Appellees brought an action in Federal District Court alleging
that the Pennsylvania Abortion Control Act of 1982 violated the
Federal Constitution and seeking declaratory and injunctive relief.
The court denied appellees' motion for a preliminary injunction,
except as to one provision of the Act which it held was invalid.
The Court of Appeals, after granting appellees' motion to enjoin
enforcement of the entire Act, held unconstitutional, on the basis
of the intervening decisions in
Akron v. Akron Center for
Reproductive Health, Inc., 462 U. S. 416,
Planned Parenthood Assn. of Kansas City, Mo., Inc. v.
Ashcroft, 462 U. S. 476, and
Simopoulos v. Virginia, 462 U. S. 506, the
following provisions of the Act: (1) the portions of § 3205 that,
with respect to the requirement that the woman give her "informed
consent" to an abortion, require her to be informed of the name of
the physician who will perform the abortion, the "particular
medical risks" of the abortion procedure to be used and of carrying
her child to term, and the facts that there may be "detrimental
physical and psychological effects," medical assistance benefits
may be available for prenatal care, childbirth, and neonatal care,
the father is liable to assist in the child's support, and printed
materials are available from the State that describe the fetus and
list agencies offering alternatives to abortion; (2) § 3208 that
requires such printed materials to include a statement that there
are agencies willing to help the mother carry her child to term and
to assist her after the child is born and a description of the
probable anatomical and physiological characteristics of an unborn
child at "two-week gestational increments"; (3) §§ 3214(a) and (h)
that require the physician to report, among other things,
identification of the performing and referring physicians,
information as to the woman's residence, age, race, marital status,
and number of prior pregnancies, and the basis for any judgment
that a medical emergency existed or for any determination of
nonviability, and the method of payment for the abortion, and
further provide that such reports shall not be deemed public
records, but shall be available for public inspection and copying
in a form that will not lead to disclosure of the identity of any
person filing a report; (4) § 3211(a) that requires the physician,
after the
Page 476 U. S. 748
first trimester, to report the basis for his determination that
a child is not viable; (5) §3210(b) that requires a physician
performing a postviability abortion to exercise the degree of care
required to preserve the life and health of any unborn child
intended to be born and to use the abortion technique that would
provide the best opportunity for the unborn child to be aborted
alive unless it would present a significantly greater medical risk
to the pregnant woman's life or health; and (6) § 3210(c) that
requires that a second physician be present during an abortion
performed when viability is possible, which physician is to take
all reasonable steps necessary to preserve the child's life and
health. The court held that the validity of other provisions of the
Act might depend on evidence adduced at the trial, and accordingly
remanded these features of the case to the District Court.
Held:
1. In a situation such as is presented by this case, where the
judgment below is not final and the case is remanded for further
development of the facts, this Court has no appellate jurisdiction
under 28 U.S.C. § 1254(2). But the jurisdictional statement here is
treated as a petition for certiorari, and the writ is granted. Pp.
476 U. S.
754-755.
2. With a full record before it on the issues as to the validity
of the Act and with the intervening decisions in
Akron,
Ashcroft, and
Simopoulos at hand, the Court of
Appeals was justified in proceeding to plenary review of those
issues. It was not limited to determining whether the District
Court abused its discretion in denying a preliminary injunction.
Pp.
476 U. S.
755-757.
3. The States are not free, under the guise of protecting
maternal health or potential life, to intimidate women into
continuing pregnancies. The provisions of the Pennsylvania Act that
the Court of Appeals invalidated wholly subordinate constitutional
privacy interests and concerns with maternal health to the effort
to deter a woman from making a decision that, with her physician,
is hers to make. Pp.
476 U. S.
758-771.
(a) The printed materials required by §§ 3205 and 3208 are
nothing less than an attempt to wedge the State's message
discouraging abortion into the privacy of the informed consent
dialogue between the woman and her physician. Similarly, § 3205's
requirement that the woman be advised that medical assistance may
be available, and that the father is responsible for financial
assistance in support of the child, are poorly disguised elements
of discouragement for the abortion decision. And § 3205's
requirements that the physician inform the woman of "detrimental
physical and psychological effects" and of all "particular medical
risks" are the antithesis of informed consent. Pp.
476 U. S.
759-765.
(b) The scope of the information required by §§ 3214(a) and (h)
and 3211(a) and its availability to the public belie any assertions
by the State
Page 476 U. S. 749
that it is advancing any legitimate interest. The reporting
requirements of those sections raise the specter of public exposure
and harassment of women who choose to exercise their personal,
intensely private, right, with their physician, to end a pregnancy.
Thus, they pose an unacceptable danger of deterring the exercise of
that right, and must be invalidated. Pp.
476 U. S.
765-768.
(c) Section 3210(b) is facially invalid as being unsusceptible
to a construction that does not require the mother to bear an
increased medical risk in order save her viable fetus. Section
3210(c), by failing to provide a medical emergency exception for
the situation where the mother's health is endangered by delay in
the second physician's arrival, chills the performance of a late
abortion, which, more than one performed at an earlier date, tends
to be under emergency conditions. Pp.
476 U. S.
768-771.
737 F.2d 283, affirmed.
BLACKMUN, J., delivered the opinion of the Court, in which
BRENNAN, MARSHALL, POWELL, and STEVENS, JJ., joined. STEVENS, J.,
filed a concurring opinion,
post, p.
476 U. S. 772.
BURGER, C.J., filed a dissenting opinion,
post, p.
476 U. S. 782.
WHITE, J., filed a dissenting opinion, in which REHNQUIST, J.,
joined,
post, p.
476 U. S. 785.
O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, J.,
joined,
post, p.
476 U. S.
814.
Page 476 U. S. 750
JUSTICE BLACKMUN delivered the opinion of the Court.
This is an appeal from a judgment of the United States Court of
Appeals for the Third Circuit reviewing the District Court's
rulings upon a motion for a preliminary injunction. The Court of
Appeals held unconstitutional several provisions of Pennsylvania's
current Abortion Control Act, 1982 Pa. Laws, Act No. 138, now
codified as 18 Pa.Cons.Stat. § 3201
et seq. (1982).
[
Footnote 1] Among the
provisions ruled invalid by the Court of Appeals were portions of §
3205, relating to "informed consent"; § 3208, concerning "printed
information"; §§ 3210(b) and (c), having to do with postviability
abortions; and § 3211(a) and §§ 3214(a) and (h), regarding
reporting requirements. [
Footnote
2]
Page 476 U. S. 751
I
The Abortion Control Act was approved by the Governor of the
Commonwealth on June 11, 1982. By its own terms, however,
see § 7 of the Act, it was to become effective only 180
days thereafter, that is, on the following December 8. It had been
offered as an amendment to a pending bill to regulate paramilitary
training.
The 1982 Act was not the Commonwealth's first attempt, after
this Court's 1973 decisions in
Roe v. Wade, 410 U.
S. 113, and
Doe v. Bolton, 410 U.
S. 179, to impose abortion restraints. The State's first
post-1973 Abortion Control Act, 1974 Pa. Laws, Act No. 209, was
passed in 1974 over the Governor's veto. After extensive
litigation, various provisions of the 1974 statute were ruled
unconstitutional, including those relating to spousal or parental
consent, to the choice of procedure for a postviability abortion,
and to the proscription of abortion advertisements.
See Planned
Parenthood Assn. v. Fitzpatrick, 401 F.
Supp. 554 (ED Pa.1975),
summarily aff'd in part sub nom.
Franklin v. Fitzgerald, 428 U.S. 901 (1976),
and summarily
vacated in part and remanded sub nom. Beal v. Franklin, 428
U.S. 901 (1976),
modified on remand (No. 74-2440) (ED
Pa.1977),
aff'd sub nom. Colautti v. Franklin,
439 U. S. 379
(1979).
See also Doe v. Zimmerman, 405 F.
Supp. 534 (MD Pa.1975).
In 1978, the Pennsylvania Legislature attempted to restrict
access to abortion by limiting medical assistance funding for the
procedure. 2 1978 Pa. Laws, Act No. 16A (pp. 1506-1507) and 11978
Pa. Laws, Act No. 148. This effort, too, was successfully
challenged in federal court,
Roe v. Casey, 464 F.
Supp. 487 (ED Pa.1978), and that judgment was affirmed by the
Third Circuit. 623 F.2d 829 (1980).
In 1981, abortion legislation was proposed in the Pennsylvania
House as an amendment to a pending Senate bill to outlaw
Page 476 U. S. 752
"tough-guy competitions." [
Footnote 3] The suggested amendment, aimed at limiting
abortions, was patterned after a model statute developed by a
Chicago-based, nonprofit anti-abortion organization.
See
Note, Toward Constitutional Abortion Control Legislation: The
Pennsylvania Approach, 87 Dick.L.Rev. 373, 382, n. 84 (1983). The
bill underwent further change in the legislative process but, when
passed, was vetoed by the Governor.
See 737 F.2d 283,
288-289 (CA3 1984). Finally, the 1982 Act was formulated, enacted,
and approved.
After the passage of the Act, but before its effective date, the
present litigation was instituted in the United States District
Court for the Eastern District of Pennsylvania. The plaintiffs, who
are the appellees here, were the American College of Obstetricians
and Gynecologists, Pennsylvania Section; certain physicians
licensed in Pennsylvania; clergymen; an individual who purchases
from a Pennsylvania insurer health care and disability insurance
extending to abortions; and Pennsylvania abortion counselors and
providers. Alleging that the Act violated the United States
Constitution, the plaintiffs, pursuant to 42 U.S.C. § 1983, sought
declaratory and injunctive relief. The defendants named in the
complaint were the Governor of the Commonwealth, other Commonwealth
officials, and the District Attorney for Montgomery County, Pa.
The plaintiffs promptly filed a motion for a preliminary
injunction. Forty-one affidavits accompanied the motion. The
defendants, on their part, submitted what the Court of Appeals
described as "an equally comprehensive opposing memorandum." 737
F.2d at 289. The District Court then ordered the parties to submit
a "stipulation of uncontested facts," as authorized by local rule.
The parties produced a stipulation "solely for purposes of a
determination on plaintiffs'
Page 476 U. S. 753
motion for preliminary injunction," and "without prejudice to
any party's right to controvert any facts or to prove any
additional facts at any later proceeding in this action." App.
9a-10a.
Relying substantially on the opinions of the respective Courts
of Appeals in
Akron Center for Reproductive Health, Inc. v.
City of Akron, 651 F.2d 1198 (CA6 1981),
later aff'd in
part and rev'd in part, 462 U. S. 416
(1983), and in
Planned Parenthood Assn. of Kansas City v.
Ashcroft, 655 F.2d 848 (CA8 1981),
later aff'd in part and
rev'd in part, 462 U. S. 476
(1983), the District Court concluded that, with one exception,
see n 1,
supra, the plaintiffs had failed to establish a likelihood
of success on the merits, and thus were not entitled to preliminary
injunctive relief
552 F.
Supp. 791 (1982).
Appellees appealed from the denial of the preliminary
injunction, and appellants cross-appealed with respect to the
single statutory provision as to which the District Court had
allowed relief. The Third Circuit then granted appellees' motion to
enjoin enforcement of the entire Act pending appeal. After
expedited briefing and argument, the court withheld judgment
pending the anticipated decisions by this Court in
Akron,
supra, Ashcroft, supra, and
Simopoulos v.
Commonwealth, 221 Va. 1059,
277 S.E.2d
194 (1981), all of which had been accepted for review here, had
been argued, and were under submission. Those three cases were
decided by this Court on June 15, 1983.
See Akron v. Akron
Center for Reproductive Health, Inc., 462 U.
S. 416;
Planned Parenthood Assn. of Kansas City,
Missouri, Inc. v. Ashcroft, 462 U. S. 476;
Simopoulos v. Virginia, 462 U. S. 506.
After reargument in light of those decisions, the Court of Appeals,
with one judge concurring in part and dissenting in part, ruled
that various provisions of the Act were unconstitutional. 737 F.2d
283 (1984). Appellants' petition for rehearing en banc was denied,
with four judges voting to grant the petition.
Id. at 316,
317. When a jurisdictional statement
Page 476 U. S. 754
was filed here, we postponed further consideration of the
question of our jurisdiction to the hearing on the merits. 471 U.S.
1014 (1985).
II
We are confronted initially with the question whether we have
appellate jurisdiction in this case. Appellants purport to have
taken their appeal to this Court pursuant to 28 U.S.C. § 1254(2).
[
Footnote 4] It seems clear,
and the parties appear to agree,
see Brief for Appellants
21, that the judgment of the Court of Appeals was not a final
judgment in the ordinary meaning of that term. The court did not
hold the entire Act unconstitutional, but ruled, instead, that some
provisions were invalid under
Akron, Ashcroft, and
Simopoulos, and that the validity of other provisions
might depend on evidence adduced at the trial,
see 737
F.2d at 299-300, or on procedural rules to be promulgated by the
Supreme Court of Pennsylvania,
see id. at 296-297. It
remanded these features of the case to the District Court.
Id. at 304.
Slaker v. O'Connor, 278 U. S. 188,
278 U. S.
189-190 (1929), and
McLish v. Roff,
141 U. S. 661,
141 U. S.
665-666 (1891), surely suggest that, under these
circumstances, we do not have appellate jurisdiction. [
Footnote 5]
See also South Carolina
Electric & Gas Co. v. Flemming, 351 U.S. 901 (1956).
Although the authority of
Slaker and
South Carolina
Electric has been questioned, the Court to date has found it
unnecessary to put the issue to rest.
See Doran v. Salem Inn,
Inc., 422 U. S. 922,
422 U. S. 927
(1975);
Renton v. Playtime Theatres, Inc., 475 U. S.
41,
475 U. S. 43-44,
n. 1 (1986). In some cases raising this issue of the
Page 476 U. S. 755
scope of appellate jurisdiction, the Court has found any
finality requirement to have been satisfied in light of the facts.
See, e.g., New Orleans v. Dukes, 427 U.
S. 297,
427 U. S. 302
(1976);
Chicago v. Atchison, T. & S. F. R. Co.,
357 U. S. 77,
357 U. S. 82-83
(1968). In other cases, the Court has avoided the issue by
utilizing 28 U.S.C. § 2103 and granting certiorari.
See, e.g.,
Doran, 422 U.S. at
422 U. S. 927;
El Paso v. Simmons, 379 U. S. 497,
379 U. S. 503
(1965);
see also Escambia County v. McMillan, 466 U. S.
48,
466 U. S. 50, n.
4 (1984).
We have concluded that it is time that this undecided issue be
resolved. We therefore hold, on the reasoning of
McLish v.
Roff, 141 U.S. at
141 U. S.
665-668, that in a situation such as this one, where the
judgment is not final and where the case is remanded for further
development of the facts, we have no appellate jurisdiction under §
1254(2).
We nevertheless treat appellants' jurisdictional statement as a
petition for certiorari, grant the writ, and move on to the merits.
[
Footnote 6]
III
Appellants assert that the Court of Appeals erred in holding
portions of the Act unconstitutional, since the scope of its review
of the District Court's denial of a preliminary injunction as to
those sections should have been limited to determining whether the
trial court abused its discretion in finding the presence or
absence of irreparable harm and a probability that the plaintiffs
would succeed on the merits. Such limited review normally is
appropriate,
see Doran v. Salem Inn, Inc., 422 U.S. at
422 U. S.
931-932;
Brown v. Chote, 411 U.
S. 452,
411 U. S.
456-457 (1973), inasmuch as the primary purpose of a
preliminary injunction is to preserve the relative positions of the
parties.
See University of Texas v. Camenisch,
451 U. S. 390,
451 U. S. 395
(1981). Further, the necessity for an expeditious resolution often
means that the injunction is issued on a procedure
Page 476 U. S. 756
less stringent than that which prevails at the subsequent trial
on the merits of the application for injunctive relief.
See
United States Steel Corp. v. Fraternal Assn. of Steelhaulers,
431 F.2d 1046, 1048 (CA3 1970);
see also Mayo v. Lakeland
Highlands Canning Co., 309 U. S. 310,
309 U. S. 316
(1940).
This approach, however, is not inflexible. The Court on more
than one occasion in this area has approved proceedings deviating
from the stated norm. In
Youngstown Sheet & Tube Co. v.
Sawyer, 343 U. S. 579
(1952), the District Court had issued a preliminary injunction
restraining the Secretary of Commerce from seizing the Nation's
steel mills. The Court of Appeals stayed the injunction. This Court
found that the case was ripe for review, despite the early stage of
the litigation, and went on to address the merits.
Id. at
343 U. S. 585.
And in
Smith v. Vulcan Iron Works, 165 U.
S. 518 (1897), the District Court issued injunctions in
two patent cases and referred them to a Master for accounting. The
Court of Appeals reversed. This Court ruled that the Court of
Appeals had acted properly in deciding the merits, since review of
interlocutory appeals was designed not only to permit the defendant
to obtain immediate relief, but also, in certain cases, to save the
parties the expense of further litigation.
Id. at
165 U. S.
525.
The Third Circuit's decision to address the constitutionality of
the Pennsylvania Act finds further support in this Court's
decisions that, when the unconstitutionality of the particular
state action under challenge is clear, a federal court need not
abstain from addressing the constitutional issue pending state
court review.
See, e.g., Bailey v. Patterson, 369 U. S.
31,
369 U. S. 33
(1962);
Turner v. City of Memphis, 369 U.
S. 350,
369 U. S. 353
(1962);
Zwickler v. Koota, 389 U.
S. 241,
389 U. S. 251,
n. 14 (1967).
See also Singleton v. Wulff, 428 U.
S. 106,
428 U. S. 121
(1976).
See generally Spann, Simple Justice, 73 Geo. L.J.
1041, 1055, n. 77 (1985). [
Footnote
7]
Page 476 U. S. 757
Thus, as these cases indicate, if a district court's ruling
rests solely on a premise as to the applicable rule of law, and the
facts are established or of no controlling relevance, that ruling
may be reviewed even though the appeal is from the entry of a
preliminary injunction. [
Footnote
8] The Court of Appeals in this case properly recognized and
applied these principles when it observed:
"Thus, although this appeal arises from a ruling on a request
for a preliminary injunction, we have before us an unusually
complete factual and legal presentation from which to address the
important constitutional issues at stake. The customary discretion
accorded to a District Court's ruling on a preliminary injunction
yields to our plenary scope of review as to the applicable
law."
737 F.2d at 290.
That a court of appeals ordinarily will limit its review in a
case of this kind to abuse of discretion is a rule of orderly
judicial administration, not a limit on judicial power. With a full
record before it on the issues now before us, and with the
intervening decisions in
Akron, Ashcroft, and
Simopoulos at hand, the Court of Appeals was justified in
proceeding to plenary review of those issues.
Page 476 U. S. 758
IV
This case, as it comes to us, concerns the constitutionality of
six provisions of the Pennsylvania Act that the Court of Appeals
struck down as facially invalid: § 3205 ("informed consent"); §
3208 ("printed information"); §§ 3214(a) and (h) (reporting
requirements); § 3211(a) (determination of viability); § 3210(b)
(degree of care required in postviability abortions); and § 3210(c)
(second physician requirement). We have no reason to address the
validity of the other sections of the Act challenged in the
District Court. [
Footnote
9]
Page 476 U. S. 759
A
Less than three years ago, this Court, in
Akron,
Ashcroft, and
Simopoulos, reviewed challenges to
state and municipal legislation regulating the performance of
abortions. In
Akron, the Court specifically reaffirmed
Roe v. Wade, 410 U. S. 113
(1973).
See 462 U.S. at
462 U. S. 420,
462 U. S.
426-431. Again today, we reaffirm the general principles
laid down in
Roe and in
Akron.
In the years since this Court's decision in
Roe, States
and municipalities have adopted a number of measures seemingly
designed to prevent a woman, with the advice of her physician, from
exercising her freedom of choice.
Akron is but one
example. But the constitutional principles that led this Court to
its decisions in 1973 still provide the compelling reason for
recognizing the constitutional dimensions of a woman's right to
decide whether to end her pregnancy.
"[I]t should go without saying that the vitality of these
constitutional principles cannot be allowed to yield simply because
of disagreement with them."
