdanok, 370 U.
S. 530,
370 U. S. 543
(1962). Although we must be mindful of the
"desirability of continuity of decision in constitutional
questions . . . when convinced of former error, this Court has
never felt constrained to follow precedent. In constitutional
questions, where correction depends upon amendment, and not upon
legislative action this Court throughout its history
Page 462 U. S. 459
has freely exercised its power to reexamine the basis of its
constitutional decisions."
Smith v. Allwright, 321 U. S. 649,
321 U. S. 665
(1944) (footnote omitted).
Even assuming that there is a fundamental right to terminate
pregnancy in some situations, there is no justification in law or
logic for the trimester framework adopted in
Roe and
employed by the Court today on the basis of
stare decisis.
For the reasons stated above, that framework is clearly an
unworkable means of balancing the fundamental right and the
compelling state interests that are indisputably implicated.
II
The Court in
Roe correctly realized that the State has
important interests "in the areas of health and medical standards"
and that
"[t]he State has a legitimate interest in seeing to it that
abortion, like any other medical procedure, is performed under
circumstances that insure maximum safety for the patient."
410 U.S. at
410 U. S.
149-150. The Court also recognized that the State has
"
another important and legitimate interest in protecting
the potentiality of human life."
Id. at
410 U. S. 162
(emphasis in original). I agree completely that the State has these
interests, but, in my view, the point at which these interests
become compelling does not depend on the trimester of pregnancy.
Rather, these interests are present
throughout
pregnancy.
This Court has never failed to recognize that "a State may
properly assert important interests in safeguarding health [and] in
maintaining medical standards."
Id. at
410 U. S. 154.
It cannot be doubted that, as long as a state statute is within
"the bounds of reason and [does not] assum[e] the character of a
merely arbitrary fiat . . . , [then] [t]he State . . . must decide
upon measures that are needful for the protection of its people. .
. ."
Purity Extract and Tonic Co. v. Lynch, 226 U.
S. 192,
226 U. S.
204-205 (1912). "There is nothing in the United States
Constitution which limits the State's power to require that medical
procedures be done safely. . . ."
Sendak v.
Page 462 U. S. 460
Arnold, 429 U.S. 968, 969 (1976) (WHITE, J.,
dissenting). "The mode and procedure of medical diagnostic
procedures is not the business of judges."
Parham v. J.
R., 442 U. S. 584,
442 U. S.
607-608 (1979). Under the
Roe framework,
however, the state interest in maternal health cannot become
compelling until the onset of the second trimester of pregnancy,
because "until the end of the first trimester, mortality in
abortion may be less than mortality in normal childbirth." 410 U.S.
at
410 U. S. 163.
Before the second trimester, the decision to perform an abortion
"must be left to the medical judgment of the pregnant woman's
attending physician."
Id. at
410 U. S. 164.
[
Footnote 2/6]
The fallacy inherent in the
Roe framework is apparent:
just because the State has a compelling interest in ensuring
maternal safety once an abortion may be more dangerous than
childbirth, it simply does not follow that the State has no
interest before that point that justifies state regulation to
ensure that first trimester abortions are performed as safely as
possible. [
Footnote 2/7]
The state interest in potential human life is likewise extant
throughout pregnancy. In
Roe, the Court held that,
Page 462 U. S. 461
although the State had an important and legitimate interest in
protecting potential life, that interest could not become
compelling until the point at which the fetus was viable. The
difficulty with this analysis is clear:
potential life is
no less potential in the first weeks of pregnancy than it is at
viability or afterward. At any stage in pregnancy, there is the
potential for human life. Although the Court refused to
"resolve the difficult question of when life begins,"
id.
at
410 U. S. 159,
the Court chose the point of viability -- when the fetus is
capable of life independent of its mother -- to permit the
complete proscription of abortion. The choice of viability as the
point at which the state interest in
potential life
becomes compelling is no less arbitrary than choosing any point
before viability or any point afterward. Accordingly, I believe
that the State's interest in protecting potential human life exists
throughout the pregnancy.
III
Although the State possesses compelling interests in the
protection of potential human life and in maternal health
throughout pregnancy, not every regulation that the State imposes
must be measured against the State's compelling interests and
examined with strict scrutiny. This Court has acknowledged that
"the right in
Roe v. Wade can be understood only by
considering both the woman's interest and the nature of the State's
interference with it.
Roe did not declare an unqualified
'constitutional right to an abortion.' . . . Rather, the right
protects the woman from unduly burdensome interference with her
freedom to decide whether to terminate her pregnancy."
