The portions of the Court's opinion that I have
joined are more important than those with which I disagree. I shall therefore first
comment on significant areas of agreement, and then explain the limited character of my
disagreement. [505 U.S. 833, 912]
I
The Court is unquestionably correct in concluding that the doctrine
of stare decisis has controlling significance in a case of this kind,
notwithstanding an individual Justice's concerns about the merits. [Fn1] The central
holding of Roe v. Wade, 410 U.S. 113 (1973), has been a "part of our law" for
almost two decades. Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 101 (1976)
(STEVENS, J., concurring in part and dissenting in part). It was a natural sequel to the
protection of individual liberty established in Griswold v. Connecticut, 381 U.S. 479
(1965). See also Carey v. Population Services International, 431 U.S. 678, 687, 702 (1977)
(WHITE, J., concurring in part and concurring in result). The societal costs of overruling
Roe at this late date would be enormous. Roe is an integral part of a correct
understanding of both the concept of liberty and the basic equality of men and women.
=========Begin Footnotes=========
[Fn 1] It is sometimes useful to view the issue of stare decisis
from a historical perspective. In the last 19 years, 15 Justices have confronted the basic
issue presented in Roe v. Wade, 410 U.S. 113 (1973). Of those, 11 have voted as the
majority does today: Chief Justice Burger, Justices Douglas, Brennan, Stewart, Marshall,
and Powell, and Justices BLACKMUN, O'CONNOR, KENNEDY, SOUTER, and myself. Only four - all
of whom happen to be on the Court today - have reached the opposite conclusion.
=========End Footnotes=========
Stare decisis also provides a sufficient basis for my
agreement with the joint opinion's reaffirmation of Roe's postviability analysis.
Specifically, I accept the proposition that, [i]f the State is interested in protecting
fetal life after viability, it may go so far as to proscribe abortion during that period,
except when it is necessary to preserve the life or health of the mother. 410 U.S., at
163-164; see ante, at 879.
I also accept what is implicit in the Court's analysis, namely, a
reaffirmation of Roe's explanation of why the State's obligation to protect the life or
health of the mother [505 U.S. 833, 913] must take precedence over any duty to the unborn.
The Court in Roe carefully considered, and rejected, the State's argument "that the
fetus is a `person' within the language and meaning of the Fourteenth Amendment." 410
U.S., at 156. After analyzing the usage of "person" in the Constitution, the
Court concluded that that word "has application only postnatally." Id.,
at 157. Commenting on the contingent property interests of the unborn that are generally
represented by guardians ad litem, the Court noted: Perfection of the interests
involved, again, has generally been contingent upon live birth. In short, the unborn have
never been recognized in the law as persons in the whole sense. Id., at 162.
Accordingly, an abortion is not "the termination of life entitled to Fourteenth
Amendment protection." Id., at 159. From this holding, there was no dissent,
see id., at 173; indeed, no Member of the Court has ever questioned this
fundamental proposition. Thus, as a matter of federal constitutional law, a developing
organism that is not yet a "person" does not have what is sometimes described as
a "right to life." [Fn2] This has been and, by the Court's holding today, [505
U.S. 833, 914] remains, a fundamental premise of our constitutional law governing
reproductive autonomy.
=========Begin Footnotes=========
[Fn 2] Professor Dworkin has made this comment on the issue:
"The suggestion that states are free to declare a fetus a
person. . . . assumes that a state can curtail some persons' constitutional rights by
adding new persons to the constitutional population. The constitutional rights of one
citizen are, of course, very much affected by who or what else also has constitutional
rights, because the rights of others may compete or conflict with his. So any power to
increase the constitutional population by unilateral decision would be, in effect, a power
to decrease rights the national Constitution grants to others.
". . . If a state could declare trees to be persons with a
constitutional right to life, it could prohibit publishing newspapers or books in spite of
the First Amendment's guarantee of free speech, which could not be understood as a license
to kill. . . . Once we understand that the suggestion we are considering has that
implication, we must reject it. If a fetus is not part of the constitutional population
under the national constitutional arrangement, then states have no power to overrule that
national arrangement by themselves declaring that fetuses have rights competitive with
[505 U.S. 833, 914] the constitutional rights of pregnant women." Unenumerated
Rights: Whether and How Roe Should be Overruled, 59 U.Chi.L.Rev. 381, 400 401 (1992).