Brown v. Board of Education, 349 U.
S. 294,
349 U. S. 300
(1955). The States are not free, under the guise of protecting
maternal health or potential life, to intimidate women into
continuing pregnancies. Appellants claim that the statutory
provisions before us today further legitimate compelling interests
of the Commonwealth. Close analysis of those provisions, however,
shows that they wholly subordinate constitutional privacy interests
and concerns with maternal health in an effort to deter a woman
from making a decision that, with her physician, is hers to
make.
B
We turn to the challenged statutes:
1. Section 3205 ("informed consent") and § 3208 ("printed
information"). Section 3205(a) requires that the woman give her
"voluntary and informed consent" to an abortion. Failure to observe
the provisions of § 3205 subjects the physician to suspension or
revocation of his license, and subjects any
Page 476 U. S. 760
other person obligated to provide information relating to
informed consent to criminal penalties. § 3205(c). A requirement
that the woman give what is truly a voluntary and informed consent,
as a general proposition, is, of course, proper and is surely not
unconstitutional.
See Planned Parenthood of Central Missouri v.
Danforth, 428 U. S. 52,
428 U. S. 67
(1976). But the State may not require the delivery of information
designed "to influence the woman's informed choice between abortion
or childbirth."
Akron, 462 U.S. at
462 U. S.
443-444.
Appellants refer to the Akron ordinance, Brief for Appellants
67, as did this Court in
Akron itself, 462 U.S. at
462 U. S. 445,
as "a litany of information" and as "
a parade of horribles'" of
dubious validity plainly designed to influence the woman's choice.
They would distinguish the Akron situation, however, from the
Pennsylvania one. Appellants assert that statutes "describing the
general subject matter relevant to informed consent,"
ibid., and stating "in general terms the information to be
disclosed," id. at 462 U. S. 447,
are permissible, and they further assert that the Pennsylvania
statutes do no more than that.
We do not agree. We conclude that, like Akron's ordinance, §§
3205 and 3208 fail the
Akron measurement. The two sections
prescribe in detail the method for securing "informed consent."
Seven explicit kinds of information must be delivered to the woman
at least 24 hours before her consent is given, and five of these
must be presented by the woman's physician. The five are: (a) the
name of the physician who will perform the abortion, (b) the "fact
that there may be detrimental physical and psychological effects
which are not accurately foreseeable," (c) the "particular medical
risks associated with the particular abortion procedure to be
employed," (d) the probable gestational age, and (e) the "medical
risks associated with carrying her child to term." The remaining
two categories are (f) the "fact that medical assistance benefits
may be available for prenatal care, childbirth
Page 476 U. S. 761
and neonatal care," and (g) the "fact that the father is liable
to assist" in the child's support, "even in instances where the
father has offered to pay for the abortion." §§ 3205(a)(1) and (2).
The woman also must be informed that materials printed and supplied
by the Commonwealth that describe the fetus and that list agencies
offering alternatives to abortion are available for her review. If
she chooses to review the materials but is unable to read, the
materials "shall be read to her," and any answer she seeks must be
"provided her in her own language." § 3205(a)(2)(iii). She must
certify in writing, prior to the abortion, that all this has been
done. § 3205(a)(3). The printed materials "shall include the
following statement":
"'There are many public and private agencies willing and able to
help you to carry your child to term, and to assist you and your
child after your child is born, whether you choose to keep your
child or place her or him for adoption. The Commonwealth of
Pennsylvania strongly urges you to contact them before making a
final decision about abortion. The law requires that your physician
or his agent give you the opportunity to call agencies like these
before you undergo an abortion.'"
§ 3208(a)(1). The materials must describe the
"probable anatomical and physiological characteristics of the
unborn child at two-week gestational increments from fertilization
to full term, including any relevant information on the possibility
of the unborn child's survival."
§ 3208(a)(2).
In
Akron, this Court noted: "The validity of an
informed consent requirement thus rests on the State's interest in
protecting the health of the pregnant woman." 462 U.S. at
462 U. S. 443.
The Court went on to state:
"This does not mean, however, that a State has unreviewable
authority to decide what information a woman must be given before
she chooses to have an
Page 476 U. S. 762
abortion. It remains primarily the responsibility of the
physician to ensure that appropriate information is conveyed to his
patient, depending on her particular circumstances.
Danforth's recognition of the State's interest in ensuring
that this information be given will not justify abortion
regulations designed to influence the woman's informed choice
between abortion or childbirth."
Id. at 443-444.
The informational requirements in the Akron ordinance were
invalid for two "equally decisive" reasons.
Id. at
462 U. S. 445.
The first was that "much of the information required is designed
not to inform the woman's consent, but rather to persuade her to
withhold it altogether."
Id. at
462 U. S. 444.
The second was that a rigid requirement that a specific body of
information be given in all cases, irrespective of the particular
needs of the patient, intrudes upon the discretion of the pregnant
woman's physician, and thereby imposes the "undesired and
uncomfortable straitjacket" with which the Court in
Danforth, 428 U.S. at
428 U. S. 67, n.
8, was concerned.
These two reasons apply with equal and controlling force to the
specific and intrusive informational prescriptions of the
Pennsylvania statutes. The printed materials required by §§ 3205
and 3208 seem to us to be nothing less than an outright attempt to
wedge the Commonwealth's message discouraging abortion into the
privacy of the informed consent dialogue between the woman and her
physician. The mandated description of fetal characteristics at
2-week intervals, no matter how objective, is plainly
overinclusive. This is not medical information that is always
relevant to the woman's decision, and it may serve only to confuse
and punish her, and to heighten her anxiety, contrary to accepted
medical practice. [
Footnote
10] Even the listing of agencies in the printed
Pennsylvania
Page 476 U. S. 763
form presents serious problems; it contains names of agencies
that well may be out of step with the needs of the particular
woman, and thus places the physician in an awkward position and
infringes upon his or her professional responsibilities. Forcing
the physician or counselor to present the materials and the list to
the woman makes him or her, in effect, an agent of the State in
treating the woman, and places his or her
imprimatur upon
both the materials and the list.
See Women's Medical Center of
Providence, Inc. v. Roberts, 530
F. Supp. 1136, 1154 (RI 1982). All this is, or comes close to
being, state medicine imposed upon the woman, not the professional
medical guidance she seeks, and it officially structures -- as it
obviously was intended to do -- the dialogue between the woman and
her physician.
The requirements of §§ 3205(a)(2)(i) and (ii) that the woman be
advised that medical assistance benefits may be available, and that
the father is responsible for financial assistance in the support
of the child, similarly are poorly disguised elements of
discouragement for the abortion decision. Much of this would be
nonmedical information beyond the physician's area of expertise,
and, for many patients, would be irrelevant and inappropriate. For
a patient with a life-threatening pregnancy, the "information" in
its very rendition may be cruel, as well as destructive of the
physician-patient relationship. As any experienced social worker or
other counselor knows, theoretical financial responsibility often
does not equate with fulfillment. And a victim of rape should not
have to hear gratuitous advice that an unidentified perpetrator is
liable for support if she continues the pregnancy to term. Under
the guise of informed consent, the Act requires the dissemination
of information that is not relevant to such consent, and, thus, it
advances no legitimate state interest.
Page 476 U. S. 764
The requirements of §§ 3205(a)(1)(ii) and (iii) that the woman
be informed by the physician of "detrimental physical and
psychological effects" and of all "particular medical risks"
compound the problem of medical attendance, increase the patient's
anxiety, and intrude upon the physician's exercise of proper
professional judgment. This type of compelled information is the
antithesis of informed consent. That the Commonwealth does not, and
surely would not, compel similar disclosure of every possible peril
of necessary surgery or of simple vaccination, reveals the
anti-abortion character of the statute, and its real purpose.
Pennsylvania, like Akron, "has gone far beyond merely describing
the general subject matter relevant to informed consent."
Akron, 462 U.S. at
462 U. S. 445.
In addition, the Commonwealth would require the physician to recite
its litany "regardless of whether, in his judgment, the information
is relevant to [the patient's] personal decision."
Ibid.
These statutory defects cannot be saved by any facts that might be
forthcoming at a subsequent hearing. Section 3205's informational
requirements therefore are facially unconstitutional. [
Footnote 11]
Appellants assert, however, that even if this be so, the remedy
is to allow the remainder of § 3205 to be severed and become
effective. We rule otherwise. The radical dissection necessary for
this would leave § 3205 with little resemblance to that intended by
the Pennsylvania Legislature. We rejected a similar suggestion as
to the ordinance in
Page 476 U. S. 765
Akron, 462 U.S. at
462 U. S. 445,
n. 37, despite the presence there of a broad severability clause.
We reach the same conclusion here, where no such clause is present,
and reject the plea for severance.
See Carter v. Carter Coal
Co., 298 U. S. 238,
298 U. S.
312-313 (1936).
2. Sections 3214(a) and (h) (reporting) and § 3211(a)
(determination of viability). Section 3214(a)(8), part of the
general reporting section, incorporates § 3211(a). Section 3211(a)
requires the physician to report the basis for his determination
"that a child is not viable." It applies only after the first
trimester. The report required by §§ 3214(a) and (h) is detailed,
and must include, among other things, identification of the
performing and referring physicians and of the facility or agency;
information as to the woman's political subdivision and State of
residence, age, race, marital status, and number of prior
pregnancies; the date of her last menstrual period and the probable
gestational age; the basis for any judgment that a medical
emergency existed; the basis for any determination of nonviability;
and the method of payment for the abortion. The report is to be
signed by the attending physician. § 3214(b).
Despite the fact that § 3214(e)(2) provides that such reports
"shall not be deemed public records" within the meaning of the
Commonwealth's "Right-to-Know Law," Pa.Stat.Ann., Tit. 65, § 66.1
et seq. (Purdon 1959 and Supp.1985), each report "shall be
made available for public inspection and copying within 15 days of
receipt in a form which will not lead to the disclosure of the
identity of any person filing a report." Similarly, the report of
complications, required by § 3214(h), "shall be open to public
inspection and copying." A willful failure to file a report
required under § 3214 is "unprofessional conduct," and the
noncomplying physician's license "shall be subject to suspension or
revocation." § 3214(i)(1).
The scope of the information required and its availability to
the public belie any assertions by the Commonwealth that it is
advancing any legitimate interest. In
Planned
Parenthood
Page 476 U. S.
766
of Central Missouri. v. Danforth, 428 U.S. at
428 U. S. 80, we
recognized that recordkeeping and reporting provisions
"that are reasonably directed to the preservation of maternal
health and that properly respect a patient's confidentiality and
privacy are permissible."
But the reports required under the Act before us today go well
beyond the health-related interests that served to justify the
Missouri reports under consideration in
Danforth.
Pennsylvania would require, as Missouri did not, information as to
method of payment, as to the woman's personal history, and as to
the bases for medical judgments. The Missouri reports were to be
used "only for statistical purposes."
See id. at
427 U. S. 87.
They were to be maintained in confidence, with the sole exception
of public health officers. In
Akron, the Court explained
its holding in
Danforth when it said: "The decisive factor
was that the State met its burden of demonstrating that these
regulations furthered important health-related state concerns." 462
U.S. at
462 U. S.
430.
The required Pennsylvania reports, on the other hand, while
claimed not to be "public," are available nonetheless to the public
for copying. Moreover, there is no limitation on the use to which
the Commonwealth or the public copiers may put them. The elements
that proved persuasive for the ruling in
Danforth are
absent here. The decision to terminate a pregnancy is an intensely
private one that must be protected in a way that assures anonymity.
JUSTICE STEVENS, in his opinion concurring in the judgment in
Bellotti v. Baird, 443 U. S. 622
(1979), aptly observed:
"It is inherent in the right to make the abortion decision that
the right may be exercised without public scrutiny and in defiance
of the contrary opinion of the sovereign or other third
parties."
Id. at
443 U. S.
655.
A woman and her physician will necessarily be more reluctant to
choose an abortion if there exists a possibility that her decision
and her identity will become known publicly. Although the statute
does not specifically require the reporting
Page 476 U. S. 767
of the woman's name, the amount of information about her and the
circumstances under which she had an abortion are so detailed that
identification is likely. Identification is the obvious purpose of
these extreme reporting requirements. [
Footnote 12] The "impermissible limits" that
Danforth mentioned and that Missouri approached,
see 428 U.S. at
428 U. S. 81,
have been exceeded here.
We note, as we reach this conclusion, that the Court
consistently has refused to allow government to chill the exercise
of constitutional rights by requiring disclosure of protected, but
sometimes unpopular, activities.
See, e.g., Lamont v.
Postmaster General, 381 U. S. 301
(1965) (invalidating Post Office requirement that addressee
affirmatively request delivery of "communist" materials in order to
receive them);
Talley v. California, 362 U. S.
60,
362 U. S. 64-65
(1960) (striking down municipal ban on unsigned handbills);
NAACP v. Alabama ex rel. Patterson, 357 U.
S. 449,
357 U. S.
462-465 (1958) (invalidating compelled disclosure of
NAACP membership list). Pennsylvania's reporting requirements raise
the specter of public exposure and harassment of women who choose
to exercise their personal, intensely private, right, with their
physician, to end a pregnancy. Thus, they pose an unacceptable
Page 476 U. S. 768
danger of deterring the exercise of that right, and must be
invalidated.
3. Section 3210(b) (degree of care for postviability abortions)
and § 3210(c) (second physician requirement when the fetus is
possibly viable). Section 3210(b) [
Footnote 13] sets forth two independent requirements for
a postviability abortion. First, it demands the exercise of that
degree of care
"which such person would be required to exercise in order to
preserve the life and health of any unborn child intended to be
born and not aborted."
Second, "the abortion technique employed shall be that which
would provide the best opportunity for the unborn child to be
aborted alive unless," in the physician's good faith judgment, that
technique "would present a significantly greater medical risk to
the life or health of the pregnant woman." An intentional, knowing,
or reckless violation of this standard is a felony of the third
degree, and subjects the violator to the possibility of
imprisonment for not more than seven years and to a fine of not
more than $15,000.
See 18 Pa.Cons.Stat. §§ 1101(2) and
1103(3) (1982).
The Court of Appeals ruled that § 3210(b) was unconstitutional
because it required a "trade-off " between the woman's health and
fetal survival, and failed to require that maternal
Page 476 U. S. 769
health be the physician's paramount consideration. 737 F.2d at
300, citing
Colautti v. Franklin, 439 U.
S. 379,
439 U. S.
397-401 (1979) (where Pennsylvania's 1974 Abortion
Control Act was reviewed). In
Colautti, this Court
recognized the undesirability of any "
trade-off' between the
woman's health and additional percentage points of fetal survival."
Id. at 439 U. S.
400.
Appellants do not take any real issue with this proposition.
See Brief for Appellants 84-86. They argue instead, as did
the District Court,
see 552 F. Supp. at 806-807, that the
statute's words "significantly greater medical risk" for the life
or health of the woman do not mean some additional risk (in which
case unconstitutionality apparently is conceded), but only a
"meaningfully increased" risk. That interpretation, said the
District Court, renders the statute constitutional.
Id. at
807. The Court of Appeals disagreed, pointing out that such a
reading is inconsistent with the statutory language and with the
legislative intent reflected in that language; that the adverb
"significantly" modifies the risk imposed on the woman; that the
adverb is "patently not surplusage"; and that the language of the
statute "is not susceptible to a construction that does not require
the mother to bear an increased medical risk in order to save her
viable fetus." 737 F.2d at 300. We agree with the Court of Appeals,
and therefore find the statute to be facially invalid. [
Footnote 14]
Section 3210(c) [
Footnote
15] requires that a second physician be present during an
abortion performed when viability is possible.
Page 476 U. S. 770
The second physician is to
"take control of the child and . . . provide immediate medical
care for the child, taking all reasonable steps necessary, in his
judgment, to preserve the child's life and health."
Violation of this requirement is a felony of the third
degree.
In
Planned Parenthood Assn. of Kansas City, Missouri, Inc.
v. Ashcroft, 462 U. S. 476
(1983), the Court, by a 5-4 vote, but not by a controlling single
opinion, ruled that a Missouri statute requiring the presence of a
second physician during an abortion performed after viability was
constitutional. JUSTICE POWELL, joined by THE CHIEF JUSTICE,
concluded that the State had a compelling interest in protecting
the life of a viable fetus, and that the second physician's
presence provided assurance that the State's interest was protected
more fully than with only one physician in attendance.
Id.
at
462 U. S.
482-486. [
Footnote
16] JUSTICE POWELL recognized that, to pass constitutional
muster, the statute must contain an exception for the situation
where the health of the mother was endangered by delay in the
arrival of the second physician. Recognizing that there was "no
clearly expressed exception" on the face of the Missouri statute
for the emergency situation, JUSTICE POWELL found the exception
implicit in the statutory requirement that action be taken to
preserve the fetus "provided it does not pose an increased risk to
the life or health of the woman."
Id. at
462 U. S. 485,
n. 8.
Like the Missouri statute, § 3210(c) of the Pennsylvania statute
contains no express exception for an emergency situation. While the
Missouri statute, in the view of JUSTICE POWELL, was worded
sufficiently to imply an emergency exception, Pennsylvania's
statute contains no such comforting or
Page 476 U. S. 771
helpful language, and evinces no intent to protect a woman whose
life may be at risk. Section 3210(a) [
Footnote 17] provides only a defense to criminal
liability for a physician who concluded, in good faith, that a
fetus was nonviable "or that the abortion was necessary to preserve
maternal life or health." It does not relate to the second
physician requirement, and its words are not words of
emergency.
It is clear that the Pennsylvania Legislature knows how to
provide a medical emergency exception when it chooses to do so. It
defined "[m]edical emergency" in general terms in § 3203, and it
specifically provided a medical emergency exception with respect to
informational requirements, § 3205(b); for parental consent, §
3205; for post-first-trimester hospitalization, § 3209; and for a
public official's issuance of an order for an abortion without the
express voluntary consent of the woman, § 3215(f). We necessarily
conclude that the legislature's failure to provide a medical
emergency exception in § 3210(c) was intentional. All the factors
are here for chilling the performance of a late abortion, which,
more than one performed at an earlier date, perhaps tends to be
under emergency conditions.
V
Constitutional rights do not always have easily ascertainable
boundaries, and controversy over the meaning of our Nation's most
majestic guarantees frequently has been turbulent. As judges,
however, we are sworn to uphold the law even when its content gives
rise to bitter dispute.
See Cooper v. Aaron, 358 U. S.
1 (1958). We recognized at the very
Page 476 U. S. 772
beginning of our opinion in
Roe, 410 U.S. at
410 U. S. 116,
that abortion raises moral and spiritual questions over which
honorable persons can disagree sincerely and profoundly. But those
disagreements did not then and do not now relieve us of our duty to
apply the Constitution faithfully.
Our cases long have recognized that the Constitution embodies a
promise that a certain private sphere of individual liberty will be
kept largely beyond the reach of government.
See, e.g., Carey
v. Population Services International, 431 U.
S. 678 (1977);
Moore v. East Cleveland,
431 U. S. 494
(1977);
Eisenstadt v. Baird, 405 U.
S. 438 (1972);
Griswold v. Connecticut,
381 U. S. 479
(1965);
Pierce v. Society of Sisters, 268 U.
S. 510 (1925);
Meyer v. Nebraska, 262 U.
S. 390 (1923).
See also Whalen v. Roe,
429 U. S. 589,
429 U. S.
598-600 (1977). That promise extends to women as well as
to men. Few decisions are more personal and intimate, more properly
private, or more basic to individual dignity and autonomy, than a
woman's decision -- with the guidance of her physician and within
the limits specified in Roe -- whether to end her pregnancy. A
woman's right to make that choice freely is fundamental. Any other
result, in our view, would protect inadequately a central part of
the sphere of liberty that our law guarantees equally to all.
The Court of Appeals correctly invalidated the specified
provisions of Pennsylvania's 1982 Abortion Control Act. Its
judgment is affirmed.
It is so ordered.