Maher, 432 U.S. at
432 U. S.
473-474. The Court and its individual Justices have
repeatedly utilized the "unduly burdensome" standard in abortion
cases. [
Footnote 2/8]
Page 462 U. S. 462
The requirement that state interference "infringe substantially"
or "heavily burden" a right before heightened scrutiny is applied
is not novel in our fundamental-rights jurisprudence, or restricted
to the abortion context. In
San Antonio Independent School
District v. Rodriguez, 411 U. S. 1,
411 U. S. 37-38
(1973), we observed that we apply "strict judicial scrutiny" only
when legislation may be said to have "
deprived,' `infringed,'
or `interfered' with the free exercise of some such fundamental
personal right or liberty." If the impact of the regulation does
not rise to the level appropriate for our strict scrutiny, then our
inquiry is limited to whether the state law bears "some rational
relationship to legitimate state purposes." Id. at
411 U. S. 40.
Even in the First Amendment context, we have required in some
circumstances that state laws "infringe substantially" on protected
conduct, Gibson v. Florida Legislative Investigation
Committee, 372 U. S. 539,
372 U. S.
545
Page 462 U. S. 463
(1963), or that: there be "a significant encroachment upon
personal liberty,"
Bates v. City of Little Rock,
361 U. S. 516,
361 U. S. 524
(1960).
In
Carey v. Population Services International,
431 U. S. 678
(1977), we eschewed the notion that state law had to meet the
exacting "compelling state interest" test "
whenever it
implicates sexual freedom.'" Id. at 431 U. S. 688,
n. 5. Rather, we required that, before the "strict scrutiny"
standard was employed, it was necessary that the state law
"impos[e] a significant burden" on a protected right, id.
at 431 U. S. 689,
or that it
"burden an individual's right to decide to prevent conception or
terminate pregnancy by
substantially limiting access to
the means of effectuating that decision. . . ."
Id. at
431 U. S. 688
(emphasis added). The Court stressed that "even a burdensome
regulation may be validated by a sufficiently compelling state
interest."
Id. at
431 U. S. 686. Finally,
Griswold v.
Connecticut, 381 U. S. 479,
381 U. S. 485
(1965), recognized that a law banning the use of contraceptives by
married persons had "a maximum destructive impact" on the marital
relationship.
Indeed, the Court today follows this approach. Although the
Court does not use the expression "undue burden," the Court
recognizes that even a "significant obstacle" can be justified by a
"reasonable" regulation.
See ante at
462 U. S. 434,
462 U. S. 435,
462 U. S.
438.
The "undue burden" required in the abortion cases represents the
required threshold inquiry that must be conducted before this Court
can require a State to justify its legislative actions under the
exacting "compelling state interest" standard.
"[A] test so severe that legislation rarely can meet it should
be imposed by courts with deliberate restraint in view of the
respect that properly should be accorded legislative
judgments."
Carey, supra, at
431 U. S. 705
(POWELL, J., concurring in part and concurring in judgment).
The "unduly burdensome" standard is particularly appropriate in
the abortion context because of the
nature and
scope of the right that is involved. The privacy right
involved in the abortion context "cannot be said to be absolute."
Roe,
Page 462 U. S. 464
410 U.S. at
410 U. S. 154.
"
Roe did not declare an unqualified
constitutional
right to an abortion.'" Maher, 432 U.S. at 432 U. S. 473.
Rather, the Roe right is intended to protect against state
action "drastically limiting the availability and safety of the
desired service," id. at 432 U. S. 472,
against the imposition of an "absolute obstacle" on the abortion
decision, Danforth, 428 U.S. at 428 U. S. 70-71,
n. 11, or against "official interference" and "coercive restraint"
imposed on the abortion decision, Harris, 448 U.S. at
448 U. S. 328
(WHITE,J., concurring). That a state regulation may "inhibit"
abortions to some degree does not require that we find that the
regulation is invalid. See H. L. v. Matheson, 450 U.
S. 398, 450 U. S. 413
(1981).
The abortion cases demonstrate that an "undue burden" has been
found for the most part in situations involving absolute obstacles
or severe limitations on the abortion decision In
Roe, the
Court invalidated a Texas statute that criminalized all abortions
except those necessary to save the life of the mother. In
Danforth, the Court invalidated a state prohibition of
abortion by saline anmiocentesis because the ban had "the effect of
inhibiting . . . the vast majority of abortions after the first 12
weeks." 428 U.S. at
428 U. S. 79.
The Court today acknowledges that the regulation in
Danforth effectively represented "a
complete
prohibition on abortions in certain circumstances."
Ante
at
462 U. S. 429,
n. 11 (emphasis added). In
Danforth, the Court also
invalidated state regulations requiring parental or spousal consent
as a prerequisite to a first trimester abortion because the consent
requirements effectively and impermissibly delegated a "veto power"
to parents and spouses during the first trimester of pregnancy. In
both
Bellotti I, 428 U. S. 132
(1977), and
Bellotti v. Baird, 443 U.
S. 622 (1979) (
Bellotti II), the Court was
concerned with effective parental veto over the abortion decision.
[
Footnote 2/9]
Page 462 U. S. 465
In determining whether the State imposes an "undue burden," we
must keep in mind that, when we are concerned with extremely
sensitive issues, such as the one involved here,
"the appropriate forum for their resolution in a democracy is
the legislature. We should not forget that 'legislatures are
ultimate guardians of the liberties and welfare of the people in
quite as great a degree as the courts.'
Missouri, K. & T.
R. Co. v. May, 194 U. S. 267,
194 U. S.
270 (1904) (Holmes, J.)."