=========End Footnotes=========
II
My disagreement with the joint opinion begins with its understanding
of the trimester framework established in Roe. Contrary to the suggestion of the joint
opinion, ante, at 876, it is not a "contradiction" to recognize that the
State may have a legitimate interest in potential human life and, at the same time, to
conclude that that interest does not justify the regulation of abortion before viability
(although other interests, such as maternal health, may). The fact that the State's
interest is legitimate does not tell us when, if ever, that interest outweighs the
pregnant woman's interest in personal liberty. It is appropriate, therefore, to consider
more carefully the nature of the interests at stake.
First, it is clear that, in order to be legitimate, the State's
interest must be secular; consistent with the First Amendment, the State may not promote a
theological or sectarian interest. See Thornburgh v. American College of Obstetricians and
Gynecologists, 476 U.S. 747, 778 (1986) (STEVENS, J., concurring); see generally Webster
v. Reproductive Health Services, 492 U.S. 490, 563-572 (1989) (STEVENS, J., concurring in
part and dissenting in part). Moreover, as discussed above, the state interest in
potential human life is not an interest in loco parentis, for the fetus is not a
person.
Identifying the State's interests - which the States rarely
articulate with any precision - makes clear that the interest in protecting potential life
is not grounded in the Constitution. It is, instead, an indirect interest supported by
both humanitarian and pragmatic concerns. Many of our citizens believe that any abortion
reflects an unacceptable disrespect for potential human life, and that the performance of
more [505 U.S. 833, 915] than a million abortions each year is intolerable; many find
third-trimester abortions performed when the fetus is approaching personhood particularly
offensive. The State has a legitimate interest in minimizing such offense. The State may
also have a broader interest in expanding the population, [Fn3] believing society would
benefit from the services of additional productive citizens - or that the potential human
lives might include the occasional Mozart or Curie. These are the kinds of concerns that
comprise the State's interest in potential human life.
==========Begin Footnotes==========
[Fn 3] The state interest in protecting potential life may be
compared to the state interest in protecting those who seek to immigrate to this country.
A contemporary example is provided by the Haitians who have risked the perils of the sea
in a desperate attempt to become "persons" protected by our laws. Humanitarian
and practical concerns would support a state policy allowing those persons unrestricted
entry; countervailing interests in population control support a policy of limiting the
entry of these potential citizens. While the state interest in population control might be
sufficient to justify strict enforcement of the immigration laws, that interest would not
be sufficient to overcome a woman's liberty interest. Thus, a state interest in population
control could not justify a state-imposed limit on family size or, for that matter,
state-mandated abortions.
==========End Footnotes==========
In counterpoise is the woman's constitutional interest in liberty.
One aspect of this liberty is a right to bodily integrity, a right to control one's
person. See, e.g., Rochin v. California, 342 U.S. 165 (1952); Skinner v. Oklahoma ex rel
Williamson, 316 U.S. 535 (1942). This right is neutral on the question of abortion: the
Constitution would be equally offended by an absolute requirement that all women undergo
abortions as by an absolute prohibition on abortions. "Our whole constitutional
heritage rebels at the thought of giving government the power to control men's
minds." Stanley v. Georgia, 394 U.S. 557, 565 (1969). The same holds true for the
power to control women's bodies.
The woman's constitutional liberty interest also involves her
freedom to decide matters of the highest privacy and the most personal nature. Cf. Whalen
v. Roe, 429 U.S. 589, [505 U.S. 833, 916] 598-600 (1977). A woman considering abortion
faces a difficult choice having serious and personal consequences of major importance to
her own future - perhaps to the salvation of her own immortal soul. Thornburgh, 476 U.S.,
at 781. The authority to make such traumatic and yet empowering decisions is an element of
basic human dignity. As the joint opinion so eloquently demonstrates, a woman's decision
to terminate her pregnancy is nothing less than a matter of conscience.