[
Footnote 1]
The District Court had held invalid and had enjoined
preliminarily only the requirement of § 3205(a)(2) that at least 24
hours must elapse between a woman's receipt of specified
information and the performance of her abortion.
552 F.
Supp. 791, 797-798, 811 (ED Pa.1982).
[
Footnote 2]
The Court of Appeals also held § 3215(e) invalid. That section
requires health care insurers to make available, at a lesser
premium, policies expressly excluding coverage "for abortion
services not necessary to avert the death of the woman or to
terminate pregnancies caused by rape or incest." This ruling on §
3215(e) is not before us.
[
Footnote 3]
A "tough-guy competition" is a physical contact bout between
persons who lack professional experience and who attempt to render
each other unconscious.
See Note, 87 Dick.L.Rev. 373, 382,
n. 84 (1983).
[
Footnote 4]
Section 1254 reads in pertinent part:
"Cases in the courts of appeals may be reviewed by the Supreme
Court by the following methods:"
"
* * * *"
"(2) By appeal by a party relying on a State statute held by a
court of appeals to be invalid as repugnant to the Constitution,
treaties or laws of the United States. . . ."
[
Footnote 5]
Appellants ask that
Slaker be overruled.
See
Brief for Appellants 10, 22-25.
[
Footnote 6]
We continue, however, to refer to the parties as appellants and
appellees, respectively.
[
Footnote 7]
This principle finds an analogy in an established doctrine of
administrative law. In
SEC v. Chenery Corp., 318 U. S.
80 (1943), the Court ruled that a reviewing court could
not affirm an agency on a principle the agency might not embrace.
But the ruling in
Chenery has not required courts to
remand in futility.
See Illinois v. ICC, 722 F.2d 1341,
1348-1349 (CA7 1983);
see also Friendly,
Chenery
Revisited: Reflections on Reversal and Remand of Administrative
Orders, 1969 Duke L.J.199.
[
Footnote 8]
A different situation is presented, of course, when there is no
disagreement as to the law, but the probability of success on the
merits depends on facts that are likely to emerge at trial.
See
Delaware & Hudson R. Co. v. United Transportation Union,
146 U.S.App.D.C. 142, 159, 450 F.2d 603, 620,
cert.
denied, 403 U.S. 911 (1971).
See also Airco, Inc. v.
Energy Research & Development Admin., 528 F.2d 1294, 1296
(CA7 1975);
California ex rel. Younger v. Tahoe Regional
Planning Agency, 516 F.2d 215, 217 (CA9),
cert.
denied, 423 U.S. 868 (1975);
Natural Resources Defense
Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 10, 458 F.2d 827,
832 (1972);
Benda v. Grand Lodge, 584 F.2d 308, 314 (CA9
1978),
cert. dism'd, 441 U.S. 937 (1979);
FTC v.
Southwest Sunsites, Inc., 665 F.2d 711, 717 (CA5),
cert.
denied, 456 U.S. 973 (1982).
[
Footnote 9]
Not before us are: § 3203 (definition of "abortion"); § 3205
(24-hour waiting period and physician-only counseling); §§ 3207(b)
and 3214(f) (public disclosure of reports); § 3209 (requirement of
hospitalization for an abortion subsequent to the first trimester);
§ 3210(a) (penalties for abortion after viability, and the
"complete defense" thereto); § 3215(c) (proscription of use of
public funds for abortion services); and § 3215(e) (compulsory
availability of insurance excluding certain abortion services).
Remanded for record development or otherwise not invalidated,
and therefore not before us, are: § 3206 (parental consent --
operation of statute enjoined until promulgation of rules by the
Supreme Court of Pennsylvania assuring confidentiality and
promptness of disposition); § 3207(b) (abortion facilities and
reports from them for public disclosure); and §§ 3214(c), (d), (f),
and (g) (other reporting requirements -- challenges either not made
or withdrawn).
On June 17, 1985, the District Court, after hearing,
preliminarily enjoined the enforcement of §§ 3207(b) and 3214(f).
613 F.
Supp. 656 (ED Pa.).
See n 12,
infra.
The Supreme Court of Pennsylvania issued the suggested rules,
mentioned above, on November 26, 1984, after the appeal in this
case was docketed here.
See Pennsylvania Orphans' Court
Rules 16.1 to 16.8, reprinted in Pa.Stat.Ann., Tit. 20, pp. 65, 66
(Purdon Supp. to §§ 101-2507, 1986-1987). Appellants thereupon
filed a motion with the District Court that the injunction against
enforcement of § 3205 be vacated. App. 53a. That court, however,
denied the motion, concluding that it had no jurisdiction "to issue
the order [appellants] seek" while the case was on appeal here.
Id. at 57a, 61a. We decline appellants' suggestion that we
now examine this feature of the case in the light of the new rules,
for we conclude that this development should be considered by the
District Court in the first instance.
[
Footnote 10]
Following this Court's lead in
Akron, federal courts
consistently have stricken fetal description requirements because
of their inflammatory impact.
See, e.g., Planned Parenthood
League of Massachusetts v. Bellotti, 641 F.2d 1006, 1021-1022
(CA1 1981);
Charles v. Carey, 627 F.2d 772, 784 (CA7
1980);
Planned Parenthood Assn. of Kansas City v.
Ashcroft, 655 F.2d 848, 868 (CA8 1981);
Women's Medical
Center of Providence, Inc. v. Roberts, 530 F.
Supp. 1136, 1152-1154 (RI 1982).
[
Footnote 11]
In their argument against this conclusion, appellants claim that
the informational requirements must be held constitutional in the
light of this Court's summary affirmance in
Franklin v.
Fitzpatrick, 428 U.S. 901 (1976), of the judgment in
Planned Parenthood Assn. v. Fitzpatrick, 401 F.
Supp. 554 (ED Pa.1975). That litigation concerned the
Commonwealth's 1974 Abortion Control Act. Its informed consent
provision, however, did not contain such plainly unconstitutional
informational requests as those in the current Act, or any
physician-only counseling or 24-hour waiting-period requirements.
The summary affirmance also preceded the decision in
Akron
and, to the extent, if any at all, it might be considered to be
inconsistent with
Akron, the latter, of course,
controls.
[
Footnote 12]
Appellees advise us,
see Brief for Appellees 38-39,
that they sought in the District Court a preliminary injunction
against the requirement that the facility identification report and
the quarterly statistical report be made available for public
inspection and copying, and that, on June 17, 1985, after full
hearing, the District Court entered a preliminary injunction
against the enforcement of these public disclosure requirements.
Appellees assert that the record of that hearing shows a continuous
pattern of violence and harassment directed against the patients
and staff of abortion clinics; that the District Court concluded
that this would be increased by the public disclosure of facility
names and quarterly statistical reports; and that public disclosure
would impose a burden on the woman's right to an abortion by
heightening her fear and anxiety, and by discouraging her physician
from offering an abortion because, by so doing, he would avoid
pressure from anti-abortion forces. That record, of course, is not
now before us. We need place no reliance upon it, and we draw no
conclusion from it.
[
Footnote 13]
Section 3210(b) reads:
"Every person who performs or induces an abortion after an
unborn child has been determined to be viable shall exercise that
degree of professional skill, care and diligence which such person
would be required to exercise in order to preserve the life and
health of any unborn child intended to be born and not aborted and
the abortion technique employed shall be that which would provide
the best opportunity for the unborn child to be aborted alive
unless, in the good faith judgment of the physician, that method or
technique would present a significantly greater medical risk to the
life or health of the pregnant woman than would another available
method or technique and the physician reports the basis for his
judgment. The potential psychological or emotional impact on the
mother of the unborn child's survival shall not be deemed a medical
risk to the mother. Any person who intentionally, knowingly or
recklessly violates the provisions of this subsection commits a
felony of the third degree."
[
Footnote 14]
This makes it unnecessary for us to consider appellees' further
argument that § 3210(b) is void for vagueness.
[
Footnote 15]
Section 3210(c) reads:
"Any person who intends to perform an abortion the method chosen
for which, in his good faith judgment, does not preclude the
possibility of the child surviving the abortion, shall arrange for
the attendance, in the same room in which the abortion is to be
completed, of a second physician. Immediately after the complete
expulsion or extraction of the child, the second physician shall
take control of the child and shall provide immediate medical care
for the child, taking all reasonable steps necessary, in his
judgment, to preserve the child's life and health. Any person who
intentionally, knowingly or recklessly violates the provisions of
this subsection commits a felony of the third degree."
[
Footnote 16]
JUSTICE O'CONNOR, joined by JUSTICES WHITE and REHNQUIST, stated
somewhat categorically that the second physician requirement was
constitutional. 462 U.S. at
462 U. S.
505.
[
Footnote 17]
Section 3210(a) reads:
"Any person who intentionally, knowingly or recklessly performs
or induces an abortion when the fetus is viable commits a felony of
the third degree. It shall be a complete defense to any charge
brought against a physician for violating the requirements of this
section that he had concluded in good faith, in his best medical
judgment, that the unborn child was not viable at the time the
abortion was performed or induced or that the abortion was
necessary to preserve maternal life or health."
JUSTICE STEVENS, concurring.
The scope of the individual interest in liberty that is given
protection by the Due Process Clause of the Fourteenth Amendment is
a matter about which conscientious judges have long disagreed.
Although I believe that that interest is significantly broader than
JUSTICE WHITE does, [
Footnote 2/1]
I have always
Page 476 U. S. 773
had the highest respect for his views on this subject. [
Footnote 2/2] In this case, although our
ultimate conclusions differ, it may be useful to emphasize some of
our areas of agreement in order to ensure that the clarity of
certain fundamental propositions not be obscured by his forceful
rhetoric.
Let me begin with a reference to
Griswold v.
Connecticut, 381 U. S. 479
(1965), the case holding that a State may not totally forbid the
use of birth control devices. Although the Court's opinion relied
on a "right of marital privacy" within the "penumbra" of the Bill
of Rights,
id. at
381 U. S. 481-486, JUSTICE WHITE's concurring opinion
went right to the heart of the issue. He wrote:
"It would be unduly repetitious, and belaboring the obvious, to
expound on the impact of this statute on the liberty guaranteed by
the Fourteenth Amendment against arbitrary or capricious denials or
on the nature of this liberty. Suffice it to say that this is not
the first time this Court has had occasion to articulate that the
liberty entitled to protection under the Fourteenth Amendment
includes the right 'to marry, establish a home and bring up
children,'
Meyer v. Nebraska, 262 U. S.
390,
262 U. S. 399, and 'the
liberty . . . to direct the upbringing and education of children,'
Pierce v. Society of Sisters, 268 U. S.
510,
268 U. S. 534-535, and that
these are among 'the basic civil rights of man.'
Skinner v.
Oklahoma, 316 U. S. 535,
316 U. S.
541. These decisions affirm that there is a 'realm of
family life which the state cannot enter' without substantial
justification.
Prince v. Massachusetts, 321 U. S.
158,
321 U. S. 166. Surely the
right invoked in this case, to be free of regulation of the
intimacies of the marriage relationship, 'come[s] to this Court
with a momentum for respect lacking when appeal is made to
liberties which derive merely from shifting economic
arrangements.'
Page 476 U. S. 774
Kovacs v. Cooper, 336 U. S. 77,
336 U. S.
95 (opinion of Frankfurter, J.)."
Id. at
381 U. S.
502-503 (WHITE, J., concurring in the judgment). He
concluded that the statute could not be constitutionally applied to
married persons, explaining:
"I find nothing in this record justifying the sweeping scope of
this statute, with its telling effect on the freedoms of married
persons, and therefore conclude that it deprives such persons of
liberty without due process of law."
Id. at
381 U. S. 507.
That conclusion relied in part on the fact that the statute
involved "sensitive areas of liberty" [
Footnote 2/3] and in part on the absence of any
colorable justification for applying the statute to married
couples.
In
Eisenstadt v. Baird, 405 U.
S. 438 (1972), JUSTICE WHITE concluded that a similar
Massachusetts statute was invalid as applied to a person whom the
record did not identify as either married or unmarried,
id. at
405 U. S. 464-465,
and in
Carey v. Population Services International,
431 U. S. 678
(1977), he subscribed to this explanation of the holdings in
Griswold and
Eisenstadt:
"The fatal fallacy in [the appellants'] argument is that it
overlooks the underlying premise of those decisions that the
Constitution protects 'the right of the individual
Page 476 U. S. 775
. . . to be free from unwarranted governmental intrusion into .
. . the decision whether to bear or beget a child.' [
Eisenstadt
v. Baird, 405 U.S.] at
405 U. S.
453.
Griswold did state that, by 'forbidding
the
use of contraceptives, rather than regulating their
manufacture or sale,' the Connecticut statute there had 'a maximum
destructive impact' on privacy rights. 381 U.S. at
381 U. S.
485. This intrusion into 'the sacred precincts of
marital bedrooms' made that statute particularly 'repulsive.'
Id. at
381 U. S. 485-486. But
subsequent decisions have made clear that the constitutional
protection of individual autonomy in matters of childbearing is not
dependent on that element.
Eisenstadt v. Baird, holding
that the protection is not limited to married couples,
characterized the protected right as the '
decision whether
to bear or beget a child.' 405 U.S. at
405 U. S.
453 (emphasis added). Similarly,
Roe v. Wade
held that the Constitution protects 'a woman's
decision
whether or not to terminate her pregnancy.' 410 U.S. at
410 U. S. 153 (emphasis
added).
See also Whalen v. Roe, [
429 U.S.
589,]
429 U. S. 599-600, and n.
26. These decisions put
Griswold in proper perspective.
Griswold may no longer be read as holding only that a
State may not prohibit a married couple's use of contraceptives.
Read in light of its progeny, the teaching of
Griswold is
that the Constitution protects individual decisions in matters of
childbearing from unjustified intrusion by the State."
431 U.S. at
431 U. S. 687;
id. at
431 U. S. 702
(WHITE, J., concurring in pertinent part and concurring in
result).
Thus, the aspect of liberty at stake in this case is the freedom
from unwarranted governmental intrusion into individual decisions
in matters of childbearing. As JUSTICE WHITE explained in
Griswold, that aspect of liberty comes to this Court with
a momentum for respect that is lacking when appeal is made to
liberties which derive merely from shifting economic
arrangements.
Page 476 U. S. 776
Like the birth control statutes involved in
Griswold
and
Baird, the abortion statutes involved in
Roe v.
Wade, 410 U. S. 113
(1973), and in the case before us today apply equally to decisions
made by married persons and by unmarried persons. Consistently with
his views in those cases, JUSTICE WHITE agrees that "a woman's
ability to choose an abortion is a species of
liberty' that is
subject to the general protections of the Due Process Clause."
Post at 476 U. S. 790.
His agreement with that "indisputable" proposition, ibid.,
is not qualified or limited to decisions made by pregnant women who
are married and, indeed, it would be a strange form of liberty if
it were so limited.
Up to this point in JUSTICE WHITE's analysis, his opinion is
fully consistent with the accepted teachings of the Court and with
the major premises of
Roe v. Wade. For reasons that are
not entirely clear, however, JUSTICE WHITE abruptly announces that
the interest in "liberty" that is implicated by a decision not to
bear a child that is made a few days after conception is
less fundamental than a comparable decision made before
conception.
Post at
476 U. S.
791-792. There may, of course, be a significant
difference in the strength of the countervailing state interest,
but I fail to see how a decision on childbearing becomes
less important the day after conception than the day
before. Indeed, if one decision is more "fundamental" to the
individual's freedom than the other, surely it is the
postconception decision that is the more serious. Thus, it is
difficult for me to understand how JUSTICE WHITE reaches the
conclusion that restraints upon this aspect of a woman's liberty do
not "call into play anything more than the most minimal judicial
scrutiny."
Post at
476 U. S. 790.
[
Footnote 2/4]
Page 476 U. S. 777
If JUSTICE WHITE were correct in regarding the postconception
decision of the question whether to bear a child as a relatively
unimportant, second-class sort of interest, I might agree with his
view that the individual should be required to conform her decision
to the will of the majority. But if that decision commands the
respect that is traditionally associated with the "sensitive areas
of liberty" protected by the Constitution, as JUSTICE WHITE
characterized reproductive decisions in
Griswold, 381 U.S.
at
381 U. S. 503,
no individual should be compelled to surrender the freedom to make
that decision for herself simply because her "value preferences"
are not shared by the majority. [
Footnote 2/5] In a sense, the basic question is whether
the "abortion decision" should be made by the individual or by the
majority "in the unrestrained imposition
Page 476 U. S. 778
of its own, extraconstitutional value preferences."
Post at
476 U. S. 794.
But surely JUSTICE WHITE is quite wrong in suggesting that the
Court is imposing value preferences on anyone else.
Ibid.
[
Footnote 2/6]
JUSTICE WHITE is also surely wrong in suggesting that the
governmental interest in protecting fetal life is equally
compelling during the entire period from the moment of conception
until the moment of birth.
Post at
476 U. S. 795.
Again, I recognize that a powerful theological argument can be made
for that position, but I believe our jurisdiction is limited to the
evaluation of secular state interests. [
Footnote 2/7] I should think it obvious that the State's
interest in the protection of an embryo -- even if that interest is
defined as "protecting those who will be citizens,"
ibid.
-- increases progressively and dramatically as the organism's
capacity to feel pain, to experience pleasure, to survive, and to
react to its surroundings increases day by day. The development of
a fetus -- and pregnancy itself -- are not static conditions, and
the assertion that the government's interest is static simply
ignores this reality.
Page 476 U. S. 779
Nor is it an answer to argue that life itself is not a static
condition, and that "there is no nonarbitrary line separating a
fetus from a child, or indeed, an adult human being,"
post
at
476 U. S. 792.
For, unless the religious view that a fetus is a "person" is
adopted -- a view JUSTICE WHITE refuses to embrace,
ibid.
-- there is a fundamental and well-recognized difference between a
fetus and a human being; indeed, if there is not such a difference,
the permissibility of terminating the life of a fetus could
scarcely be left to the will of the state legislatures. [
Footnote 2/8] And if distinctions may be
drawn between a fetus and a human being in terms of the state
interest in their protection -- even though the fetus represents
one of "those who will be citizens" -- it seems to me quite odd to
argue that distinctions may not also be drawn between the state
interest in protecting the freshly fertilized egg and the state
interest in protecting the 9-month-gestated, fully sentient fetus
on the eve of birth. Recognition of this distinction is supported
not only by logic, but also by history [
Footnote 2/9] and by our shared experiences.
Turning to JUSTICE WHITE's comments on
stare decisis,
he is of course correct in pointing out that the Court
"has not hesitated to overrule decisions, or even whole lines of
cases, where experience, scholarship, and reflection demonstrated
that their fundamental premises were not to be found in the
Constitution."
Post at
476 U. S. 787.
But JUSTICE WHITE has not disavowed the "fundamental premises" on
which the decision in
Roe v. Wade rests. He has not
disavowed the Court's prior approach to the interpretation of the
word "liberty" or, more narrowly, the line of cases that culminated
in the unequivocal holding, applied to unmarried persons and
married persons alike, "that the Constitution protects individual
decisions in matters of childbearing from unjustified intrusion
by
Page 476 U. S. 780
the State."
Carey, 431 U.S. at
431 U. S. 687;
id. at
431 U. S. 702
(WHITE, J., concurring in pertinent part). [
Footnote 2/10]
Nor does the fact that the doctrine of
stare decisis is
not an absolute bar to the reexamination of past interpretations of
the Constitution mean that the values underlying that doctrine may
be summarily put to one side. There is a strong public interest in
stability, and in the orderly conduct of our
Page 476 U. S. 781
affairs, that is served by a consistent course of constitutional
adjudication. Acceptance of the fundamental premises that underlie
the decision in
Roe v. Wade, as well as the application of
those premises in that case, places the primary responsibility for
decision in matters of childbearing squarely in the private sector
of our society. [
Footnote 2/11]
The majority remains free to preach the evils of birth control and
abortion and to persuade others to make correct decisions, while
the individual faced with the reality of a difficult choice having
serious and personal consequences of major importance to her own
future -- perhaps to the salvation of her own immortal soul --
remains free to seek and to obtain sympathetic guidance from those
who share her own value preferences.