Maher, 432 U.S. at
432 U. S.
479-480 (footnote omitted). This does not mean that, in
determining whether a regulation imposes an "undue burden" on the
Roe right, we defer to the judgments made by state
legislatures.
"The point is, rather, that, when we face a complex problem with
many hard questions and few easy answers, we do well to pay careful
attention to how the other branches of Government have addressed
the same problem."
Columbia Broadcasting System, Inc. v. Democratic National
Committee, 412 U. S. 94,
412 U. S. 103
(1973). [
Footnote 2/10]
Page 462 U. S. 466
We must always be mindful that
"[t]he Constitution does not compel a state to fine-tune its
statutes so as to encourage or facilitate abortions. To the
contrary, state action 'encouraging childbirth except in the most
urgent circumstances' is 'rationally related to the legitimate
governmental objective of protecting potential life.'
Harris v.
McRae, 448 U.S. at
448 U. S. 325.
Accord,
Maher v. Roe, supra, at
432 U. S.
473-474."
H. L. v. Matheson, supra, at
450 U. S. 413
(footnote omitted).
IV
Section 1870.03 of the Akron ordinance requires that second
trimester abortions be performed in hospitals. The Court holds that
this requirement imposes a "significant obstacle" in the form of
increased costs and decreased availability of abortions,
ante at
462 U. S.
434-435,
462 U. S. 435,
and the Court rejects the argument offered by the State that the
requirement is a reasonable health regulation under
Roe,
410 U.S. at
410 U. S. 163.
See ante at
462 U. S.
435-436.
For the reasons stated above, I find no justification for the
trimester approach used by the Court to analyze this restriction. I
would apply the "unduly burdensome" test, and find that the
hospitalization requirement does not impose an undue burden on that
decision.
The Court's reliance on increased abortion costs and decreased
availability is misplaced. As the city of Akron points out, there
is no evidence in this case to show that the two Akron hospitals
that performed second trimester abortions denied an abortion to any
woman, or that they would not permit abortion by the D&E
procedure.
See Reply Brief for Petitioner in No. 81-746,
p. 3. In addition, there was no evidence presented that other
hospitals in nearby areas did not provide second trimester
abortions. Further, almost any state regulation, including the
licensing requirements
Page 462 U. S. 467
that the Court
would allow,
see ante at
462 U. S.
437-438, n. 26, inevitably and necessarily entails
increased costs for
any abortion. In
Simopoulos v.
Virginia, post, p.
462 U. S. 506, the
Court upholds the State's stringent licensing requirements that
will clearly involve greater cost because the State's licensing
scheme "is not an unreasonable means of furthering the State's
compelling interest in" preserving maternal health.
Post
at
462 U. S. 519.
Although the Court acknowledges this indisputably correct notion in
Simopoulos, it inexplicably refuses to apply it in this
case. A health regulation, such as the hospitalization requirement,
simply does not rise to the level of "official interference" with
the abortion decision.
See Harris, supra, at
448 U. S. 328
(WHITE, J., concurring).
Health-related factors that may legitimately be considered by
the State go well beyond what various medical organizations have to
say about the
physical safety of a particular procedure.
Indeed, "all factors -- physical, emotional, psychological,
familial, and the woman's age -- [are] relevant to the wellbeing of
the patient."
Doe v. Bolton, 410 U.
S. 179,
410 U. S. 192
(1973). The ACOG Standards, upon which the Court relies, state
that
"[r]egardless of advances in abortion technology, midtrimester
terminations will likely remain more hazardous, expensive, and
emotionally disturbing for a woman than early abortions."
American College of Obstetricians and Gynecologists, Technical
Bulletin No. 56: Methods of Midtrimester Abortion 4 (Dec.1979).
The hospitalization requirement does not impose an undue burden,
and it is not necessary to apply an exacting standard of review.
Further, the regulation has a "rational relation" to a valid state
objective of ensuring the health and welfare of its citizens.
See Williamson v. Lee Optical Co., 348 U.
S. 483,
348 U. S. 491
(1955). [
Footnote 2/11]
Page 462 U. S. 468
B
Section 1870.05(B)(2) of the Akron ordinance provides that no
physician shall perform an abortion on a minor under 15 years of
age unless the minor gives written consent, and the physician first
obtains the informed written consent of a parent or guardian, or
unless the minor first obtains "an order from a court having
jurisdiction over her that the abortion be performed or induced."
Despite the fact that this regulation has yet to be construed in
the state courts, the Court holds that the regulation is
unconstitutional because it is not "reasonably susceptible of being
construed to create an
opportunity for case-by-case evaluations
of the maturity of pregnant minors.'" Ante at 462 U. S. 441
(quoting Bellotti II, 443 U.S. at 443 U. S.
643-644, n. 23 (plurality opinion)). I believe that the
Court should have abstained from declaring the ordinance
unconstitutional.
In
Bellotti I, the Court abstained from deciding
whether a state parental consent provision was unconstitutional
as
Page 462 U. S. 469
applied to mature minors. The Court recognized and respected the
well-settled rule that abstention is proper
"where an unconstrued state statute is susceptible of a
construction by the state judiciary 'which might avoid in whole or
in part the necessity for federal constitutional adjudication, or
at least materially change the nature of the problem.'"