Weighing the State's interest in potential life and the woman's
liberty interest, I agree with the joint opinion that the State may "`"expres[s]
a preference for normal childbirth,"'" that the State may take steps to ensure
that a woman's choice "is thoughtful and informed," and that States are free to
enact laws to provide a reasonable framework for a woman to make a decision that has such
profound and lasting meaning. Ante, at 872-873. Serious questions arise, however,
when a State attempts to "persuade the woman to choose childbirth over
abortion." Ante, at 878. Decisional autonomy must limit the State's power to
inject into a woman's most personal deliberations its own views of what is best. The State
may promote its preferences by funding childbirth, by creating and maintaining
alternatives to abortion, and by espousing the virtues of family; but it must respect the
individual's freedom to make such judgments.
This theme runs throughout our decisions concerning reproductive
freedom. In general, Roe's requirement that restrictions on abortions before viability be
justified by the State's interest in maternal health has prevented States from
interjecting regulations designed to influence a woman's decision. Thus, we have upheld
regulations of abortion that are not efforts to sway or direct a woman's choice, but
rather are efforts to enhance the deliberative quality of that decision or are neutral
regulations on the health aspects of her decision. We have, for example, upheld
regulations requiring [505 U.S. 833, 917] written informed consent, see Planned Parenthood
of Central Mo. v. Danforth, 428 U.S. 52 (1976); limited recordkeeping and reporting, see
ibid.; and pathology reports, see Planned Parenthood Assn. of Kansas City, Mo., Inc.
v. Ashcroft, 462 U.S. 476 (1983); as well as various licensing and qualification
provisions, see, e.g., Roe, 410 U.S., at 150; Simopoulos v. Virginia, 462 U.S. 506 (1983).
Conversely, we have consistently rejected state efforts to prejudice a woman's choice,
either by limiting the information available to her, see Bigelow v. Virginia, 421 U.S. 809
(1975), or by "requir[ing] the delivery of information designed `to influence the
woman's informed choice between abortion or childbirth.'" Thornburgh, 476 U.S., at
760; see also Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 442-449
(1983).
In my opinion, the principles established in this long line of cases
and the wisdom reflected in Justice Powell's opinion for the Court in Akron (and followed
by the Court just six years ago in Thornburgh) should govern our decision today. Under
these principles, Pa. Cons. Stat. §§ 3205(a)(2)(i)-(iii) (1990) of the Pennsylvania
statute are unconstitutional. Those sections require a physician or counselor to provide
the woman with a range of materials clearly designed to persuade her to choose not to
undergo the abortion. While the Commonwealth is free, pursuant to § 3208 of the
Pennsylvania law, to produce and disseminate such material, the Commonwealth may not
inject such information into the woman's deliberations just as she is weighing such an
important choice.
Under this same analysis, §§ 3205(a)(1)(i) and (iii) of the
Pennsylvania statute are constitutional. Those sections, which require the physician to
inform a woman of the nature and risks of the abortion procedure and the medical risks of
carrying to term, are neutral requirements comparable to those imposed in other medical
procedures. Those sections indicate no effort by the Commonwealth to influence the [505
U.S. 833, 918] woman's choice in any way. If anything, such requirements enhance, rather
than skew, the woman's decisionmaking.
III
The 24-hour waiting period required by §§ 3205(a)(1)-(2) of the
Pennsylvania statute raises even more serious concerns. Such a requirement arguably
furthers the Commonwealth's interests in two ways, neither of which is constitutionally
permissible.
First, it may be argued that the 24 hour delay is justified by the
mere fact that it is likely to reduce the number of abortions, thus furthering the
Commonwealth's interest in potential life. But such an argument would justify any form of
coercion that placed an obstacle in the woman's path. The Commonwealth cannot further its
interests by simply wearing down the ability of the pregnant woman to exercise her
constitutional right.
Second, it can more reasonably be argued that the 24-hour delay
furthers the Commonwealth's interest in ensuring that the woman's decision is informed and
thoughtful. But there is no evidence that the mandated delay benefits women, or that it is
necessary to enable the physician to convey any relevant information to the patient. The
mandatory delay thus appears to rest on outmoded and unacceptable assumptions about the
decisionmaking capacity of women. While there are well-established and consistently
maintained reasons for the Commonwealth to view with skepticism the ability of minors to
make decisions, see Hodgson v. Minnesota, 497 U.S. 417, 449 (1990), [Fn4] none of those
reasons applies to an [505 U.S. 833, 919] adult woman's decisionmaking ability. Just as we
have left behind the belief that a woman must consult her husband before undertaking
serious matters, see ante, at 895-898, so we must reject the notion that a woman is
less capable of deciding matters of gravity. Cf. Reed v. Reed, 404 U.S. 71 (1971).