In the final analysis, the holding in
Roe v. Wade
presumes that it is far better to permit some individuals to make
incorrect decisions than to deny all individuals the right to make
decisions that have a profound effect upon their destiny. Arguably
a very primitive society would have been protected from evil by a
rule against eating apples; a majority familiar with Adam's
experience might favor such a rule. But the lawmakers who placed a
special premium on the protection of
Page 476 U. S. 782
individual liberty have recognized that certain values are more
important than the will of a transient majority. [
Footnote 2/12]
[
Footnote 2/1]
Compare, e.g., his opinion for the Court in
Meachum
v. Fano, 427 U. S. 215
(1976),
with my dissent in that case,
id. at
427 U. S.
229.
[
Footnote 2/2]
See, e.g., Stevens, Judicial Restraint, 22 San Diego
L.Rev. 437, 449-450 (1985).
[
Footnote 2/3]
"The nature of the right invaded is pertinent, to be sure, for
statutes regulating sensitive areas of liberty do, under the cases
of this Court, require 'strict scrutiny,'
Skinner v.
Oklahoma, 316 U. S. 535,
316 U. S.
541, and 'must be viewed in the light of less drastic
means for achieving the same basic purpose.'
Shelton v.
Tucker, 364 U. S. 479,
364 U. S.
488."
"Where there is a significant encroachment upon personal
liberty, the State may prevail only upon showing a subordinating
interest which is compelling."
"
Bates v. Little Rock, 361 U. S.
516,
361 U. S. 524.
See also
McLaughlin v. Florida, 379 U. S. 184. But such
statutes, if reasonably necessary for the effectuation of a
legitimate and substantial state interest, and not arbitrary or
capricious in application, are not invalid under the Due Process
Clause.
Zemel v. Rusk, 381 U. S. 1."
381 U.S. at
381 U. S.
503-504.
[
Footnote 2/4]
At times, JUSTICE WHITE's rhetoric conflicts with his own
analysis. For instance, his emphasis on the lack of a decision by
"the people . . . in 1787, 1791, 1868, or any time since,"
post at
476 U. S. 797,
stands in sharp contrast to his earlier, forthright rejection
of
"the simplistic view that constitutional interpretation can
possibly be limited to 'the plain meaning' of the Constitution's
text or to the subjective intention of the Framers."
Post at
476 U. S. 789.
Similarly, his statement that an abortion decision should be
subject to "the will of the people,"
post at
476 U. S. 796,
does not take us very far in determining
which people --
the majorities in state legislatures or the individuals confronted
with unwanted pregnancies. In view of his agreement that the
decision about abortion is "a species of liberty" protected by the
Constitution, moreover,
post at
476 U. S. 790,
and in view of the fact that "liberty" plays a rather prominent
role in our Constitution, his suggestion that the Court's
evaluation of that interest represents the imposition of
"extraconstitutional value preferences,"
post at
476 U. S. 794,
seems to me inexplicable. This characterization of the Court's
analysis as "extraconstitutional" also does not reflect JUSTICE
WHITE's simultaneous recognition that
"[t]he Constitution . . . is a document announcing fundamental
principles in value-laden terms that leave ample scope for the
exercise of normative judgment by those charged with interpreting
and applying it."
Post at
476 U. S. 789.
Finally, I fail to see how the fact that "men and women of goodwill
and high commitment to constitutional government,"
post at
476 U. S. 793,
are on both sides of the abortion issue helps to resolve the
difficult constitutional question before us; I take it that the
disputants in most constitutional controversies in our free society
can be similarly characterized.
[
Footnote 2/5]
"What a person is, what he wants, the determination of his life
plan, of his concept of the good, are the most intimate expressions
of self-determination, and, by asserting a person's responsibility
for the results of this self-determination, we give substance to
the concept of liberty."
C. Fried, Right and Wrong, 146-147 (1978).
See also
Fried, Correspondence, 6 Phil. & Pub.Aff. 288-289 (1977) (the
concept of privacy embodies the "moral fact that a person belongs
to himself, and not others nor to society as a whole").
[
Footnote 2/6]
JUSTICE WHITE's characterization of the governmental interest as
"protecting those who will be citizens if their lives are not ended
in the womb,"
post at
476 U. S. 795,
reveals that his opinion may be influenced as much by his own value
preferences as by his view about the proper allocation of
decisionmaking responsibilities between the individual and the
State. For if federal judges must allow the State to make the
abortion decision, presumably the State is free to decide that a
woman may
never abort, may
sometimes abort, or,
as in the People's Republic of China, must
always abort if
her family is already too large. In contrast, our cases represent a
consistent view that the individual is primarily responsible for
reproductive decisions, whether the State seeks to prohibit
reproduction,
Skinner v. Oklahoma, 316 U.
S. 535 (1942), or to require it,
Roe v. Wade,
410 U. S. 113
(1973).
[
Footnote 2/7]
The responsibility for nurturing the soul of the newly born, as
well as the unborn, rests with individual parents, not with the
State. No matter how important a sacrament such as baptism may be,
a State surely could not punish a mother for refusing to baptize
her child.
[
Footnote 2/8]
No Member of this Court has ever suggested that a fetus is a
"person" within the meaning of the Fourteenth Amendment.
[
Footnote 2/9]
See Roe v. Wade, supra, at
410 U. S.
129-147.
[
Footnote 2/10]
He has, however, suggested that the concept of "liberty" is
limited by two basic "definitions" of the values at stake.
Post at
476 U. S.
790-791. Like JUSTICE WHITE, I share Justice Harlan's
concern about "judges . . . roaming at large in the constitutional
field."
Ibid.; see also Stevens, 22 San Diego L.Rev. at
449-450. But I am convinced that JUSTICE WHITE's use of
"definitions" is an inadequate substitute for the difficult process
of analysis and judgment that the guarantee of liberty requires, a
process nowhere better expressed than by Justice Harlan:
"Due process has not been reduced to any formula; its content
cannot be determined by reference to any code. The best that can be
said is that, through the course of this Court's decisions, it has
represented the balance which our Nation, built upon postulates of
respect for the liberty of the individual, has struck between that
liberty and the demands of organized society. If the supplying of
content to this Constitutional concept has, of necessity, been a
rational process, it certainly has not been one where judges have
felt free to roam where unguided speculation might take them. The
balance of which I speak is the balance struck by this country,
having regard to what history teaches are the traditions from which
it developed, as well as the traditions from which it broke. That
tradition is a living thing. A decision of this Court which
radically departs from it could not long survive, while a decision
which builds on what has survived is likely to be sound. No formula
could serve as a substitute, in this area, for judgment and
restraint."
"
* * * *"
"Each new claim to Constitutional protection must be considered
against a background of Constitutional purposes, as they have been
rationally perceived and historically developed. Though we exercise
limited and sharply restrained judgment, yet there is no
'mechanical yardstick,' no 'mechanical answer.' The decision of an
apparently novel claim must depend on grounds which follow closely
on well-accepted principles and criteria. The new decision must
take 'its place in relation to what went before and further [cut] a
channel for what is to come.'
Irvine v. California,
347 U. S.
128,
347 U. S. 147 (dissenting
opinion)."
Poe v. Ullman, 367 U. S. 497,
367 U. S.
542-544 (1961) (Harlan, J., dissenting).
[
Footnote 2/11]
"These cases do not deal with the individual's interest in
protection from unwarranted public attention, comment, or
exploitation. They deal, rather, with the individual's right to
make certain unusually important decisions that will affect his
own, or his family's, destiny. The Court has referred to such
decisions as implicating 'basic values,' as being 'fundamental,'
and as being dignified by history and tradition. The character of
the Court's language in these cases brings to mind the origins of
the American heritage of freedom -- the abiding interest in
individual liberty that makes certain state intrusions on the
citizen's right to decide how he will live his own life
intolerable. Guided by history, our tradition of respect for the
dignity of individual choice in matters of conscience and the
restraints implicit in the federal system, federal judges have
accepted the responsibility for recognition and protection of these
rights in appropriate cases."
Fitzgerald v. Porter Memorial Hospital, 523 F.2d 716,
719-720 (CA7 1975) (footnotes omitted),
cert. denied, 425
U.S. 916 (1976).
[
Footnote 2/12]
"The very purpose of a Bill of Rights was to withdraw certain
subjects from the vicissitudes of political controversy, to place
them beyond the reach of majorities and officials, and to establish
them as legal principles to be applied by the courts. One's right
to life, liberty, and property, to free speech, a free press,
freedom of worship and assembly, and other fundamental rights may
not be submitted to vote; they depend on the outcome of no
elections."
West Virginia Board of Education v. Barnette,
319 U. S. 624,
319 U. S. 638
(1943).
CHIEF JUSTICE BURGER, dissenting.
I agree with much of JUSTICE WHITE's and JUSTICE O'CONNOR's
dissents. In my concurrence in the companion case to
Roe v.
Wade, 410 U. S. 113, in
1973, I noted:
"I do not read the Court's holdings today as having the sweeping
consequences attributed to them by the dissenting Justices; the
dissenting views discount the reality that the vast majority of
physicians observe the standards of their profession, and act only
on the basis of carefully deliberated medical judgments relating to
life and health. Plainly, the Court today rejects any claim that
the Constitution requires abortions on demand."
Doe v. Bolton, 410 U. S. 179,
410 U. S. 208
(1973). Later, in
Maher v. Roe, 432 U.
S. 464,
432 U. S. 481
(1977), I stated my view that
"[t]he Court's holdings in
Roe . . . and
Doe v.
Bolton . . . simply require that a State not create an
absolute barrier to a woman's decision to have an abortion."
I based my concurring statements in
Roe and
Maher on the principle expressed in the Court's opinion in
Roe that the right to an abortion "is not unqualified, and
must be considered against important state interests in
regulation." 410 U.S. at
410 U. S.
154-155. In short, every Member of the
Roe
Court rejected the idea of abortion on demand. The Court's opinion
today, however, plainly undermines that important
Page 476 U. S. 783
principle, and I regretfully conclude that some of the concerns
of the dissenting Justices in
Roe, as well as the concerns
I expressed in my separate opinion, have now been realized.
The extent to which the Court has departed from the limitations
expressed in
Roe is readily apparent. In
Roe, the
Court emphasized
"that the State does have an important and legitimate interest
in preserving and protecting the health of the pregnant woman. . .
."
Id. at
410 U. S. 162.
Yet today the Court astonishingly goes so far as to say that the
State may not even require that a woman contemplating an abortion
be provided with accurate medical information concerning the risks
inherent in the medical procedure which she is about to undergo and
the availability of state-funded alternatives if she elects not to
run those risks. Can anyone doubt that the State could impose a
similar requirement with respect to other medical procedures? Can
anyone doubt that doctors routinely give similar information
concerning risks in countless procedures having far less impact on
life and health, both physical and emotional than an abortion, and
risk a malpractice lawsuit if they fail to do so?
Yet the Court concludes that the State cannot impose this simple
information-dispensing requirement in the abortion context where
the decision is fraught with serious physical, psychological, and
moral concerns of the highest order. Can it possibly be that the
Court is saying that the Constitution
forbids the
communication of such critical information to a woman?
* We have
apparently already passed the point at
Page 476 U. S. 784
which abortion is available merely on demand. If the statute at
issue here is to be invalidated, the "demand" will not even have to
be the result of an informed choice.
The Court in
Roe further recognized that the State "has
still
another important and legitimate interest" which is
"separate and distinct" from the interest in protecting maternal
health,
i.e., an interest in "protecting the potentiality
of human life."
Ibid. The point at which these interests
become "compelling" under
Roe is at viability of the
fetus.
Id. at
410 U. S. 163.
Today, however, the Court abandons that standard and renders the
solemnly stated concerns of the 1973
Roe opinion for the
interests of the states mere shallow rhetoric. The statute at issue
in this case requires that a second physician be present during an
abortion performed after viability, so that the second physician
can
"take control of the child and . . . provide immediate medical
care . . . taking all reasonable steps necessary, in his judgment,
to preserve the child's life and health."
18 Pa.Cons.Stat. § 3210(c) (1982).
Essentially this provision simply states that a viable fetus is
to be cared for, not destroyed. No governmental power exists to say
that a viable fetus should not have every protection required to
preserve its life. Undoubtedly the Pennsylvania Legislature added
the second physician requirement on the mistaken assumption that
this Court meant what it said in
Roe concerning the
"compelling interest" of the states in potential life after
viability.
The Court's opinion today is but the most recent indication of
the distance traveled since
Roe. Perhaps the first
important roadmarker was the Court's holding in
Planned
Parenthood of Central Missouri v. Danforth, 428 U. S.
52 (1976), in which the Court held (over the dissent of
JUSTICE WHITE,
Page 476 U. S. 785
joined by JUSTICE REHNQUIST and myself) that the State may not
require that minors seeking an abortion first obtain parental
consent. Parents, not judges or social workers, have the inherent
right and responsibility to advise their children in matters of
this sensitivity and consequence. Can one imagine a surgeon
performing an amputation or even an appendectomy on a 14-year-old
girl without the consent of a parent or guardian except in an
emergency situation?
Yet today the Court goes beyond
Danforth by remanding
for further consideration of the provisions of Pennsylvania's
statute requiring that a minor seeking an abortion without parental
consent petition the appropriate court for authorization. Even if I
were to agree that the Constitution requires that the states may
not provide that a minor receive parental consent before undergoing
an abortion, I would certainly hold that judicial approval may be
required. This is in keeping with the longstanding common law
principle that courts may function
in loco parentis when
parents are unavailable or neglectful, even though courts are not
very satisfactory substitutes when the issue is whether a 12-, 14-,
or 16-year-old unmarried girl should have an abortion. In my view,
no remand is necessary on this point, because the statutory
provision in question is constitutional.
In discovering constitutional infirmities in state regulations
of abortion that are in accord with our history and tradition, we
may have lured judges into "roaming at large in the constitutional
field."
Griswold v. Connecticut, 381 U.
S. 479,
381 U. S. 502
(1965) (Harlan, J., concurring). The soundness of our holdings must
be tested by the decisions that purport to follow them. If
Danforth and today's holding really mean what they seem to
say, I agree we should reexamine
Roe.
* The Court's astounding rationale for this holding is that such
information might have the effect of "discouraging abortion,"
ante at
476 U. S. 762,
as though abortion is something to be advocated and encouraged.
This is at odds not only with
Roe, but with our subsequent
abortion decisions as well. As I stated in my opinion for the Court
in
H. L. v. Matheson, 450 U. S. 398
(1981), upholding a Utah statute requiring that a doctor notify the
parents of a minor seeking an abortion:
"The Constitution does not compel a state to fine-tune its
statutes so as to encourage or facilitate abortions. To the
contrary, state action 'encouraging childbirth except in the most
urgent circumstances' is 'rationally related to the legitimate
governmental objective of protecting potential life.'"
Id. at
450 U. S. 413
(quoting
Hams v. McRae, 448 U. S. 297,
448 U. S. 325
(1980)).
JUSTICE WHITE, with whom JUSTICE REHNQUIST joins,
dissenting.
Today the Court carries forward the "difficult and continuing
venture in substantive due process,"
Planned Parenthood of
Central Missouri v. Danforth, 428 U. S.
52 (1976)
Page 476 U. S. 786
(WHITE, J., dissenting), that began with the decision in
Roe
v. Wade, 410 U. S. 113
(1973), and has led the Court further and further afield in the 13
years since that decision was handed down. I was in dissent in
Roe v. Wade, and am in dissent today. In Part I below, I
state why I continue to believe that this venture has been
fundamentally misguided since its inception. In
476 U.
S. I submit that, even accepting
Roe v. Wade,
the concerns underlying that decision by no means command or
justify the results reached today. Indeed, in my view, our
precedents in this area, applied in a manner consistent with sound
principles of constitutional adjudication, require reversal of the
Court of Appeals on the ground that the provisions before us are
facially constitutional. [
Footnote
3/1]
I
The rule of
stare decisis is essential if case-by-case
judicial decisionmaking is to be reconciled with the principle of
the
Page 476 U. S. 787
rule of law, for when governing legal standards are open to
revision in every case, deciding cases becomes a mere exercise of
judicial will, with arbitrary and unpredictable results. But
stare decisis is not the only constraint upon judicial
decisionmaking. Cases -- like this one -- that involve our assumed
power to set aside on grounds of unconstitutionality a state or
federal statute representing the democratically expressed will of
the people call other considerations into play. Because the
Constitution itself is ordained and established by the people of
the United States, constitutional adjudication by this Court does
not, in theory at any rate, frustrate the authority of the people
to govern themselves through institutions of their own devising and
in accordance with principles of their own choosing. But decisions
that find in the Constitution principles or values that cannot
fairly be read into that document usurp the people's authority, for
such decisions represent choices that the people have never made,
and that they cannot disavow through corrective legislation. For
this reason, it is essential that this Court maintain the power to
restore authority to its proper possessors by correcting
constitutional decisions that, on reconsideration, are found to be
mistaken.
The Court has therefore adhered to the rule that
stare
decisis is not rigidly applied in cases involving
constitutional issues,
see Glidden Co. v. Zdanok,
370 U. S. 530,
370 U. S. 543
(1962) (opinion of Harlan, J.), and has not hesitated to overrule
decisions, or even whole lines of cases, where experience,
scholarship, and reflection demonstrated that their fundamental
premises were not to be found in the Constitution.
Stare
decisis did not stand in the way of the Justices who, in the
late 1930's, swept away constitutional doctrines that had placed
unwarranted restrictions on the power of the State and Federal
Governments to enact social and economic legislation,
see
United States v. Darby, 312 U. S. 100
(1941);
West Coast Hotel Co. v. Parrish, 300 U.
S. 379 (1937). Nor did
stare decisis deter a
different set of Justices, some 15 years
Page 476 U. S. 788
later, from rejecting the theretofore prevailing view that the
Fourteenth Amendment permitted the States to maintain the system of
racial segregation.
Brown v. Board of Education,
347 U. S. 483
(1954). In both instances, history has been far kinder to those who
departed from precedent than to those who would have blindly
followed the rule of
stare decisis. And only last Term,
the author of today's majority opinion reminded us once again that
"when it has become apparent that a prior decision has departed
from a proper understanding" of the Constitution, that decision
must be overruled.
Garcia v. San Antonio Metropolitan Transit
Authority, 469 U. S. 528, 557
(1985).
In my view, the time has come to recognize that
Roe v.
Wade, no less than the cases overruled by the Court in the
decisions I have just cited, "departs from a proper understanding"
of the Constitution, and to overrule it. I do not claim that the
arguments in support of this proposition are new ones, or that they
were not considered by the Court in
Roe or in the cases
that succeeded it.
Cf. Akron v. Akron Center for Reproductive
Health, Inc., 462 U. S. 416,
462 U. S.
419-420 (1983). But if an argument that a constitutional
decision is erroneous must be novel in order to justify overruling
that precedent, the Court's decisions in
Lochner v. New
York, 198 U. S. 45
(1905), and
Plessy v. Ferguson, 163 U.
S. 537 (1896), would remain the law, for the doctrines
announced in those decisions were nowhere more eloquently or
incisively criticized than in the dissenting opinions of Justices
Holmes (in
Lochner) and Harlan (in both cases). That the
flaws in an opinion were evident at the time it was handed down is
hardly a reason for adhering to it.
A
Roe v. Wade posits that a woman has a fundamental right
to terminate her pregnancy, and that this right may be restricted
only in the service of two compelling state interests: the interest
in maternal health (which becomes compelling
Page 476 U. S. 789
only at the stage in pregnancy at which an abortion becomes more
hazardous than carrying the pregnancy to term) and the interest in
protecting the life of the fetus (which becomes compelling only at
the point of viability). A reader of the Constitution might be
surprised to find that it encompassed these detailed rules, for the
text obviously contains no references to abortion, nor, indeed, to
pregnancy or reproduction generally; and, of course, it is highly
doubtful that the authors of any of the provisions of the
Constitution believed that they were giving protection to abortion.
As its prior cases clearly show, however, this Court does not
subscribe to the simplistic view that constitutional interpretation
can possibly be limited to the "plain meaning" of the
Constitution's text, or to the subjective intention of the Framers.