428 U.S. at
428 U. S. 147
(quoting
Harrison v. NAACP, 360 U.
S. 167,
360 U. S. 177
(1959)). While acknowledging the force of the abstention doctrine,
see ante at
462 U. S.
440-441, the Court nevertheless declines to apply it.
Instead, it speculates that a state juvenile court
might
inquire into a minor's maturity and ability to decide to have an
abortion in deciding whether the minor is being provided
"
surgical care . . . necessary for his health, morals, or
wellbeing,'" ante at 462 U. S. 441,
n. 31 (quoting Ohio Rev.Code Ann. 2151.03 (1976)). The Court
ultimately rejects this possible interpretation of state law,
however, because filing a petition in juvenile court requires
parental notification, an unconstitutional condition insofar as
mature minors are concerned.
Assuming,
arguendo, that the Court is correct in
holding that a parental notification requirement would be
unconstitutional as applied to mature minors, [
Footnote 2/12] I see no reason to assume that the
Akron ordinance and the State Juvenile Court statute compel state
judges to notify the parents of a mature minor if such notification
was contrary to the minor's best interests. Further, there is no
reason to believe that the state
Page 462 U. S. 470
courts would construe the consent requirement to impose any type
of parental or judicial veto on the abortion decisions of mature
minors. In light of the Court's complete lack of knowledge about
how the Akron ordinance will operate, and how the Akron ordinance
and the State Juvenile Court statute interact, our "
scrupulous
regard for the rightful independence of state governments'"
counsels against
"unnecessary interference by the federal courts with proper and
validly administered state concerns, a course so essential to the
balanced working of our federal system."
Harrison v. NAACP, supra, at
360 U. S. 176
(quoting
Matthews v. Rodgers, 284 U.
S. 521,
284 U. S. 525
(1932)).
C
The Court invalidates the informed consent provisions of §
1879.06(B) and § 1879.06(C) of the Akron ordinance. [
Footnote 2/13] Although it finds that
subsections (1), (2), (6), and (7) of § 1879.06(B) are "certainly .
. . not objectionable,"
ante at
462 U. S.
445-446, n. 37, it refuses to sever those provisions
from subsections (3), (4), and (5) because the city requires that
the "acceptable" information be provided by the attending physician
when "much, if not all, of it could be given by a qualified person
assisting the physician,"
ibid. Despite the fact that the
Court finds that § 1879.06(C) "properly leaves the precise nature
and amount of . . . disclosure to the physician's discretion
Page 462 U. S. 471
and
medical judgment,'" ante at 462 U. S. 447,
the Court also finds § 1879.06(C) unconstitutional because it
requires that the disclosure be made by the attending physician,
rather than by other "qualified persons" who work at abortion
clinics.
We have approved informed consent provisions in the past even
though the physician was required to deliver certain information to
the patient. In
Danforth, the Court upheld a state
informed consent requirement because
"[t]he decision to abort, indeed, is an important, and often a
stressful one, and it is desirable and imperative that it be made
with full knowledge of its nature and consequences."
428 U.S. at 67. [
Footnote
2/14] In
H. L. v. Matheson, the Court noted that the
state statute in the case required that the patient
"be advised at a minimum about available adoption services,
about fetal development, and about foreseeable complications and
risks of an abortion.
See Utah Code Ann. 76-7-305 (1978).
In
Planned Parenthood of Central Mo. v. Danforth,
428 U. S.
52,
428 U. S. 65-67 (1976), we
rejected a constitutional attack on written consent
provisions."
450 U.S. at
450 U. S.
400-401, n. 1. Indeed, we have held that an informed
consent provision does not "unduly burde[n] the right to seek an
abortion."
Bellotti I, 428 U.S. at
428 U. S. 147.
[
Footnote 2/15]
The validity of subsections (3), (4), and (5) is not before the
Court, because it appears that the city of Akron conceded their
unconstitutionality before the court below.
See Brief
Page 462 U. S. 472
for City of Akron in No. 79-3757 (CA6), p. 35; Reply Brief for
City of Akron in No. 79-3757 (CA6), pp. 5-9. In my view, the
remaining subsections of § 1879.06(B) are separable from the
subsections conceded to be unconstitutional. Section 1870.19
contains a separability clause which creates a "
presumption of
divisibility,'" and places "the burden . . . on the litigant who
would escape its operation." Carter v. Carter Coal Co.,
298 U. S. 238,
298 U. S. 335
(1936) (opinion of Cardozo, J.). Akron Center has failed to show
that severance of subsections (3), (4), and (5) would "create a
program quite different from the one the legislature actually
adopted." Sloan v. Lemon, 413 U.
S. 825, 413 U. S. 834
(1973).
The remainder of § 1879.06(B), and § 1879.06(C), impose no undue
burden or drastic limitation on the abortion decision. The city of
Akron is merely attempting to ensure that the decision to abort is
made in light of that knowledge that the city deems relevant to
informed choice. As such, these regulations do not impermissibly
affect any privacy right under the Fourteenth Amendment. [
Footnote 2/16]
D
Section 1870.07 of the Akron ordinance requires a 24-hour
waiting period between the signing of a consent form and the actual
performance of the abortion, except in cases of emergency.