The Constitution is not a deed setting forth the precise metes and
bounds of its subject matter; rather, it is a document announcing
fundamental principles in value-laden terms that leave ample scope
for the exercise of normative judgment by those charged with
interpreting and applying it. In particular, the Due Process Clause
of the Fourteenth Amendment, which forbids the deprivation of
"life, liberty, or property without due process of law," has been
read by the majority of the Court to be broad enough to provide
substantive protection against state infringement of a broad range
of individual interests.
See Moore v. East Cleveland,
431 U. S. 494,
431 U. S.
541-552 (1977) (WHITE, J., dissenting).
In most instances, the substantive protection afforded the
liberty or property of an individual by the Fourteenth Amendment is
extremely limited: state action impinging on individual interests
need only be rational to survive scrutiny under the Due Process
Clause, and the determination of rationality is to be made with a
heavy dose of deference to the policy choices of the legislature.
Only "fundamental" rights are entitled to the added protection
provided by strict judicial scrutiny of legislation that impinges
upon them.
See id. at
431 U. S. 499
(opinion of POWELL, J.);
id. at
431 U. S. 537
(Stewart, J., joined by
Page 476 U. S. 790
REHNQUIST, J., dissenting);
id. at
431 U. S.
547-549 (WHITE, J., dissenting). I can certainly agree
with the proposition -- which I deem indisputable -- that a woman's
ability to choose an abortion is a species of "liberty" that is
subject to the general protections of the Due Process Clause. I
cannot agree, however, that this liberty is so "fundamental" that
restrictions upon it call into play anything more than the most
minimal judicial scrutiny.
Fundamental liberties and interests are most clearly present
when the Constitution provides specific textual recognition of
their existence and importance. Thus, the Court is on relatively
firm ground when it deems certain of the liberties set forth in the
Bill of Rights to be fundamental, and therefore finds them
incorporated in the Fourteenth Amendment's guarantee that no State
may deprive any person of liberty without due process of law. When
the Court ventures further and defines as "fundamental" liberties
that are nowhere mentioned in the Constitution (or that are present
only in the so-called "penumbras" of specifically enumerated
rights), it must, of necessity, act with more caution, lest it open
itself to the accusation that, in the name of identifying
constitutional principles to which the people have consented in
framing their Constitution, the Court has done nothing more than
impose its own controversial choices of value upon the people.
Attempts to articulate the constraints that must operate upon
the Court when it employs the Due Process Clause to protect
liberties not specifically enumerated in the text of the
Constitution have produced varying definitions of "fundamental
liberties." One approach has been to limit the class of fundamental
liberties to those interests that are "implicit in the concept of
ordered liberty" such that "neither liberty nor justice would exist
if [they] were sacrificed."
Palko v. Connecticut,
302 U. S. 319,
302 U. S. 325,
302 U. S. 326
(1937);
see Moore v. East Cleveland, 431 U.S. at
431 U. S. 537
(Stewart, J., joined by REHNQUIST, J., dissenting). Another,
broader approach is
Page 476 U. S. 791
to define fundamental liberties as those that are "deeply rooted
in this Nation's history and tradition."
Id. at
431 U. S. 503
(opinion of POWELL, J.);
see also Griswold v. Connecticut,
381 U. S. 479,
381 U. S. 501
(1965) (Harlan, J., concurring). These distillations of the
possible approaches to the identification of unenumerated
fundamental rights are not, and do not purport to be, precise legal
tests or "mechanical yardstick[s],"
Poe v. Ullman,
367 U. S. 497,
367 U. S. 544
(1961) (Harlan, J., dissenting). Their utility lies in their effort
to identify some source of constitutional value that reflects not
the philosophical predilections of individual judges, but basic
choices made by the people themselves in constituting their system
of government -- "
the balance struck by this country,"
id. at
367 U. S. 542
(emphasis added) -- and they seek to achieve this end through
locating fundamental rights either in the traditions and consensus
of our society as a whole or in the logical implications of a
system that recognizes both individual liberty and democratic
order. Whether either of these approaches can, as Justice Harlan
hoped, prevent "judges from roaming at large in the constitutional
field,"
Griswold, supra, at
381 U. S. 502,
is debatable. What for me is not subject to debate, however, is
that either of the basic definitions of fundamental liberties,
taken seriously, indicates the illegitimacy of the Court's decision
in
Roe v. Wade.
The Court has justified the recognition of a woman's fundamental
right to terminate her pregnancy by invoking decisions upholding
claims of personal autonomy in connection with the conduct of
family life, the rearing of children, marital privacy, the use of
contraceptives, and the preservation of the individual's capacity
to procreate.
See Carey v. Population Services
International, 431 U. S. 678
(1977);
Moore v. East Cleveland, supra; Eisenstadt v.
Baird, 405 U. S. 438
(1972);
Griswold v. Connecticut, supra; Skinner v.
Oklahoma, 316 U. S. 535
(1942);
Pierce v. Society of Sisters, 268 U.
S. 510 (1925);
Meyer v. Nebraska, 262 U.
S. 390 (1923). Even if each of these cases was correctly
decided
Page 476 U. S. 792
and could be properly grounded in rights that are "implicit in
the concept of ordered liberty" or "deeply rooted in this Nation's
history and tradition," the issues in the cases cited differ from
those at stake where abortion is concerned. As the Court
appropriately recognized in
Roe v. Wade, "[t]he pregnant
woman cannot be isolated in her privacy," 410 U.S. at
410 U. S. 159;
the termination of a pregnancy typically involves the destruction
of another entity: the fetus. However one answers the metaphysical
or theological question whether the fetus is a "human being" or the
legal question whether it is a "person" as that term is used in the
Constitution, one must at least recognize, first, that the fetus is
an entity that bears in its cells all the genetic information that
characterizes a member of the species
homo sapiens and
distinguishes an individual member of that species from all others,
and second, that there is no nonarbitrary line separating a fetus
from a child or, indeed, an adult human being. Given that the
continued existence and development -- that is to say, the
life -- of such an entity are so directly at stake in the
woman's decision whether or not to terminate her pregnancy, that
decision must be recognized as
sui generis, different in
kind from the others that the Court has protected under the rubric
of personal or family privacy and autonomy. [
Footnote 3/2] Accordingly, the
Page 476 U. S. 793
decisions cited by the Court both in
Roe and in its
opinion today as precedent for the fundamental nature of the
liberty to choose abortion do not, even if all are accepted as
valid, dictate the Court's classification.
If the woman's liberty to choose an abortion is fundamental,
then it is not because any of our precedents (aside from
Roe itself) command or justify that result; it can only be
because protection for this unique choice is, itself, "implicit in
the concept of ordered liberty," or, perhaps, "deeply rooted in
this Nation's history and tradition." It seems clear to me that it
is neither. The Court's opinion in
Roe itself convincingly
refutes the notion that the abortion liberty is deeply rooted in
the history or tradition of our people, as does the continuing and
deep division of the people themselves over the question of
abortion. As for the notion that choice in the matter of abortion
is implicit in the concept of ordered liberty, it seems apparent to
me that a free, egalitarian, and democratic society does not
presuppose any particular rule or set of rules with respect to
abortion. And again, the fact that many men and women of good will
and high commitment to constitutional government place themselves
on both sides of the abortion controversy strengthens my own
conviction that the values animating the Constitution do not compel
recognition
Page 476 U. S. 794
of the abortion liberty as fundamental. In so denominating that
liberty, the Court engages not in constitutional interpretation,
but in the unrestrained imposition of its own extraconstitutional
value preferences. [
Footnote
3/3]
B
A second equally basic error infects the Court's decision in
Roe v. Wade. The detailed set of rules governing state
restrictions on abortion that the Court first articulated in
Roe and has since refined and elaborated presupposes not
only that the woman's liberty to choose an abortion is fundamental,
but also that the State's countervailing interest in protecting
fetal life (or, as the Court would have it, "potential human life,"
410 U.S. at
410 U. S. 159)
becomes "compelling" only at the point at which the fetus is
viable. As JUSTICE O'CONNOR pointed out three years ago in her
dissent in
Akron v. Akron Center for Reproductive Health,
Inc., 462 U.S. at
462 U. S. 461,
the Court's choice of viability as the point at which the State's
interest becomes compelling is entirely arbitrary. The Court's
"explanation" for the line it has drawn is that the State's
interest becomes compelling at viability "because the fetus then
presumably has the capacity of meaningful life outside the mother's
womb." 410 U.S. at
410 U. S. 163.
As one critic
Page 476 U. S. 795
of
Roe has observed, this argument "mistakes a
definition for a syllogism." Ely, The Wages of Crying Wolf: A
Comment on
Roe v. Wade, 82 Yale L.J. 920, 924 (1973).
The governmental interest at issue is in protecting those who
will be citizens if their lives are not ended in the womb. The
substantiality of this interest is in no way dependent on the
probability that the fetus may be capable of surviving outside the
womb at any given point in its development, as the possibility of
fetal survival is contingent on the state of medical practice and
technology, factors that are in essence morally and
constitutionally irrelevant. The State's interest is in the fetus
as an entity in itself, and the character of this entity does not
change at the point of viability under conventional medical wisdom.
Accordingly, the State's interest, if compelling after viability,
is equally compelling before viability. [
Footnote 3/4]
Page 476 U. S. 796
C
Both the characterization of the abortion liberty as fundamental
and the denigration of the State's interest in preserving the lives
of nonviable fetuses are essential to the detailed set of
constitutional rules devised by the Court to limit the States'
power to regulate abortion. If either or both of these facets of
Roe v. Wade were rejected, a broad range of limitations on
abortion (including outright prohibition) that are now unavailable
to the States would again become constitutional possibilities.
In my view, such a state of affairs would be highly desirable
from the standpoint of the Constitution. Abortion is a hotly
contested moral and political issue. Such issues, in our society,
are to be resolved by the will of the people, either as expressed
through legislation or through the general principles they have
already incorporated into the Constitution they have adopted.
[
Footnote 3/5]
Roe v. Wade
implies that the people
Page 476 U. S. 797
have already resolved the debate by weaving into the
Constitution the values and principles that answer the issue. As I
have argued, I believe it is clear that the people have never --
not in 1787, 1791, 1868, or at any time since -- done any such
thing. I would return the issue to the people by overruling
Roe
v. Wade.
II
As it has evolved in the decisions of this Court, the freedom
recognized by the Court in
Roe v. Wade and its progeny is
essentially a negative one, based not on the notion that abortion
is a good in itself, but only on the view that the legitimate goals
that may be served by state coercion of private choices regarding
abortion are, at least under some circumstances, outweighed by the
damage to individual autonomy and privacy that such coercion
entails. In other words, the evil of abortion does not justify the
evil of forbidding it.
Cf. Stanley v. Georgia,
394 U. S. 557
(1969). But precisely because
Roe v. Wade is not premised
on the notion that abortion is itself desirable (either as a matter
of constitutional entitlement or of social policy), the decision
does not command the States to fund or encourage abortion, or even
to approve
Page 476 U. S. 798
of it. Rather, we have recognized that the States may
legitimately adopt a policy of encouraging normal childbirth,
rather than abortion, so long as the measures through which that
policy is implemented do not amount to direct compulsion of the
woman's choice regarding abortion.
Harris v. McRae,
448 U. S. 297
(1980);
Maher v. Roe, 432 U. S. 464
(1977);
Beal v. Doe, 432 U. S. 438
(1977). The provisions before the Court today quite obviously
represent the State's effort to implement such a policy.
The majority's opinion evinces no deference toward the State's
legitimate policy. Rather, the majority makes it clear from the
outset that it simply disapproves of any attempt by Pennsylvania to
legislate in this area. The history of the state legislature's
decade-long effort to pass a constitutional abortion statute is
recounted as if it were evidence of some sinister conspiracy.
See ante at
476 U. S.
751-752. In fact, of course, the legislature's past
failure to predict the evolution of the right first recognized in
Roe v. Wade is understandable, and is, in itself, no
ground for condemnation. Moreover, the legislature's willingness to
pursue permissible policies through means that go to the limits
allowed by existing precedents is no sign of
mens rea. The
majority, however, seems to find it necessary to respond by
changing the rules to invalidate what before would have seemed
permissible. The result is a decision that finds no justification
in the Court's previous holdings, departs from sound principles of
constitutional and statutory interpretation, and unduly limits the
State's power to implement the legitimate (and in some
circumstances compelling) policy of encouraging normal childbirth
in preference to abortion.
A
The Court begins by striking down statutory provisions designed
to ensure that the woman's choice of an abortion is fully informed
-- that is, that she is aware not only of the reasons for having an
abortion, but also of the risks associated with an abortion and the
availability of assistance that might
Page 476 U. S. 799
make the alternative of normal childbirth more attractive than
it might otherwise appear. At first blush, the Court's action seems
extraordinary: after all,
Roe v. Wade purports to be about
freedom of choice, and statutory provisions requiring that a woman
seeking an abortion be afforded information regarding her decision
not only do not limit her ability to choose abortion, but also
would appear to enhance her freedom of choice by helping to ensure
that her decision whether or not to terminate her pregnancy is an
informed one. Indeed, maximization of the patient's freedom of
choice -- not restriction of his or her liberty -- is generally
perceived to be the principal value justifying the imposition of
disclosure requirements upon physicians:
"The root premise is the concept, fundamental in American
jurisprudence, that '[e]very human being of adult years and sound
mind has a right to determine what shall be done with his own body.
. . .' True consent to what happens to one's self is the informed
exercise of a choice, and that entails an opportunity to evaluate
knowledgeably the options available and the risks attendant upon
each. The average patient has little or no understanding of the
medical arts, and ordinarily has only his physician to whom he can
look for enlightenment with which to reach an intelligent decision.
From these almost axiomatic considerations springs the need, and in
turn the requirement, of a reasonable divulgence by physician to
patient to make such a decision possible."
Canterbury v. Spence, 150 U.S.App.D.C. 263, 271, 464
F.2d 772, 780 (1972).
One searches the majority's opinion in vain for a convincing
reason why the apparently laudable policy of promoting informed
consent becomes unconstitutional when the subject is abortion. The
majority purports to find support in
Akron v. Akron Center for
Reproductive Health, Inc., 462 U. S. 416
(1983). But
Akron is not controlling. The informed
Page 476 U. S. 800
consent provisions struck down in that case, as characterized by
the majority, required the physician to advance tendentious
statements concerning the unanswerable question of when human life
begins, to offer merely speculative descriptions of the anatomical
features of the fetus carried by the woman seeking the abortion,
and to recite a "parade of horribles" suggesting that abortion is
"a particularly dangerous procedure."
Id. at
462 U. S.
444-445. I have no quarrel with the general proposition,
for which I read
Akron to stand, that a campaign of
state-promulgated disinformation cannot be justified in the name of
"informed consent" or "freedom of choice." But the Pennsylvania
statute before us cannot be accused of sharing the flaws of the
ordinance at issue in
Akron. As the majority concedes, the
statute does not, on its face, require that the patient be given
any information that is false or unverifiable. Moreover, it is
unquestionable that all of the information required would be
relevant in many cases to a woman's decision whether or not to
obtain an abortion.
Why, then, is the statute unconstitutional? The majority's
argument, while primarily rhetorical, appears to offer three
answers. First, the information that must be provided will in some
cases be irrelevant to the woman's decision. This is true. Its
pertinence to the question of the statute's constitutionality,
however, is beyond me. Legislators are ordinarily entitled to
proceed on the basis of rational generalizations about the subject
matter of legislation, and the existence of particular cases in
which a feature of a statute performs no function (or is even
counterproductive) ordinarily does not render the statute
unconstitutional, or even constitutionally suspect. Only where the
statute is subject to heightened scrutiny by virtue of its
impingement on some fundamental right or its employment of a
suspect classification does the imprecision of the "fit" between
the statute's ends and means become potentially damning. Here,
there is nothing to trigger such scrutiny, for the statute does not
directly
Page 476 U. S. 801
infringe the allegedly fundamental right at issue -- the woman's
right to choose an abortion. Indeed, I fail to see how providing a
woman with accurate information -- whether relevant or irrelevant
-- could ever be deemed to impair any constitutionally protected
interest (even if, as the majority hypothesizes, the information
may upset her). Thus, the majority's observation that the statute
may require the provision of irrelevant information in some cases
is itself an irrelevancy.
Second, the majority appears to reason that the informed consent
provisions are invalid because the information they require may
increase the woman's "anxiety" about the procedure, and even
"influence" her in her choice. Again, both observations are
undoubtedly true; but they by no means cast the constitutionality
of the provisions into question. It is in the very nature of
informed consent provisions that they may produce some anxiety in
the patient and influence her in her choice. This is in fact their
reason for existence, and -- provided that the information required
is accurate and nonmisleading -- it is an entirely salutary reason.
If information may reasonably affect the patient's choice, the
patient should have that information; and, as one authority has
observed,
"the greater the likelihood that particular information will
influence [the patient's] decision, the more essential the
information arguably becomes for securing her informed
consent."
Appleton, Doctors, Patients and the Constitution, 63 Wash.U.L.Q.
183, 211 (1986). That the result of the provision of information
may be that some women will forgo abortions by no means suggests
that providing the information is unconstitutional, for the
ostensible objective of
Roe v. Wade is not maximizing the
number of abortions, but maximizing choice. Moreover, our decisions
in
Maher, Beal, and
Harris v. McRae all indicate
that the State may encourage women to make their choice in favor of
childbirth, rather than abortion, and the provision of accurate
information regarding abortion
Page 476 U. S. 802
and its alternatives is a reasonable and fair means of achieving
that objective.
Third, the majority concludes that the informed consent
provisions are invalid because they "intrud[e] upon the discretion
of the pregnant woman's physician,"
ante at
476 U. S. 762,
violate "the privacy of the informed consent dialogue between the
woman and her physician,"
ibid., and "officially
structur[e]" that dialogue,
ante at
476 U. S. 763.
The provisions thus constitute "state medicine" that "infringes
upon [the physician's] professional responsibilities."
Ibid. This is nonsensical. I can concede that the
Constitution extends its protection to certain zones of personal
autonomy and privacy,
see Griswold v. Connecticut, 381
U.S. at
381 U. S. 502
(WHITE, J., concurring in judgment), and I can understand, if not
share, the notion that that protection may extend to a woman's
decision regarding abortion. But I cannot concede the possibility
that the Constitution provides more than minimal protection for the
manner in which a physician practices his or her profession or for
the "dialogues" in which he or she chooses to participate in the
course of treating patients. I had thought it clear that regulation
of the practice of medicine, like regulation of other professions
and of economic affairs generally, was a matter peculiarly within
the competence of legislatures, and that such regulation was
subject to review only for rationality.
See, e.g., Williamson
v. Lee Optical of Oklahoma, Inc., 348 U.
S. 483 (1955).
Were the Court serious about the need for strict scrutiny of
regulations that infringe on the "judgment" of medical
professionals, "structure" their relations with their patients, and
amount to "state medicine," there is no telling how many state and
federal statutes (not to mention principles of state tort law)
governing the practice of medicine might be condemned. And of
course, there would be no reason why a concern for professional
freedom could be confined to the medical profession: nothing in the
Constitution indicates a preference for the liberty of doctors over
that of lawyers,
Page 476 U. S. 803
accountants, bakers, or brickmakers. Accordingly, if the State
may not "structure" the dialogue between doctor and patient, it
should also follow that the State may not, for example, require
attorneys to disclose to their clients information concerning the
risks of representing the client in a particular proceeding. Of
course, we upheld such disclosure requirements only last Term.
See Zauderer v. Office of Disciplinary Counsel,
471 U. S. 626
(1985).
The rationale for state efforts to regulate the practice of a
profession or vocation is simple: the government is entitled not to
trust members of a profession to police themselves, and accordingly
the legislature may, for the most part, impose such restrictions on
the practice of a profession or business as it may find necessary
to the protection of the public. This is precisely the rationale
for infringing the professional freedom of doctors by imposing
disclosure requirements upon them:
"Respect for the patient's right of self-determination on
particular therapy demands a standard set by law for physicians,
rather than one which physicians may or may not impose upon
themselves."