See § 1879.12. The court below invalidated this
requirement because it affected abortion decisions during the first
trimester of pregnancy. The Court affirms the decision below, not
on the ground that it affects early abortions, but because "Akron
has failed to demonstrate that any legitimate state interest is
furthered by an arbitrary and inflexible waiting
Page 462 U. S. 473
period."
Ante at
462 U. S. 450.
The Court accepts the arguments made by Akron Center that the
waiting period increases the costs of obtaining an abortion by
requiring the pregnant woman to make two trips to the clinic, and
increases the risks of abortion through delay and scheduling
difficulties. The decision whether to proceed should be left to the
physician's "
discretion in the exercise of his medical
judgment.'" Ibid. (quoting Colautti, 439 U.S. at
329 U. S.
387).
It is certainly difficult to understand how the Court believes
that the physician-patient relationship is able to accommodate any
interest that the State has in maternal physical and mental
wellbeing in light of the fact that the record in this case shows
that the relationship is nonexistent.
See 651 F.2d at 1217
(Kennedy, J., concurring in part and dissenting in part). It is
also interesting to note that the American College of Obstetricians
and Gynecologists recommends that,
"[p]rior to abortion, the woman should have access to special
counseling that explores options for the management of an unwanted
pregnancy, examines the risks, and allows sufficient time for
reflection prior to making an informed decision."
1982 ACOG Standards for Obstetric-Gynecologic Services at
54.
The waiting period does not apply in cases of medical emergency.
Therefore, should the physician determine that the waiting period
would increase risks significantly, he or she need not require the
woman to wait. The Court's concern in this respect is simply
misplaced. Although the waiting period may impose an additional
cost on the abortion decision, this increased cost does not unduly
burden the availability of abortions or impose an absolute obstacle
to access to abortions. Further, the State is not required to
"fine-tune" its abortion statutes so as to minimize the costs of
abortions.
H. L. v. Matheson, 450 U.S. at
450 U. S.
413.
Assuming,
arguendo, that any additional costs are such
as to impose an undue burden on the abortion decision, the State's
compelling interests in maternal physical and mental
Page 462 U. S. 474
health and protection of fetal life clearly justify the waiting
period. As we acknowledged in
Danforth, 428 U.S. at
428 U. S. 67,
the decision to abort is "a stressful one," and the waiting period
reasonably relates to the State's interest in ensuring that a woman
does not make this serious decision in undue haste. The decision
also has grave consequences for the fetus, whose life the State has
a compelling interest to protect and preserve. "[N]o other
[medical] procedure involves the purposeful termination of a
potential life."
Harris, 448 U.S. at
448 U. S. 325.
The waiting period is surely a small cost to impose to ensure that
the woman's decision is well considered in light of its certain and
irreparable consequences on fetal life, and the possible effects on
her own. [
Footnote 2/17]
E
Finally, § 1870.16 of the Akron ordinance requires that
"[a]ny physician who shall perform or induce an abortion upon a
pregnant woman shall insure that the remains of the unborn child
are disposed of in a humane and sanitary manner."
The Court finds this provision void for vagueness. I
disagree.
In
Planned Parenthood Assn. v.
Fitzpatrick, 401 F.
Supp. 554 (ED Pa.1975) (three-judge court),
summarily aff'd
sub nom. Franklin v. Fitzpatrick, 428 U.S. 901 (1976), the
District Court upheld a "humane disposal" provision against a
vagueness attack in light of the State's representation that the
intent of the Act "
is to preclude the mindless dumping
of
Page 462 U. S.
475
aborted fetuses onto garbage piles.'" 401 F. Supp. at 573.
The District Court held that different concerns would be implicated
if the statute were, at some point, determined to require
"expensive burial." Ibid. In the present cases, the city
of Akron has informed this Court that the intent of the "humane"
portion of its statute, as distinguished from the "sanitary"
portion, is merely to ensure that fetuses will not be "`dump[ed] .
. . on garbage piles.'" Brief for Petitioner in No. 81-746, p. 48.
In light of the fact that the city of Akron indicates no intent to
require that physicians provide "decent burials" for fetuses, and
that "humane" is no more vague than the term "sanitary," the
vagueness of which Akron Center does not question, I cannot
conclude that the statute is void for vagueness.
For the reasons set forth above, I dissent from the judgment of
the Court in these cases.
[
Footnote 2/1]
Roe recognized that the State possesses important and
legitimate interests in protecting maternal health and the
potentiality of human life. These "separate and distinct" interests
were held to grow "in substantiality as the woman approaches term
and, at a point during pregnancy, each becomes
compelling.'"
410 U.S. at 410 U. S.
162-163. The state interest in maternal health was said
to become compelling "at approximately the end of the first
trimester." Id. at 410 U. S. 163.
Before that time, "the abortion decision and its effectuation must
be left to the medical judgment of the pregnant woman's attending
physician." Id. at 410 U. S. 164.