Canterbury v. Spence, 150 U.S.App.D.C. at 275, 464 F.2d
at 784. Unless one is willing to recast entirely the law with
respect to the legitimacy of state regulation of professional
conduct, the obvious rationality of the policy of promoting
informed patient choice on the subject of abortion must defeat any
claim that the disclosure requirements imposed by Pennsylvania are
invalid because they infringe on "professional freedom" or on the
"physician-patient relationship."
I do not really believe that the Court's invocation of
professional freedom signals a retreat from the principle that the
Constitution is largely unconcerned with the substantive aspects of
governmental regulation of professional and business relations.
Clearly, the majority is uninterested in undermining the edifice of
post-New Deal constitutional law by extending its holding to cases
that do not concern the issue of abortion. But if one assumes, as I
do, that the majority
Page 476 U. S. 804
is unwilling to commit itself to the implications of that part
of its rhetoric which smacks of economic due process rights for
physicians, it becomes obvious that the talk of "infringement of
professional responsibility" is mere window dressing for a holding
that must stand or fall on other grounds. And because the informed
consent provisions do not infringe the essential right at issue --
the right of the woman to choose to have an abortion -- the
majority's conclusion that the provisions are unconstitutional is
without foundation.
B
The majority's decision to strike down the reporting
requirements of the statute is equally extraordinary. The
requirements obviously serve legitimate purposes. The information
contained in the reports is highly relevant to the State's efforts
to enforce § 3210(a) of the statute, which forbids abortion of
viable fetuses except when necessary to the mother's health. The
information concerning complications plainly serves the legitimate
goal of advancing the state of medical knowledge concerning
maternal and fetal health.
See Planned Parenthood of Central
Missouri v. Danforth, 428 U.S. at
428 U. S. 80.
Given that the subject of abortion is a matter of considerable
public interest and debate (constrained to some extent, of course,
by the preemptive effect of this Court's ill-conceived
constitutional decisions), the collection and dissemination of
demographic information concerning abortions is clearly a
legitimate goal of public policy. Moreover, there is little reason
to believe that the required reports, though fairly detailed, would
impose an undue burden on physicians and impede the ability of
their patients to obtain abortions, as all of the information
required would necessarily be readily available to a physician who
had performed an abortion. Accordingly, under this Court's prior
decisions in this area, the reporting requirements are
constitutional.
Planned Parenthood Assn. of Kansas City,
Missouri, Inc. v. Ashcroft, 462 U. S. 476,
462 U. S.
486-490 (1983) (opinion of POWELL,
Page 476 U. S. 805
J.);
id. at
462 U. S. 505
(opinion of O'CONNOR, J.);
Planned Parenthood of Central
Missouri v. Danforth, supra, at
428 U. S.
79-81.
Nonetheless, the majority strikes down the reporting
requirements because it finds that, notwithstanding the explicit
statutory command that the reports be made public only in a manner
ensuring anonymity,
"the amount of information about [the patient] and the
circumstances under which she had an abortion are so detailed that
identification is likely,"
ante at
476 U. S. 767,
and that "[i]dentification is the obvious purpose of these extreme
reporting requirements,"
ibid. Where these "findings" come
from is mysterious, to say the least. The Court of Appeals did not
make any such findings on the record before it, and the District
Court expressly found that
"the requirements of confidentiality in § 3214(e) regarding the
identity of both patient and physician prevent any invasion of
privacy which could present a legally significant burden on the
abortion decision."
552 F.
Supp. 791, 804 (ED Pa.1982). Rather than pointing to anything
in the record that demonstrates that the District Court's
conclusion is erroneous, the majority resorts to the handy, but
mistaken, solution of substituting its own view of the facts and
strikes down the statute.
I can accept the proposition that a statute whose purpose and
effect are to allow harassment and intimidation of citizens for
their constitutionally protected conduct is unconstitutional, but
the majority's action in striking down the Pennsylvania statute on
this basis is procedurally and substantively indefensible. First,
it reflects a complete disregard for the principle, embodied in
Federal Rule of Civil Procedure 52(a), that an appellate court must
defer to a trial court's findings of facts unless those findings
are clearly erroneous. The Rule is expressly applicable to findings
of fact that constitute the grounds for a district court's action
granting or refusing a preliminary injunction, and, of course, the
Rule limits this Court to the same degree as it does any other
Page 476 U. S. 806
federal appellate court,
see United States v. General
Dynamics Corp., 415 U. S. 486
(1974).
Second, the majority has seriously erred in purporting to make a
final determination of fact, conclusive of the constitutionality of
the statute, on a motion for preliminary injunction. In so doing,
the Court overlooks the principle that, although a district court's
findings of fact on a motion for a preliminary injunction are
entitled to deference on appeal from the grant or denial of
preliminary relief, "the findings of fact . . . made by a court
granting a preliminary injunction are
not binding at trial
on the merits," because
"a preliminary injunction is customarily granted on the basis of
procedures that are less formal and evidence that is less complete
than in a trial on the merits."
University of Texas v. Camenisch, 451 U.
S. 390,
451 U. S. 395
(1981) (emphasis added). What
Camenisch stated to be true
customarily is also true in this case: the record on which the
motion for preliminary injunction was decided in the trial court
consisted solely of affidavits and a stipulation of undisputed
facts, none of which provides a sufficient basis for a conclusive
finding on the complex question of the motive and effect of the
reporting requirements and the adequacy of the statute's protection
of the anonymity of doctors and patients. Issuing what amounts to a
final declaratory judgment on the constitutionality of the statute
under these circumstances is highly inappropriate.
Finally, in addition to being procedurally flawed, the
majority's holding is substantively suspect. The information
contained in the reports identifies the patient on the basis of
age, race, marital status, and "political subdivision" of
residence; the remainder of the information included in the reports
concerns the medical aspects of the abortion. It is implausible
that a particular patient could be identified on the basis of the
combination of the general identifying information and the specific
medical information in these reports by anyone who did not already
know (at a minimum) that the woman had been pregnant and obtained
an abortion.
Page 476 U. S. 807
Accordingly, the provisions pose little or no threat to the
woman's privacy.
In sum, there is no basis here even for a preliminary injunction
against the reporting provisions of the statute, much less for a
final determination that the provisions are unconstitutional.
C
The majority resorts to linguistic nit-picking in striking down
the provision requiring physicians aborting viable fetuses to use
the method of abortion most likely to result in fetal survival
unless that method would pose a "significantly greater medical risk
to the life or health of the pregnant woman" than would other
available methods. The majority concludes that the statute's use of
the word "significantly" indicates that the statute represents an
unlawful "trade-off" between the woman's health and the chance of
fetal survival. Not only is this conclusion based on a wholly
unreasonable interpretation of the statute, but the statute would
also be constitutional even if it meant what the majority says it
means.
The majority adopts the Court of Appeals' view that the
statute's use of the term "significantly" renders it "
not
susceptible to a construction that does not require the mother to
bear an increased medical risk in order to save her viable fetus.'"
Ante at 476 U. S. 769
(quoting 737 F.2d 283, 300 (CA3 1984)). The term "significant" in
this context, however, is most naturally read as synonymous with
the terms "meaningful," "cognizable," "appreciable," or
"nonnegligible." That is, the statute requires only that the risk
be a real and identifiable one. Surely, if the State's interest in
preserving the life of a viable fetus is, as Roe purported
to recognize, a compelling one, the State is at the very least
entitled to demand that that interest not be subordinated to a
purported maternal health risk that is, in fact, wholly
insubstantial. The statute, on its face, demands no more than this
of a doctor performing an abortion of a viable fetus.
Page 476 U. S. 808
Even if the Pennsylvania statute is properly interpreted as
requiring a pregnant woman seeking abortion of a viable fetus to
endure a method of abortion chosen to protect the health of the
fetus despite the existence of an alternative that, in some
substantial degree, is more protective of her own health, I am not
convinced that the statute is unconstitutional. The Court seems to
read its earlier opinion in
Colautti v. Franklin,
439 U. S. 379
(1979), as incorporating a
holding that tradeoffs between
the health of the pregnant woman and the survival of her viable
fetus are constitutionally impermissible under
Roe v.
Wade. Of course,
Colautti held no such thing: the
Court there stated only that it did not address the "serious
ethical and constitutional difficulties" that such a tradeoff would
present. 439 U.S. at
439 U. S. 400.
[
Footnote 3/6] Nothing in
Colautti or any of the Court's previous abortion decisions
compels the
per se "tradeoff " rule the Court adopts
today.
The Court's ruling in this respect is not even consistent with
its decision in
Roe v. Wade. In
Roe, the Court
conceded that the State's interest in preserving the life of a
viable fetus is a compelling one, and the Court has never disavowed
that concession. The Court now holds that this compelling interest
cannot justify
any regulation that imposes a quantifiable
medical risk upon the pregnant woman who seeks to abort a viable
fetus: if attempting to save the fetus imposes any additional risk
of injury to the woman, she must be permitted to kill it. This
holding hardly accords with the usual understanding of the term
"compelling interest," which we have used to describe those
governmental interests that are so weighty as to justify
substantial and ordinarily impermissible impositions on the
individual -- impositions that, I had thought, could include the
infliction of
Page 476 U. S. 809
some degree of risk of physical harm. The most obvious
illustration of this principle may be found in the opinion of the
elder Justice Harlan in
Jacobson v. Massachusetts,
197 U. S. 11,
197 U. S. 29
(1905):
"The liberty secured by the Fourteenth Amendment . . . consists,
in part, in the right of a person
to live and work where he
will,' Allgeyer v. Louisiana, 165 U.
S. 578; and yet he may be compelled, by force if need
be, against his will and without regard to his personal wishes or
his pecuniary interests, . . . to take his place in the ranks of
the army of his country and risk the chance of being shot down in
its defense."
The actual holding of
Jacobson provides another
illustration, more pertinent to this particular case: the Court
there sustained a regulation requiring all adult citizens of
Cambridge, Massachusetts, to be vaccinated against smallpox,
notwithstanding that exposure to vaccination carried with it a
statistical possibility of serious illness and even death. If, as I
believe these examples demonstrate, a compelling state interest may
justify the imposition of some physical danger upon an individual,
and if, as the Court has held, the State has a compelling interest
in the preservation of the life of a viable fetus, I find the
majority's unwillingness to tolerate the imposition of
any
nonnegligible risk of injury to a pregnant woman in order to
protect the life of her viable fetus in the course of an abortion
baffling.
The Court's ruling today that any tradeoff between the woman's
health and fetal survival is impermissible is not only inconsistent
with
Roe's recognition of a compelling state interest in
viable fetal life; it directly contradicts one of the essential
holdings of
Roe -- that is, that the State may forbid
all postviability abortions except when
necessary
to protect the life or health of the pregnant woman. As is evident,
this holding itself involves a tradeoff between maternal health and
protection of the fetus, for it plainly permits the State to forbid
a postviability abortion even when such an abortion may be
statistically safer than carrying the pregnancy to
Page 476 U. S. 810
term, provided that the abortion is not medically necessary.
[
Footnote 3/7] The tradeoff
contained in the Pennsylvania statute, even as interpreted by the
majority, is no different in kind: the State has simply required
that, when an abortion of some kind is medically necessary, it
shall be conducted so as to spare the fetus (to the greatest degree
possible) unless a method less protective of the fetus is itself to
some degree medically necessary for the woman. That this choice may
involve the imposition of some risk on the woman undergoing the
abortion should be no more troublesome than that a prohibition on
nonnecessary postviability abortions may involve the imposition of
some risk on women who are thereby forced to continue their
pregnancies to term; yet, for some reason, the Court concludes
that, whereas the tradeoffs it devises are compelled by the
Constitution, the essentially indistinguishable tradeoff the State
has attempted is foreclosed. This cannot be the law.
The framework of rights and interests devised by the Court in
Roe v. Wade indicates that, just as a State may prohibit a
postviability abortion unless it is necessary to protect the life
or health of the woman, the State may require that postviability
abortions be conducted using the method most protective of the
fetus unless a less protective method is necessary to protect the
life or health of the woman. Under this standard, the Pennsylvania
statute -- which does not require the woman to accept any
significant health risks to protect the fetus -- is plainly
constitutional.
D
The Court strikes down the statute's second physician
requirement because, in its view, the existence of a medical
emergency requiring an immediate abortion to save the life of the
pregnant woman would not be a defense to a prosecution
Page 476 U. S. 811
under the statute. The Court does not question the proposition,
established in the
Ashcroft case, that a second physician
requirement, accompanied by an exception for emergencies, is a
permissible means of vindicating the compelling state interest in
protecting the lives of viable fetuses. Accordingly, the majority's
ruling on this issue does not, on its face, involve a substantial
departure from the Court's previous decisions.
What is disturbing about the Court's opinion on this point is
not the general principle on which it rests, but the manner in
which that principle is applied. The Court brushes aside the fact
that the section of the statute in which the second physician
requirement is imposed states that
"[i]t shall be a complete defense to
any charge brought
against a physician for violating the requirements
of this
section that he had concluded, in good faith, in his best
medical judgment, . . . that the abortion was necessary to preserve
maternal life or health"
(emphasis added). 18 Pa.Cons.Stat. § 3210(a) (1982). This
language is obviously susceptible of the construction the State
advances: namely, that it is a defense to a charge of violating the
second physician requirement that the physician performing the
abortion believed that performing an abortion in the absence of a
second physician was necessary to the life or health of the
mother.
The Court's rejection of this construction is based on its
conclusion that the statutory language "does not relate to the
second physician requirement," and that "its words are not words of
emergency."
Ante at
476 U. S. 771.
This reasoning eludes me. The defense of medical necessity
"relates" to any charge that a doctor has violated one of the
requirements of the section in which it appears, and the second
physician requirement is imposed by that section. The defense thus
quite evidently "relates" to the second physician requirement.
True, the "words" of the defense are not "words of emergency," but
words of necessity. Why this should make a difference is unclear: a
defense of medical necessity is fully as protective of the
interests of the pregnant woman as a defense of
Page 476 U. S. 812
"emergency." The Court falls back,
ibid., on the notion
that the legislature "knows how to provide a medical emergency
exception when it chooses to do so." No doubt. But the legislature
obviously also "knows how" to provide a medical necessity
exception, and it has done so. Why this exception is insufficient
is unexplained, and inexplicable.
The Court's rejection of a perfectly plausible reading of the
statute flies in the face of the principle -- which until today I
had thought applicable to abortion statutes as well as to other
legislative enactments -- that, "[w]here fairly possible, courts
should construe a statute to avoid a danger of
unconstitutionality."
Planned Parenthood Assn. of Kansas City,
Missouri, Inc. v. Ashcroft, 462 U.S. at
462 U. S. 493.
The Court's reading is obviously based on an entirely different
principle: that, in cases involving abortion, a permissible reading
of a statute is to be avoided at all costs. Not sharing this
viewpoint, I cannot accept the majority's conclusion that the
statute does not provide for the equivalent of a defense of
emergency. [
Footnote 3/8]
E
Finally, the majority refuses to vacate the preliminary
injunction entered against the enforcement of the parental notice
and consent provisions of the statute.
See ante at
476 U. S. 758,
n. 9. The reason offered is that the propriety of the injunction
depends upon the adequacy of the rules, recently promulgated by the
Pennsylvania Supreme Court, setting forth
Page 476 U. S. 813
procedures by which a minor desiring an abortion may speedily
and confidentially obtain either judicial approval of her decision
to obtain an abortion or a judicial determination that she herself
is capable of an informed consent to the procedure. The Court
concludes that review of the rules is best carried out, in the
first instance, in the District Court.
The Court's decision in
Ashcroft, however, compels the
conclusion that the Third Circuit erred in directing that the
operation of the parental notice and consent provisions be enjoined
pending promulgation of the required rules; accordingly, the
injunction should be vacated irrespective of the adequacy of those
rules. As the Court of Appeals apparently recognized, the
Pennsylvania statute, on its face, is substantively identical to
that upheld by the Court in
Ashcroft; thus, the sole basis
for the injunction ordered by the Court of Appeals was the absence
of procedural rules implementing the statute. What the Court of
Appeals failed to recognize was that this Court denied relief to
the plaintiffs challenging the statute in
Ashcroft despite
the same purported defect: in that case, as in this, the State
Supreme Court had not yet promulgated rules establishing the
expedited procedures called for by the statute. Nonetheless, as
JUSTICE POWELL's opinion explained, the plaintiffs were not
entitled to any relief against enforcement of the statutory scheme,
as "[t]here is no reason to believe that [the State] will not
expedite any appeal consistent with the mandate in our prior
opinions." 462 U.S. at
462 U. S. 491,
n. 16. Similarly, there was no reason here for the Court of Appeals
to believe that Pennsylvania would not provide for the adequate,
expedited procedures contemplated by the statute; thus, its entry
of an injunction against enforcement of the statute was
erroneous.
III
The decision today appears symptomatic of the Court's own
insecurity over its handiwork in
Roe v. Wade and the cases
following that decision. Aware that, in
Roe, it
essentially
Page 476 U. S. 814
created something out of nothing, and that there are many in
this country who hold that decision to be basically illegitimate,
the Court responds defensively. Perceiving, in a statute
implementing the State's legitimate policy of preferring childbirth
to abortion, a threat to or criticism of the decision in
Roe v.
Wade, the majority indiscriminately strikes down statutory
provisions that in no way contravene the right recognized in
Roe. I do not share the warped point of view of the
majority, nor can I follow the tortuous path the majority treads in
proceeding to strike down the statute before us. I dissent.
[
Footnote 3/1]
I shall, for the most part, leave to one side the Court's
somewhat extraordinary procedural rulings. I do not strongly
disagree with the Court's decision to read a finality requirement
into 28 U.S.C. § 1264(2), although I would have thought it
incumbent on the Court to explain why the Court of Appeals'
judgment as to the statutory provisions before us today, which
represents a definitive ruling on their constitutionality, is not
sufficiently "final" to satisfy the jurisdictional statute as
interpreted by the Court.
As for the Court's ruling that it is permissible for an
appellate court to resolve an appeal from the grant or the denial
of a preliminary injunction by issuing a final judgment as to the
constitutionality of a statute, I do not disagree that this may, in
rare cases, be an appropriate course of action where the
constitutional issues are clear. I would stress that this is by no
means the preferred course of action in the run of cases, and I
assume that the majority's opinion is not to the contrary. I do
disagree quite strongly with the majority's application of this
principle here, as I believe, contrary to the majority, that it is
quite evident that the statute before us is constitutional on its
face. I also believe, as will become evident, that at least one of
the Court's rulings is exceedingly inappropriate in view of the
preliminary posture of this case, even if the majority's legal
premises are accepted.
[
Footnote 3/2]
That the abortion decision, like the decisions protected in
Griswold, Eisenstadt, and
Carey, concerns
childbearing (or, more generally, family life) in no sense
necessitates a holding that the liberty to choose abortion is
"fundamental." That the decision involves the destruction of the
fetus renders it different in kind from the decision not to
conceive in the first place. This difference does not go merely to
the weight of the state interest in regulating abortion; it affects
as well the characterization of the liberty interest itself. For if
the liberty to make certain decisions with respect to contraception
without governmental constraint is "fundamental," it is not only
because those decisions are "serious" and "important" to the
individual,
see ante at
476 U. S. 776
(STEVENS, J., concurring), but also because some value of privacy
or individual autonomy that is somehow implicit in the scheme of
ordered liberties established by the Constitution supports a
judgment that such decisions are none of government's business. The
same cannot be said where, as here, the individual is not "isolated
in her privacy."
My point can be illustrated by drawing on a related area in
which fundamental liberty interests have been found: childrearing.
The Court's decisions in
Moore v. East Cleveland, Pierce v.
Society of Sisters, and
Meyer v. Nebraska, can be
read for the proposition that parents have a fundamental liberty to
make decisions with respect to the upbringing of their children.
But no one would suggest that this fundamental liberty extends to
assaults committed upon children by their parents. It is not the
case that parents have a fundamental liberty to engage in such
activities, and that the State may intrude to prevent them only
because it has a compelling interest in the wellbeing of children;
rather, such activities, by their very nature, should be viewed as
outside the scope of the fundamental liberty interest.