After the end of the first trimester, "a State may regulate the
abortion procedure to the extent that the regulation reasonably
relates to the preservation and protection of maternal health."
Id. at 410 U. S. 163.
The Court noted that, "in the light of present medical knowledge .
. . , mortality in abortion may be less than mortality in normal
childbirth" during the first trimester of pregnancy.
Ibid.
The state interest in potential human life was held to become
compelling at "viability," defined by the Court as that point "at
which the fetus . . . [is] potentially able to live outside the
mother's womb, albeit with artificial aid."
Roe, 410 U.S.
at
410 U. S. 160
(footnote omitted). Based on the Court's review of the contemporary
medical literature, it placed viability at about 28 weeks, but
acknowledged that this point may occur as early as 24 weeks. After
viability is reached, the State may, according to
Roe,
proscribe abortion altogether, except when it is necessary to
preserve the life and health of the mother.
See id. at
410 U. S.
163-164. Since
Roe, the Court has held that
Roe "left the point [of viability] flexible for
anticipated advancements in medical skill."
Colautti v.
Franklin, 439 U. S. 379,
439 U. S. 387
(1979).
The Court has also identified a state interest in protection of
the young and "familial integrity" in the abortion context.
See, e.g., H. L. v. Matheson, 450 U.
S. 398,
450 U. S. 411
(1981).
[
Footnote 2/2]
Although the Court purports to retain the trimester approach as
"a reasonable legal framework for limiting" state regulatory
authority over abortions,
ante at
462 U. S. 429,
n. 11, the Court expressly abandons the
Roe view that the
relative rates of childbirth and abortion mortality are relevant
for determining whether second trimester regulations are reasonably
related to maternal health. Instead, the Court decides that a
health regulation must not "depart from accepted medical practice"
if it is to be upheld.
Ante at
462 U. S. 431.
The State must now "make a reasonable effort to limit the effect of
its regulations
to the period in the trimester during
which its health interest will be furthered."
Ante at
462 U. S. 434
(emphasis added).
[
Footnote 2/3]
The Court holds that the summary affirmance in
Gary-Northwest Indiana Women's Services, Inc. v.
Bowen, 496 F.
Supp. 894 (ND Ind.1980) (three-judge court),
aff'd sub nom.
Gary-Northwest Indiana Women's Services, Inc. v. Orr, 451 U.S.
934 (1981), is not, as the court below thought, binding precedent
on the hospitalization issue.
See ante at
462 U. S. 433,
n. 18. Although the Court reads
Gary-Northwest to be
decided on the alternative ground that the plaintiffs failed to
prove the safety of second trimester abortions,
ante at
462 U. S. 433,
n. 18, the Court simply ignores the fact that the District Court in
Gary-Northwest held that "
even if the plaintiffs
could prove birth more dangerous than early second trimester
D&E abortions," that would
not matter insofar as the
constitutionality of the regulations were concerned.
See 496 F.
Supp. at 903 (emphasis added).
[
Footnote 2/4]
Irrespective of the difficulty of the task, legislatures, with
their superior factfinding capabilities, are certainly better able
to make the necessary judgments than are courts.
[
Footnote 2/5]
One study shows that infants born alive with a gestational age
of less than 25 weeks and weight between 500 and 1,249 grams have a
20% chance of survival.
See Phillips, Little, Polivy,
& Lucey, Neonatal Mortality Risk for the Eighties: The
Importance of Birth Weight/Gestational Age Groups, 68 Pediatrics
122 (1981). Another recent comparative study shows that preterm
infants with a weight of 1,000 grams or less born in one hospital
had a 42% rate of survival. Kopelman, The Smallest Preterm Infants:
Reasons for Optimism and New Dilemmas, 132 Am.J.Diseases of
Children 461 (1978). An infant weighing 484 grams and having a
gestational age of 22 weeks at birth is now thriving in a Los
Angeles hospital, and the attending physician has stated that the
infant has a "95% chance of survival." Washington Post, Mar. 31,
1983, p. A2, col. 2. The aborted fetus in
Simopoulos v.
Virginia, post, p.
462 U. S. 506,
weighed 495 grams and had a gestational age of approximately 22
weeks.
Recent developments promise even greater success in overcoming
the various respiratory and immunological neonatal complications
that stand in the way of increased fetal viability.
See,
e.g., Beddis, Collins, Levy, Godfrey, & Silverman, New
Technique for Servo-Control of Arterial Oxygen Tension in Preterm
Infants, 54 Archives of Disease in Childhood 278 (1979).
"There is absolutely no question that in the current era there
has been a sustained and progressive improvement in the outlook for
survival of small premature infants."
Stern, Intensive Care of the Pre-Term Infant, 26 Danish
Med.Bull. 144 (1979).
[
Footnote 2/6]
Interestingly, the Court in
Planned Parenthood of Central
Missouri v. Danforth, 428 U. S. 52
(1976), upheld a recordkeeping requirement as well as the consent
provision even though these requirements were imposed on first
trimester abortions and although the State did not impose
comparable requirements on most other medical procedures.
See
id. at
428 U. S. 65-67,
428 U. S. 79-81.
Danforth, then, must be understood as a retreat from the
position ostensibly adopted in
Roe that the State had no
compelling interest in regulation during the first trimester of
pregnancy that would justify restrictions imposed on the abortion
decision.
[
Footnote 2/7]
For example, the 1982 ACOG Standards, on which the Court relies
so heavily in its analysis, provide that physicians performing
first trimester abortions in their offices should provide for
prompt emergency treatment or hospitalization in the event of any
complications.
See ACOG Standards, at 54. ACOG also
prescribes that certain equipment be available for office
abortions.
See id. at 57. I have no doubt that the State
has a compelling interest to ensure that these or other
requirements are met, and that this legitimate concern would
justify state regulation for health reasons even in the first
trimester of pregnancy.
[
Footnote 2/8]
See Bellotti v. Baird, 428 U.
S. 132,
428 U. S. 147
(1976) (
Bellotti I) (State may not "impose undue burdens
upon a minor capable of giving an informed consent." In
Bellotti I, the Court left open the question whether a
judicial hearing would unduly burden the
Roe right of an
adult woman.
See 428 U.S. at
428 U. S.
147);
Bellotti v. Baird, 443 U.
S. 622,
443 U. S. 640
(1979) (
Bellotti II) (opinion of POWELL, J.) (State may
not "unduly burden the right to seek an abortion");
Harris v.
McRae, 448 U. S. 297,
448 U. S. 314
(1980) ("The doctrine of
Roe v. Wade, the Court held in
Maher, protects the woman from unduly burdensome
interference with her freedom to decide whether to terminate her
pregnancy,' [432 U.S.] at 432 U. S.
473-474, such as the severe criminal sanctions at issue
in Roe v. Wade, supra, or the absolute requirement of
spousal consent for an abortion challenged in Planned
Parenthood of Central Missouri v. Danforth,
428 U. S. 52");
Beal v. Doe, 432 U. S. 438,
432 U. S. 446
(1977) (The state interest in protecting potential human life "does
not, at least until approximately the third trimester, become
sufficiently compelling to justify unduly burdensome state
interference . . . "); Carey v. Population Services
International, 431 U. S. 678,
431 U. S. 705
(1977) (POWELL, J., concurring in part and concurring in judgment)
("In my view, [Roe and Griswold v. Connecticut,
381 U. S. 479
(1965),] make clear that the [compelling state interest] standard
has been invoked only when the state regulation entirely frustrates
or heavily burdens the exercise of constitutional rights in this
area. See Bellotti v. Baird, 428 U.
S. 132, 428 U. S. 147
(1976)"). Even though the Court did not explicitly use the "unduly
burdensome" standard in evaluating the informed consent requirement
in Planned Parenthood of Central Missouri v. Danforth,
supra, the informed consent requirement for first trimester
abortions in Danforth was upheld because it did not
"unduly burde[n] the right to seek an abortion." Bellotti I,
supra, at 428 U. S.
147.
[
Footnote 2/9]
The only case in which the Court invalidated regulations that
were not "undue burdens" was
Doe v. Bolton, 410 U.
S. 179 (1973), which was decided on the same day as
Roe. In
Doe, the Court invalidated a
hospitalization requirement because it covered first trimester
abortion. The Court also invalidated a hospital accreditation
requirement, a hospital committee approval requirement, and a
two-doctor concurrence requirement. The Court clearly based its
disapproval of these requirements on the fact that the State did
not impose them on any other medical procedure apart from abortion.
But the Court subsequent to
Doe has expressly rejected the
view that differential treatment of abortion requires invalidation
of regulations.
See Danforth, 428 U.S. at
428 U. S. 67,
428 U. S. 80-81;
Maher v. Roe, 432 U. S. 464,
432 U. S. 480
(1977);
Harris, 448 U.S. at
448 U. S. 325.
See also Planned Parenthood Assn. of Kansas City, Mo., Inc. v.
Ashcroft, post, p.
462 U. S. 476.
[
Footnote 2/10]
In his
amicus curiae brief in support of the city of
Akron, the Solicitor General of the United States argues that we
should adopt the "unduly burdensome" standard, and, in doing so, we
should "accord heavy deference to the legislative judgment" in
determining what constitutes an "undue burden."
See Brief
for the United States as
Amicus Curiae 10. The "unduly
burdensome" standard is appropriate not because it incorporates
deference to legislative judgment at the threshold stage of
analysis, but rather because of the limited
nature of the
fundamental right that has been recognized in the abortion cases.
Although our cases do require that we "pay careful attention" to
the legislative judgment before we invoke strict scrutiny,
see
e.g, Columbia Broadcasting System, Inc. v. Democratic National
Committee, 412 U.S. at
412 U. S. 103,
it is not appropriate to weigh the state interests at the threshold
stage.