[
Footnote 3/3]
JUSTICE STEVENS asserts,
ante at
476 U. S. 778,
that I am "quite wrong in suggesting that the Court is imposing
value preferences on anyone else" when it denominates the liberty
to choose abortion as "fundamental" (in contradistinction to such
other, nonfundamental liberties as the liberty to use dangerous
drugs or to operate a business without governmental interference),
and thereby disempowers state electoral majorities from legislating
in this area. I can only respond that I cannot conceive of a
definition of the phrase "imposing value preferences" that does not
encompass the Court's action.
JUSTICE STEVENS also suggests that it is the legislative
majority that has engaged in "the unrestrained imposition of its
own extraconstitutional value preferences" when a state legislature
restricts the availability of abortion.
Ibid. But a
legislature, unlike a court, has the inherent power to do so unless
its choices are constitutionally
forbidden, which, in my
view, is not the case here.
[
Footnote 3/4]
Contrary to JUSTICE STEVENS' suggestion,
ibid., this is
no more a "theological" position than is the Court's own judgment
that viability is the point at which the state interest becomes
compelling. (Interestingly, JUSTICE STEVENS omits any real effort
to defend this judgment.). The point is that the specific interest
the Court has recognized as compelling after the point of viability
-- that is, the interest in protecting "potential human life" -- is
present as well before viability, and the point of viability seems
to bear no discernible relationship to the strength of that
interest. Thus, there is no basis for concluding that the essential
character of the state interest becomes transformed at the point of
viability.
Further, it is self-evident that neither the legislative
decision to assert a state interest in fetal life before viability
nor the judicial decision to recognize that interest as compelling
constitutes an impermissible "religious" decision merely because it
coincides with the belief of one or more religions. Certainly the
fact that the prohibition of murder coincides with one of the Ten
Commandments does not render a State's interest in its murder
statutes less than compelling, nor are legislative and judicial
decisions concerning the use of the death penalty tainted by their
correspondence to varying religious views on that subject. The
simple, and perhaps unfortunate, fact of the matter is that, in
determining whether to assert an interest in fetal life, a State
cannot avoid taking a position that will correspond to some
religious beliefs and contradict others. The same is true to some
extent with respect to the choice this Court faces in
characterizing an asserted state interest in fetal life, for
denying that such an interest is a "compelling" one necessarily
entails a negative resolution of the "religious" issue of the
humanity of the fetus, whereas accepting the State's interest as
compelling reflects at least tolerance for a state decision that is
congruent with the equally "religious" position that human life
begins at conception. Faced with such a decision, the most
appropriate course of action for the Court is to defer to a
legislative resolution of the issue: in other words, if a state
legislature asserts an interest in protecting fetal life, I can see
no satisfactory basis for
denying that it is
compelling.
[
Footnote 3/5]
JUSTICE STEVENS,
see ante at
476 U. S.
776-777, n. 4, finds a contradiction between my
recognition that constitutional analysis requires more than mere
textual analysis or a search for the specific intent of the
Framers,
supra at
476 U. S. 789, and my assertion that it is ultimately
the will of the people that is the source of whatever values are
incorporated in the Constitution. The fallacy of JUSTICE STEVENS'
argument is glaring. The rejection of what has been characterized
as "clause-bound" interpretivism, J. Ely, Democracy and Distrust 12
(1980), does not necessarily carry with it a rejection of the
notion that constitutional adjudication is a search for values and
principles that are implicit (and explicit) in the structure of
rights and institutions that the people have themselves created.
The implications of those values for the resolution of particular
issues will, in many, if not most, cases, not have been explicitly
considered when the values themselves were chosen -- indeed, there
will be some cases in which those who framed the provisions
incorporating certain principles into the Constitution will be
found to have been incorrect in their assessment of the
consequences of their decision.
See, e.g., Brown v. Board of
Education, 347 U. S. 483
(1954). Nonetheless, the hallmark of a correct decision of
constitutional law is that it rests on principles selected by the
people through their Constitution, and not merely on the personal
philosophies, be they libertarian or authoritarian, of the judges
of the majority. While constitutional adjudication involves
judgments of value, it remains the case that some values are indeed
"extraconstitutional," in that they have no roots in the
Constitution that the people have chosen. The Court's decision in
Lochner v. New York, 198 U. S. 45
(1905), was wrong because it rested on the Court's belief that the
liberty to engage in a trade or occupation without governmental
regulation was somehow fundamental -- an assessment of value that
was unsupported by the Constitution. I believe that
Roe v.
Wade -- and today's decision as well -- rests on similarly
extraconstitutional assessments of the value of the liberty to
choose an abortion.
[
Footnote 3/6]
Interestingly, the Court's statement seems to have assumed that
the Court would have had the same authority over "ethical
questions" as "constitutional issues," had it chosen to reach them
-- an illuminating revelation of the state of the Court's
jurisprudence in this area.
[
Footnote 3/7]
Surely it cannot be argued that any abortion that is safer than
delivery is medically necessary, since, under such a definition, an
abortion would be medically necessary in all pregnancies.
[
Footnote 3/8]
Even if I were to accept the majority's conclusion that the
medical necessity defense of § 3210(a) is not specifically
applicable to charges brought under § 3210(c), I would not strike
down the statute. Under Pennsylvania criminal law, justification is
a defense,
see 18 Pa.Cons.Stat. § 502 (1982), and, under
the general rule of justification, conduct is deemed justified if
"the actor believes [it] to be necessary to avoid a harm or evil to
. . . another," and "the harm or evil sought to be avoided by such
conduct is greater than that sought to be prevented by the law
defining the offense charged." § 503(a)(1). I have little doubt
that a Pennsylvania court applying this statute would find
noncompliance with the second physician rule justified where
necessary to save the life of the pregnant woman.
JUSTICE O'CONNOR, with whom JUSTICE REHNQUIST joins,
dissenting.
This Court's abortion decisions have already worked a major
distortion in the Court's constitutional jurisprudence.
See
Akron v. Akron Center for Reproductive Health, Inc.,
462 U. S. 416,
462 U. S. 452
(1983) (O'CONNOR, J., dissenting). Today's decision goes further,
and makes it painfully clear that no legal rule or doctrine is safe
from
ad hoc nullification by this Court when an occasion
for its application arises in a case involving state regulation of
abortion. The permissible scope of abortion regulation is not the
only constitutional issue on which this Court is divided, but --
except when it comes to abortion -- the Court has generally refused
to let such disagreements, however longstanding or deeply felt,
prevent it from evenhandedly applying uncontroversial legal
doctrines to cases that come before it.
See Heckler v.
Chaney, 470 U. S. 821,
470 U. S. 838
(1985);
id. at
470 U. S.
839-840, n. 2 (BRENNAN, J., concurring) (differences
over the validity of the death penalty under the Eighth Amendment
should not influence the Court's consideration of a question of
statutory administrative law). That the Court's unworkable scheme
for constitutionalizing the regulation of abortion has had this
institutionally debilitating effect should not be surprising,
however, since the Court is not suited to the expansive role it
Page 476 U. S. 815
has claimed for itself in the series of cases that began with
Roe v. Wade, 410 U. S. 113
(1973).
The Court today holds that "[t]he Court of Appeals correctly
invalidated the specified provisions of Pennsylvania's 1982
Abortion Control Act."
Ante at
476 U. S. 772.
In so doing, the Court prematurely decides serious constitutional
questions on an inadequate record, in contravention of settled
principles of constitutional adjudication and procedural fairness.
The constitutionality of the challenged provisions was not properly
before the Court of Appeals, and is not properly before this Court.
There has been no trial on the merits, and appellants have had no
opportunity to develop facts that might have a bearing on the
constitutionality of the statute. The only question properly before
the Court is whether or not a preliminary injunction should have
been issued to restrain enforcement of the challenged provisions
pending trial on the merits. This Court's decisions in
Akron v.
Akron Center for Reproductive Health, supra, Planned Parenthood
Assn. of Kansas City, Missouri, Inc. v. Ashcroft, 462 U.
S. 476 (1983), and
Simopoulos v. Virginia,
462 U. S. 506
(1983), do not establish a likelihood that appellees would succeed
on the merits of their constitutional claims sufficient to warrant
overturning the District Court's denial of a preliminary
injunction. Under the approach to abortion regulation outlined in
my dissenting opinion in
Akron, to which I adhere, it is
even clearer that no preliminary injunction should have issued. I
therefore dissent.
I
The only issue before the District Court in this case was
whether to grant appellees' motion for a preliminary injunction
against enforcement of Pennsylvania's Abortion Control Act. The
limited record before the District Court consisted of affidavits
submitted by appellees, the parties' memoranda of law, the Act
itself, including the findings of the Pennsylvania Legislature, and
a stipulation of uncontested facts. As
Page 476 U. S. 816
the District Judge noted, this stipulation "was entered into
solely for the purpose of the motion for preliminary injunction."
552 F.
Supp. 791, 794, n. 1 (ED Pa.1982). Indeed, the parties
expressly provided that the stipulation should be "without
prejudice to any party's right to controvert any facts or to prove
any additional facts at any later proceeding in this action." App.
9a-10a. In light of the stipulation of uncontested facts, no
testimony or evidence was submitted at the hearing on the motion
for a preliminary injunction.
In these circumstances, the District Judge's consideration of
the motion before him was governed by the black letter law
recapitulated in
University of Texas v. Camenisch,
451 U. S. 390,
451 U. S. 395
(1981):
"The purpose of a preliminary injunction is merely to preserve
the relative positions of the parties until a trial on the merits
can be held. Given this limited purpose, and given the haste that
is often necessary if those positions are to be preserved, a
preliminary injunction is customarily granted on the basis of
procedures that are less formal, and evidence that is less
complete, than in a trial on the merits. A party thus is not
required to prove his case in full at a preliminary injunction
hearing, and the findings of fact and conclusions of law made by a
court granting a preliminary injunction are not binding at trial on
the merits. In light of these considerations, it is generally
inappropriate for a federal court, at the preliminary injunction
stage, to give a final judgment on the merits."
"Should an expedited decision on the merits be appropriate, Rule
65(a)(2) of the Federal Rules of Civil Procedure provides a means
of securing one. That Rule permits a court to 'order the trial of
the action on the merits to be advanced and consolidated with the
hearing of the application.' Before such an order may issue,
however, the courts have commonly required that"
"the parties should normally receive clear and unambiguous
notice of
Page 476 U. S. 817
the court's intent to consolidate the trial and the hearing]
either before the hearing commences or at a time which will still
afford the parties a full opportunity to present their respective
cases."
(Citations omitted.)
The District Judge scrupulously adhered to these settled
principles. He granted the preliminary injunction as to one
provision of the Act, and denied preliminary relief as to all the
other challenged provisions. Having seen no occasion to issue a
Rule 65 order, he properly refrained from rendering final judgment
on the merits by declaratory judgment or otherwise. That the
District Judge understood the preliminary nature of the
proceedings, and ruled accordingly, is incontrovertible:
"I have applied the traditional criteria applicable to a motion
for preliminary injunction: likelihood of success on the merits,
irreparable harm if the relief is not granted, possibility of harm
to the nonmoving party, and, where relevant, harm to the public.
Given the importance of the right involved in this litigation, I
have assumed that, if the plaintiffs were able to show likelihood
of success on the merits, then the irreparable harm requirement
would be met. I conclude that, in only one instance, the 24-hour
waiting period, did the plaintiffs carry their burden of
demonstrating likelihood of success on the merits."
"
* * * *"
"My adjudication is limited to the plaintiffs' request for a
preliminary injunction. It is circumscribed by the record
produced by the parties and the arguments advanced in the briefs on
this motion. After applying the criteria for a preliminary
injunction, I conclude that the only portion of the Act which the
plaintiffs have demonstrated should be preliminarily enjoined is
the 24-hour waiting period. In all other respects, the plaintiffs
have failed to show a right to a preliminary injunction pending
Page 476 U. S. 818
the outcome of the trial on the merits."
552 F.
Supp. at 811 (emphasis in original).
The District Judge correctly discerned that
"[t]he traditional standard for granting a preliminary
injunction requires a plaintiff to show that, in the absence of its
issuance, he will suffer irreparable injury, and also that he is
likely to prevail on the merits."
Doran v. Salem Inn, Inc., 422 U.
S. 922,
422 U. S. 931
(1975). Unsurprisingly, the likelihood of success on the merits
emerged, in the District Judge's view, as the most important factor
in determining whether an injunction should issue in this case. In
sum, when the District Judge denied appellees' motion for a
preliminary injunction, he faithfully applied uncontroversial
criteria for ruling on such motions and rendered a decision that
"was not in any sense intended as a final decision as to the
constitutionality of the challenged statute."
Brown v.
Chote, 411 U. S. 452, 456
(1973).
When the appeal was taken to the Court of Appeals for the Third
Circuit, that court's review should have been limited to
determining whether the District Court had abused its discretion in
denying
preliminary relief.
Doran, supra, at
422 U. S.
931-932;
Brown, supra, at
411 U. S. 457.
If the Court of Appeals concluded that the District Court had
committed legal errors that infected its assessment of the
likelihood that appellees would succeed on the merits, the Court of
Appeals should then have addressed the remaining factors that make
up the preliminary injunction inquiry. If it concluded that denial
of the preliminary injunction was an abuse of discretion, it should
have entered judgment providing for entry of a preliminary
injunction. What it should
not have done, and what it did
do, was to issue a final, binding declaration on the merits of
appellees' constitutional claims.
The Court concedes that a court of appeals should ordinarily
review the denial of a preliminary injunction under an abuse of
discretion standard, and it concedes that a court of appeals should
ordinarily confine itself to assessing the "probability that the
plaintiffs would succeed on the merits."
Page 476 U. S. 819
Ante at
476 U. S. 755.
But the Court purports to find an exception to this rule in the
decisions in
Youngstown Sheet & Tube Co. v. Sawyer,
343 U. S. 579
(1952), and
Smith v. Vulcan Iron Works, 165 U.
S. 518 (1897). It asserts that these cases indicate
that,
"if a district court's ruling rests solely on a premise as to
the applicable rule of law, and the facts are established or of no
controlling relevance, that ruling may be reviewed even though the
appeal is from the entry of a preliminary injunction."
Ante at
476 U. S. 757.
The Court then announces that the requirement that appellate review
proceed under the deferential abuse of discretion standard is "a
rule of orderly judicial administration, not a limit on judicial
power."
Ibid. Postulating that the Court of Appeals had a
"full record before it on the issues now before us,"
ibid., the Court concludes that this "full record," and
the fact that this Court's decisions in
Akron, Ashcroft,
and
Simopoulos were handed down during the pendency of the
appeal, justified the Court of Appeals "in proceeding to plenary
review of those issues."
Ante at
476 U. S.
757.
This analysis mischaracterizes the proceedings in the District
Court and is unsupported by precedent or logic. No one doubts that
the legal premises on which the District Judge proceeded were
reviewable. But the fact is that the District Judge did not make
the final, definitive "ruling" on the merits the Court imputes to
him. The only "ruling" the Court of Appeals had before it with
respect to the merits was a determination of "likelihood of
success" based on facts which were stipulated
only for
purposes of the preliminary injunction motion, and on arguments
framed with a view toward only those facts. Nor was there a "full
record" upon which the Court of Appeals could decide the merits.
The Court falls into precisely the error pointed out in
Camenisch, 451 U.S. at
451 U. S. 394,
where this Court unanimously rejected the proposition that
determinations on the propriety of preliminary relief are
"tantamount to decisions on the underlying merits," because that
view
"improperly equates 'likelihood of
Page 476 U. S. 820
success' with 'success,' and, what is more important, . . .
ignores the significant procedural differences between preliminary
and permanent injunctions."
The Court of Appeals was convinced that the District Judge, in
reliance on the decisions of the Courts of Appeals that were later
reviewed in
Akron and
Ashcroft, had taken a view
of the applicable law which this Court's decisions in those cases
demonstrated to be erroneous. Citing
Apple Computer, Inc. v.
Franklin Computer Corp., 714 F.2d 1240, 1242 (CA3 1983),
cert. dism'd under this Court's Rule 53, 464 U.S. 1033
(1984), the Court of Appeals stated that
"[t]he customary discretion accorded to a district court's
ruling on a preliminary injunction yields to our plenary scope of
review as to the applicable law."
737 F.2d 283, 290 (1984).
Apple Computer, in turn,
relied on Judge Friendly's opinion for the Second Circuit in
Donovan v. Bierwirth, 680 F.2d 263, 269,
cert.
denied, 459 U.S. 1069 (1982):
"Despite oft-repeated statements that the issuance of a
preliminary injunction rests in the discretion of the trial judge,
whose decisions will be reversed only for 'abuse,' a court of
appeals must reverse if the district court has proceeded on the
basis of an erroneous view of the applicable law, or of the
standards governing the granting or denial of interlocutory
relief."
(Citations omitted.)
Donovan's reasoning, however, goes only to the
standard of appellate review, not to the
extent
of the issues to be reviewed. Whether or not
Donovan'sapproach is sound, it is clear that a district
court does not have discretion to rule on the basis of a
misapprehension of controlling law. But even assuming,
arguendo, that, where a court of appeals detects such an
error, it may then engage in
de novo review of the
determination whether a preliminary injunction should issue,
see 680 F.2d at 270, such discretion does not ordinarily
extend to deciding the merits of the controversy with finality.
Judge Friendly did no such thing in
Donovan, id.
Page 476 U. S. 821
at 276, nor did the Third Circuit in
Apple Computer,
see 714 F.2d at 1242.
What is at issue here is a matter of legal principle. As JUSTICE
BLACKMUN has observed on a previous occasion:
"The distinction between the preliminary and final injunction
stages of a proceeding is more than mere formalism. The time
pressures involved in a request for a preliminary injunction
require courts to make determinations without the aid of full
briefing or factual development, and make all such determinations
necessarily provisional."
Firefighters v. Stotts, 467 U.
S. 561,
467 U. S.
603-604, n. 7 (1984) (dissenting opinion). The holding
of the Court today thus comes at the expense of the basic principle
underlying the framework set out in
Camenisch for ruling
on a motion for a preliminary injunction: that fairness to the
parties and reliable adjudication of disputes require final,
binding rulings on the merits of a controversy to be made only
after each side has had an opportunity to establish its version of
the disputed facts, or to establish that the facts are not in
dispute.
Equally neglected by the Court is a second principle, closely
related to the first:
"Ordinarily, an appellate court does not give consideration to
issues not raised below. For our procedural scheme contemplates
that parties shall come to issue in the trial forum vested with
authority to determine questions of fact. This is essential in
order that parties may have the opportunity to offer all the
evidence they believe relevant to the issues which the trial
tribunal is alone competent to decide; it is equally essential in
order that litigants may not be surprised on appeal by final
decision there of issues upon which they have had no opportunity to
introduce evidence."
Hormel v. Helvering, 312 U. S. 552,
312 U. S. 556
(1941).
See also Singleton v. Wulff, 428 U.
S. 106,
428 U. S.
120-121 (1976);
cf. Fountain v. Filson,
336 U. S. 681,
336 U. S. 683
(1949) (per curiam) (reversing a summary judgment order "made on
appeal on a
Page 476 U. S. 822
new issue as to which the opposite party had no opportunity to
present a defense before the trial court"). The cases on which the
Court relies simply do not support the short shrift the Court gives
these basic principles.
In
Youngstown Sheet & Tube Co., President Truman,
invoking an immediate threat to the national defense precipitated
by a threatened nationwide strike in the steel industry, ordered
the Secretary of Commerce to seize the steel mills and keep them
running. 343 U.S. at
343 U. S. 583.
The steel companies sought a declaratory judgment, a preliminary
injunction, and a permanent injunction against the seizure, on the
grounds that the President had no authority to order it.
Ibid. Although the District Court had before it only
"motions for temporary injunctions" when it ruled,
103 F.
Supp. 569, 572 (DC 1952), "in the light of the facts presented,
the District Court saw no reason for delaying decision of the
constitutional validity of the orders."
Youngstown Sheet &
Tube Co., supra, at
343 U. S. 585.
Indeed, the District Court had
"com[e] to a fixed conclusion . . . that defendant's acts are
illegal. . . . Nothing that could be submitted at such trial on the
facts would alter the legal conclusion I have reached."
103 F. Supp. at 576.
Thus, the District Court's preliminary injunction in
Youngstown Sheet & Tube Co. rested on what amounted to
a declaratory judgment that the orders were constitutionally
invalid. That in itself was a pronounced departure from normal
practice, although one that this Court found proper in the highly
unusual circumstances presented in
Youngstown Sheet & Tube
Co., where time was manifestly of the essence,* and there was
no contention that the Government had been deprived of an
opportunity to present facts that could have
Page 476 U. S. 823
altered the resolution of the constitutional question. To the
contrary, when
"[p]laintiffs moved for a preliminary injunction before answer
or hearing, [d]efendant opposed the motion, filing uncontroverted
affidavits of Government officials describing the facts underlying
the President's order."
343 U.S. at
343 U. S. 678
(Vinson, C.J., dissenting).
Neither of the foregoing justifications for the District Court's
unusual decision to reach the merits in
Youngstown Sheet &
Tube is present here. No emergency remotely comparable to the
one in
Youngstown Sheet & Tube confronted the Court of
Appeals, which granted appellees' motion to enjoin enforcement of
the entire Act pending appeal, and withheld judgment until after
this Court had ruled in
Akron and its companion cases. 737
F.2d at 290. Appellants conceded in the Court of Appeals that
several provisions of the Abortion Act were unconstitutional in the
wake of those decisions, but appellants did not concede that the
provisions on which the Court of Appeals dispositively ruled were
unconstitutional. Nor is there any suggestion that appellants
conceded in the Court of Appeals that there were no factual issues
that could have a bearing on the constitutionality of these
provisions. Consequently, even if a preliminary injunction should
have issued, the proper course would have been to remand for final
determination of the merits.
Indeed, since
Youngstown Sheet & Tube Co. was
decided, this Court has expressly reaffirmed that
"a state statute should not be declared unconstitutional by a
district court if a preliminary injunction is granted a plaintiff
to protect his interests during the ensuing litigation."
Withrow v. Larkin, 421 U. S. 35,
421 U. S. 43
(1975).
See Mayo v. Lakeland Highlands Canning Co.,
309 U. S. 310
(1940). If it is improper for a district court to enter such a
declaratory judgment when it grants a preliminary injunction, then
a fortiori it is improper for a court of appeals to do so
when the district court has only appraised the likelihood of
success on the merits. What happened here is even more extreme: the
Court of Appeals, reviewing
Page 476 U. S. 824
the
denial of a preliminary injunction, held in the
first instance that nothing that could be submitted at a trial on
the merits would alter
its conclusion that "most of the
provisions attacked by appellants are unconstitutional as a matter
of law." 737 F.2d at 287. Nothing in
Youngstown Sheet &
Tube Co. remotely suggests that it was proper for the Court of
Appeals to take this extraordinary step.
"
Camenisch makes clear that a determination of a
party's entitlement to a preliminary injunction is a separate issue
from the determination of the merits of the party's underlying
legal claim, and that a reviewing court should not confuse the
two."
Stotts, 467 U.S. at
467 U. S. 603
(BLACKMUN, J., dissenting).
The Court strays even further afield when it invokes
Smith
v. Vulcan Iron Works in defense of the Court of Appeals'
decision to reach and resolve the merits despite the fact that the
District Court had not done so and without giving the parties "the
benefit . . . of a full opportunity to present their cases."
Camenisch, 451 U.S. at
451 U. S. 396.
The trial court in
Smith,
"upon a bill in equity for the infringement of a patent for an
invention . . . entered an interlocutory decree,
adjudging that
the patent was valid and had been infringed, granting an
injunction, and referring the case to a master to take an account
of profits and damages."
165 U.S. at
165 U. S. 518
(emphasis added). The defendant challenged the trial court's
alleged "error in holding that the patent was valid, and that it
had been infringed."
Ibid. The Circuit Court of Appeals
reversed the decree, rejecting the plaintiff's contention that it
could rule only on "whether an injunction should be awarded."
Ibid. This Court held that, under the plain language of
the statute conferring jurisdiction on the Circuit Court of
Appeals, an appeal was authorized "from the whole of such
interlocutory order or decree, and not from that part of it only
which grants or continues an injunction," and consequently the
statute conferred "authority to consider and decide the case upon
its merits."
Id. at
165 U. S. 525.
The trial court, of course, had already done precisely that,
deciding the issue
Page 476 U. S. 825
of liability after the parties had joined issue on the merits,
while referring the matter of damages to a master. Reliance on
Smith in this case is therefore misplaced, for, to repeat,
the District Court did not decide -- and could not properly have
decided -- the merits of appellees' constitutional claims when it
refused to grant a preliminary injunction.
The Court also seeks comfort in an analogy to the rule that a
federal court need not abstain, pending state court review, from
reviewing a constitutional challenge to the validity of a state
statute that is not fairly subject to an interpretation that will
avoid the constitutional question.
Zwickler v. Koota,
389 U. S. 241,
389 U. S. 251,
and n. 14 (1967). When a federal district court declines to
abstain, however, it does not, in so doing, decide the merits of
the constitutional question even if the parties have not had a full
opportunity to air them. The court simply proceeds to decide the
case in accordance with the normal procedural requirements that
safeguard the parties' rights to be heard. A refusal to abstain
therefore infringes neither the principle that final judgment
should follow a full opportunity to be heard on the factual and
legal merits of the case nor the principle that "parties shall come
to issue in the trial forum vested with authority to determine
questions of fact."
Hormel, 312 U.S. at
312 U. S. 556.
The same cannot be said of what the Court of Appeals did here.
Whatever the exceptions which would justify a district court in
finally resolving an issue on the merits at the preliminary
injunction stage, no such exception was applicable here. Nor is
this a case in which the court of appeals was justified in
resolving an issue not passed on in the district court because
proper resolution was beyond any doubt or grave injustice might
result from failure to do so.
See Singleton v. Wulff, 428
U.S. at
428 U. S. 121.
The Court of Appeals not only decided to stand in the shoes of the
District Court by ruling on an issue not passed upon below -- it
ruled on an issue on which, absent extraordinary circumstances, the
District Court could not have ruled without "
clear and
unambiguous
Page 476 U. S.
826
notice'" that would "`afford the parties a full opportunity
to present their respective cases.'" Camenisch, supra, at
451 U. S. 395.
The Court attempts to veil the impropriety of its decision to
affirm on the merits despite the procedural posture of this case by
implying that the challenged provisions are patently
unconstitutional. But this claim too is unsupported in this Court's
decisions concerning state regulation of abortion.
The discretionary exception the Court fashions today will also
prove vexatious to administer. Parties now face the risk that a
final ruling on the merits will be entered against them by a court
of appeals when an appeal is taken from the grant or denial of a
motion for a preliminary injunction, although the district court
made only an initial assessment of the likelihood that the moving
party would succeed on the merits. It is predictable that parties
will respond by attempting to turn preliminary injunction
proceedings into contests over summary judgment or full-scale
trials on the merits. That tendency will make the preliminary
injunction less useful in serving its intended function of
preserving the
status quo pending final judgment on the
merits, while making litigation more expensive, less reliable, and
less fair. If this case did not involve state regulation of
abortion, it may be doubted that the Court would entertain, let
alone adopt, such a departure from its precedents.
II
In this Court, appellants argue that the judgment of the Court
of Appeals should be vacated and the District Court's denial of a
preliminary injunction sustained. Appellants have stated that they
"intend to present to the District Court a complete factual record
which . . . could affect the disposition of this case," and have
indicated some of the specific factual propositions they would seek
to establish. Brief for Appellants 44-48. At oral argument, counsel
for appellants reiterated that, with the exception of the second
physician requirement, "there are additional justifications by way
of
Page 476 U. S. 827
facts that we can offer" as to each of the challenged
provisions. Tr. of Oral Arg. 13. These assertions alone would
justify vacating the judgment of the Court of Appeals insofar as
that court did more than direct the entry of a preliminary
injunction. In
Singleton v. Wulff, supra, at
428 U. S. 120,
for example, this Court reversed the Court of Appeals' decision to
reach the merits of that case, even though this Court had "no idea
what evidence, if any, petitioner would, or could, offer in defense
of this statute," because it was clear that "petitioner has had no
opportunity to proffer such evidence." I would apply that reasoning
here even if I were not persuaded that, as to several of the
challenged provisions, additional factual development -- for
example, facts concerning the costs associated with the reporting
and informed consent provisions, and the extent of the problems
Pennsylvania was seeking to correct -- could affect the decision on
the merits. Appellants should not have to prove that they are
entitled to an opportunity to be heard.
Since it rendered "what amounts to a final declaratory judgment
on the constitutionality of the statute,"
ante at
476 U. S. 806
(WHITE, J., dissenting), the Court of Appeals necessarily believed
that, in light of
Akron and its companion cases, appellees
had established a sufficient likelihood of success on the merits to
warrant issuance of a preliminary injunction. Pennsylvania contends
that this ruling is erroneous even under the supervening decisions
of this Court. In the alternative, Pennsylvania suggests that the
facial constitutionality of the challenged provisions of its
Abortion Act may be sustained on this record.
I agree with much of what JUSTICE WHITE has written in
476 U. S. and
the arguments he has framed might well suffice to show that the
provisions at issue are facially constitutional. Nonetheless, I
believe the proper course is to decide this case as the Court of
Appeals should have decided it, lest appellees suffer the very
prejudice the Court sees fit to inflict on appellants. For me,
then, the
Page 476 U. S. 828
question is not one of "success," but of the "likelihood of
success." In addition, because Pennsylvania has not asked the Court
to reconsider or overrule
Roe v. Wade, 410 U.
S. 113 (1973), I do not address that question.
I do, however, remain of the views expressed in my dissent in
Akron, 462 U.S. at
462 U. S.
459-466. The State has compelling interests in ensuring
maternal health and in protecting potential human life, and these
interests exist "throughout pregnancy."
Id. at
462 U. S. 461
(O'CONNOR, J., dissenting). Under this Court's fundamental-rights
jurisprudence, judicial scrutiny of state regulation of abortion
should be limited to whether the state law bears a rational
relationship to legitimate purposes such as the advancement of
these compelling interests, with heightened scrutiny reserved for
instances in which the State has imposed an "undue burden" on the
abortion decision.
Id. at
462 U. S.
461-463 (O'CONNOR, J., dissenting). An undue burden will
generally be found "in situations involving absolute obstacles or
severe limitations on the abortion decision," not wherever a state
regulation "may
inhibit' abortions to some degree."
Id. at 462 U. S. 464
(O'CONNOR, J., dissenting). And if a state law does interfere with
the abortion decision to an extent that is unduly burdensome, so
that it becomes "necessary to apply an exacting standard of
review," id. at 462 U. S. 467
(O'CONNOR, J., dissenting), the possibility remains that the
statute will withstand the stricter scrutiny. See id. at
462 U. S.
473-474 (O'CONNOR, J., dissenting); Ashcroft,
462 U.S. at 462 U. S. 505
(O'CONNOR, J., concurring in judgment in part and dissenting in
part).
These principles for evaluating state regulation of abortion
were not newly minted in my dissenting opinion in
Akron.
Apart from
Roe's outmoded trimester framework, the "unduly
burdensome" standard had been articulated and applied with fair
consistency by this Court in cases such as
Harris v.
McRae, 448 U. S. 297,
448 U. S. 314
(1980),
Maher v. Roe, 432 U. S. 464,
432 U. S. 473
(1977),
Beal v. Doe, 432 U. S. 438,
432 U. S. 446
(1977), and
Bellotti v. Baird, 428 U.
S. 132,
428 U. S. 147
(1976). In
Akron and
Page 476 U. S. 829
Ashcroft, the Court, in my view, distorted and
misapplied this standard,
see Akron, 462 U.S. at
462 U. S.
452-453 (O'CONNOR, J., dissenting), but made no clean
break with precedent, and indeed "follow[ed] this approach" in
assessing some of the regulations before it in those cases.
Id. at
462 U. S. 463
(O'CONNOR, J., dissenting).
The Court today goes well beyond mere distortion of the "unduly
burdensome" standard. By holding that each of the challenged
provisions is facially unconstitutional as a matter of law, and
that no conceivable facts appellants might offer could alter this
result, the Court appears to adopt as its new test a
per
se rule under which any regulation touching on abortion must
be invalidated if it poses "an unacceptable danger of deterring the
exercise of that right."
Ante at
476 U. S. 767.
Under this prophylactic test, it seems that the mere possibility
that some women will be less likely to choose to have an abortion
by virtue of the presence of a particular state regulation suffices
to invalidate it. Simultaneously, the Court strains to discover
"the anti-abortion character of the statute,"
ante at
476 U. S. 764,
and, as JUSTICE WHITE points out, invents an unprecedented canon of
construction under which "in cases involving abortion, a
permissible reading of a statute is to be avoided at all costs."
Ante at
476 U. S. 812
(dissenting). I shall not belabor the dangerous extravagance of
this dual approach, because I hope it represents merely a temporary
aberration, rather than a portent of lasting change in settled
principles of constitutional law. Suffice it to say that I dispute
not only the wisdom, but also the legitimacy, of the Court's
attempt to discredit and preempt state abortion regulation
regardless of the interests it serves and the impact it has.
Under the "unduly burdensome" test, the District Judge's
conclusion that appellees were not entitled to a preliminary
injunction was clearly correct. Indeed, the District Judge applied
essentially that test, after suggesting that no "meaningful
distinction can be made between the plaintiffs
legally
Page 476 U. S.
830
significant burden' and defendants' `undue burden.'" 552 F.
Supp. at 796. I begin, as does the Court, with the Act's informed
consent provisions.
The Court condemns some specific features of the informed
consent provisions of § 3205, and issues a blanket condemnation of
the provisions in their entirety as irrelevant or distressing in
some cases and as intruding on the relationship between the woman
and her physician. JUSTICE WHITE convincingly argues that none of
the Court's general criticisms is appropriate, since the
information is clearly relevant in many cases and is calculated to
inform rather than intimidate, and since all informed consent
requirements must, from the very rationale for their existence,
intrude to some extent on the physician's discretion to be the sole
judge of what his or her patient needs to know. The "parade of
horribles" the Court invalidated in
Akron, supra, at
462 U. S. 445,
is missing here. For example, § 3205(a)(iii) requires that the
woman be informed, "when medically accurate," of the risks
associated with a particular abortion procedure, and § 3205(a)(v)
requires the physician to inform the woman of "[t]he medical risks
associated with carrying her child to term." This is the kind of
balanced information I would have thought all could agree is
relevant to a woman's informed consent.
I do not dismiss the possibility that requiring the physician or
counselor to read aloud the State's printed materials if the woman
wishes access to them, but cannot read, raises First Amendment
concerns. Even the requirement that women who can read be informed
of the availability of those materials, and furnished with them on
request, may create some possibility that the physician or
counselor is being required to "communicate [the State's]
ideology."
Akron, supra, at
462 U. S. 472,
n. 16 (O'CONNOR, J., dissenting);
see Wooley v. Maynard,
430 U. S. 705
(1977). Since the Court of Appeals did not reach appellees' First
Amendment claim, and since appellees do not raise it here, I need
not decide whether this potential problem would be sufficiently
serious to warrant issuance of a
Page 476 U. S. 831
preliminary injunction as to those portions of § 3205 that
incorporate the printed information provisions of § 3208. I note,
however, that this is one of many points on which fuller factual
development, including the actual contents of the printed
materials, could affect resolution of the merits.
The Court singles out for specific criticism the required
description, in the printed materials, of fetal characteristics at
2-week intervals. These materials, of course, will be shown to the
woman only if she chooses to inspect them. If the materials were
sufficiently inflammatory and inaccurate, the fact that the woman
must ask to see them would not necessarily preclude finding an
undue burden, but there is no indication that this is true of the
description of fetal characteristics the statute contemplates.
Accordingly, I think it unlikely that appellees could succeed in
making the threshold showing of an undue burden on this point, and
the information is certainly rationally related to the State's
interests in ensuring informed consent and in protecting potential
human life. Similarly, I see little chance that appellees can
establish that the abortion decision is unduly burdened by § 3205's
requirements that the woman be informed of the availability of
medical assistance benefits and of the father's legal
responsibility. Here again, the information is indisputably
relevant in many cases, and would not appear to place a severe
limitation on the abortion decision.
The Court's rationale for striking down the reporting
requirements of § 3214, as JUSTICE WHITE shows, rests on an
unsupported finding of fact by this Court to the effect that
"[i]dentification is the obvious purpose of these extreme reporting
requirements."
Ante at
476 U. S. 767
(opinion of the Court). The Court's "finding," which is contrary to
the preliminary finding of the District Judge that the statute's
confidentiality requirements protected against any invasion of
privacy that could burden the abortion decision,
see 552
F. Supp. at 804, is simply another consequence of the Court's
determination to prevent the parties from developing the facts. I
do not
Page 476 U. S. 832
know whether JUSTICE WHITE is correct in stating that "the
provisions pose little or no threat to the woman's privacy,"
ante at
476 U. S. 807
(dissenting), and I would leave that determination for the District
Court, which can hear evidence on this point before making its
findings. I do not, however, see a substantial threat of
identification on the face of the statute, which does not require
disclosure of the woman's identity to anyone, and which provides
that reports shall be disclosed to the public only in "a form which
will not lead to the disclosure of the identity of any person
filing a report." § 3214(e)(2). I therefore conclude that the
District Judge correctly ruled that appellees are unlikely to
succeed in establishing an undue burden on the abortion decision
stemming from the possibility of identification.
I fully agree with JUSTICE WHITE that the Court has misconstrued
the intended meaning of § 3210(b)'s requirement that physicians
employ the abortion method that is most likely to save the fetus
unless, in the physician's good faith judgment, that method "would
present a significantly greater risk to the life or health of the
pregnant woman." Since § 3210(b) can fairly be read to require
"only that the risk be a real and identifiable one,"
ante
at
476 U. S. 807
(WHITE, J., dissenting), there is little possibility that a woman's
abortion decision will be unduly burdened by risks falling below
that threshold. Accordingly, § 3210(b) should not be preliminarily
enjoined, and I express no opinion as to the point at which a
"trade-off" between the health of the woman and the survival of the
fetus would rise to the level of an undue burden.
Since appellants and appellees agree that no further factfinding
is needed concerning appellees' challenge to § 3210(c)'s second
physician requirement, I am willing to assume that the merits of
that challenge are properly before us. I have nothing to add to
JUSTICE WHITE's demonstration that this provision is constitutional
under
Ashcroft because the Act effectively provides for an
exception making this requirement inapplicable in emergency
situations. I likewise agree
Page 476 U. S. 833
with JUSTICE WHITE that the preliminary injunction entered
against enforcement of the Act's parental notice and consent
provisions should be vacated, since, as in
Ashcroft, there
is no reason here to believe that the State will not provide for
the expedited procedures called for by its statute.
See
Ashcroft, 462 U.S. at
462 U. S. 491, n. 16 (opinion of POWELL, J.). I add only
that the Court's explanation for its refusal to follow
Ashcroft -- that the new rules "should be considered by
the District Court in the first instance,"
ante at
476 U. S. 758,
n. 9 -- does not square with its insistence on resolving the rest
of this case without giving the District Court an opportunity to do
so.
In my view, today's decision makes bad constitutional law and
bad procedural law. The "
undesired and uncomfortable
straitjacket'" in this case, ante at 476 U. S. 762,
is not the one the Court purports to discover in Pennsylvania's
statute; it is the one the Court has tailored for the 50 States. I
respectfully dissent.
* The extraordinary importance of prompt resolution of the steel
companies' claims is shown by the fact that this Court granted
certiorari before judgment in the Court of Appeals three days after
the District Court ruled, and set the case for argument nine days
later, "[d]eeming it best that the issues raised be promptly
decided by this Court." 343 U.S. at
343 U. S.
584.