[
Footnote 2/11]
The Court has never required that state regulation that burdens
the abortion decision be "narrowly drawn" to express only the
relevant state interest. In
Roe, the Court mentioned
"narrowly drawn" legislative enactments, 410 U.S. at
410 U. S. 155,
but the Court never actually adopted this standard in the
Roe analysis. In its decision today, the Court fully
endorses the
Roe requirement that a burdensome health
regulation, or as the Court appears to call it, a "significant
obstacle,"
ante at
462 U. S. 434,
be "reasonably related" to the state compelling interest.
See
ante at
462 U. S.
430-431,
462 U. S. 435,
462 U. S. 438.
The Court recognizes that "[a] State necessarily must have latitude
in adopting regulations of general applicability in this sensitive
area."
Ante at
462 U. S. 434.
See also Simopoulos v. Virginia, post at
462 U. S. 516.
Nevertheless, the Court fails to apply the "reasonably related"
standard. The hospitalization requirement "reasonably relates" to
its compelling interest in protection and preservation of maternal
health under any normal understanding of what "reasonably relates"
signifies.
The Court concludes that the regulation must fall because "it
appears that during a substantial portion of the second trimester
the State's regulation
depart[s] from accepted medical
practice.'" Ante at 462 U. S. 434.
It is difficult to see how the Court concludes that the regulation
"depart[s] from accepted medical practice" during "a substantial
portion of the second trimester," ibid., in light of the
fact that the Court concludes that D&E abortions may be
performed safely in an outpatient clinic through 16 weeks, or 4
weeks into the second trimester. Ante at 462 U. S.
436-437. Four weeks is hardly a "substantial portion" of
the second trimester.
[
Footnote 2/12]
In my view, no decision of this Court has yet held that parental
notification in the case of mature minors is unconstitutional.
Although the plurality opinion of JUSTICE POWELL in
Bellotti
II suggested that the state statute in that case was
unconstitutional because,
inter alia, it failed to provide
all minors with an opportunity "to go directly to a court
without first consulting or notifying her parents," 443 U.S. at
443 U. S. 647,
the Court in
H. L. v. Matheson held that
unemancipated
and immature minors had "no constitutional right to notify a
court in lieu of notifying their parents." 450 U.S. at
450 U. S. 412,
n. 22. Furthermore, the Court in
H. L. v. Matheson
expressly did
not decide that a parental notification
requirement would be unconstitutional if the State otherwise
permitted
mature minors to make abortion decisions free of
parental or judicial "veto."
See id. at
450 U. S.
406-407.
[
Footnote 2/13]
Section 1870.06(B) requires that the attending physician orally
inform the pregnant woman: (1) that she is pregnant; (2) of the
probable number of weeks since conception; (3) that the unborn
child is a human being from the moment of conception, and has
certain anatomical and physiological characteristics; (4) that the
unborn child may be viable and, if so, the physician has a legal
responsibility to try to save the child; (5) that abortion is a
major surgical procedure that can result in serious physical and
psychological complications; (6) that various agencies exist that
will provide the pregnant woman with information about birth
control; and (7) that various agencies exist that will assist the
woman through pregnancy should she decide not to undergo the
abortion. Section 1870.06(C) requires the attending physician to
inform the woman of risks associated with her particular pregnancy
and proposed abortion technique, as well as to furnish information
that the physician deems relevant "in his own medical
judgment."
[
Footnote 2/14]
The Court in
Danforth did not even view the informed
consent requirement as having a "legally significant impact" on
first trimester abortions that would trigger the
Roe and
Doe proscriptions against state interference in the
decision to seek a first trimester abortion.
See 428 U.S.
at
428 U. S. 81
(recordkeeping requirements).
[
Footnote 2/15]
Assuming,
arguendo, that the Court now decides that
Danforth, Bellotti II, and
H. L. v. Matheson were
incorrect, and that the informed consent provisions do burden the
right to seek an abortion, the Court inexplicably refuses to
determine whether this "burden" "reasonably relates" to legitimate
state interests.
Ante at
462 U. S. 430
(quoting
Roe, 410 U.S. at
410 U. S.
163). Rather, the Court now decides that an informed
consent provision must be justified by a "vital state need" before
it can be upheld.
See ante at
462 U. S.
448.
[
Footnote 2/16]
This is not to say that the informed consent provisions may not
violate the First Amendment rights of the physician if the State
requires him or her to communicate its ideology.
See Wooley v.
Maynard, 430 U. S. 705
(1977). However, it does not appear that Akron Center raised any
First Amendment argument in the court below.
See Brief for
Akron Center for Reproductive Health, Inc., in No. 79-3701 (CA6),
pp. 18-23; Reply Brief for Akron Center for Reproductive Health,
Inc., in No. 79-3701 (CA6), pp. 26-33.
[
Footnote 2/17]
On the basis of this analysis of the waiting period requirement,
the Court charges that "the dissent would uphold virtually any
abortion-inhibiting regulation. . . ."
Ante at
462 U. S. 421,
n. 1. The waiting period requirement is valid because it imposes a
small cost when all relevant factors are taken into consideration.
This is precisely the reasoning that JUSTICE POWELL employs in
upholding the pathology report requirement in
Planned
Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, post,
p.
462 U. S. 476
(report requirement imposes a "comparatively small additional
cost,"
post at
462 U. S.
489).