==========Begin Footnotes==========
[Fn 4] As we noted in that opinion, the State's "legitimate
interest in protecting minor women from their own immaturity" distinguished that case
from Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983), which
involved a provision that required that mature women, capable of consenting to an
abortion, wait 24 hours after giving consent before undergoing an abortion. Hodgson, 497
U.S., at 449, n. 35.
==========End Footnotes==========
In the alternative, the delay requirement may be premised on the
belief that the decision to terminate a pregnancy is presumptively wrong. This premise is
illegitimate. Those who disagree vehemently about the legality and morality of abortion
agree about one thing: the decision to terminate a pregnancy is profound and difficult. No
person undertakes such a decision lightly - and States may not presume that a woman has
failed to reflect adequately merely because her conclusion differs from the State's
preference. A woman who has, in the privacy of her thoughts and conscience, weighed the
options and made her decision cannot be forced to reconsider all, simply because the State
believes she has come to the wrong conclusion. [Fn5]
==========Begin Footnotes==========
[Fn 5] The joint opinion's reliance on the indirect effects of the
regulation of constitutionally protected activity, see ante, at 873-874, is
misplaced; what matters is not only the effect of a regulation, but also the reason for
the regulation. As I explained in Hodgson:
"In cases involving abortion, as in cases involving the right
to travel or the right to marry, the identification of the constitutionally protected
interest is merely the beginning of the analysis. State regulation of travel and of
marriage is obviously permissible even though a State may not categorically exclude
nonresidents from its borders, Shapiro v. Thompson, 394 U.S. 618, 631 (1969), or deny
prisoners the right to marry, Turner v. Safley, 482 U.S. 78, 94-99 (1987). But the
regulation of constitutionally protected decisions, such as where a person shall reside or
whom he or she shall marry, must be predicated on legitimate state concerns other than
disagreement with the choice the individual has made. Cf. Turner v. Safley, supra;
Loving v. Virginia, 388 U.S. 1, 12 (1967). In the abortion area, a State may have no
obligation to spend its own money, or use its own facilities, to subsidize nontherapeutic
abortions for minors or adults. See, e.g., Maher v. Roe, 432 U.S. 464 (1977); cf. Webster
v. Reproductive [505 U.S. 833, 920] Health Services, 492 U.S. 490, 508-511 (1989); id.,
at 523-524 (O'CONNOR, J., concurring in part and concurring in judgment). A State's value
judgment favoring childbirth over abortion may provide adequate support for decisions
involving such allocation of public funds, but not for simply substituting a state
decision for an individual decision that a woman has a right to make for herself.
Otherwise, the interest in liberty protected by the Due Process Clause would be a nullity.
A state policy favoring childbirth over abortion is not in itself a sufficient
justification for overriding the woman's decision or for placing `obstacles - absolute or
otherwise - in the pregnant woman's path to an abortion.'" 497 U.S., at 435.
==========End Footnotes==========
[505 U.S. 833, 920]
Part of the constitutional liberty to choose is the equal dignity to
which each of us is entitled. A woman who decides to terminate her pregnancy is entitled
to the same respect as a woman who decides to carry the fetus to term. The mandatory
waiting period denies women that equal respect.
IV
In my opinion, a correct application of the "undue burden"
standard leads to the same conclusion concerning the constitutionality of these
requirements. A state-imposed burden on the exercise of a constitutional right is measured
both by its effects and by its character: a burden may be "undue" either because
the burden is too severe or because it lacks a legitimate, rational justification. [Fn6]
==========Begin Footnotes==========
[Fn 6] The meaning of any legal standard can only be understood by
reviewing the actual cases in which it is applied. For that reason, I discount both
JUSTICE SCALIA's comments on past descriptions of the standard, see post, at
988-990 (opinion concurring in judgment in part and dissenting in part), and the attempt
to give it crystal clarity in the joint opinion. The several opinions supporting the
judgment in Griswold v. Connecticut, 381 U.S. 479 (1965), are less illuminating than the
central holding of the case, which appears to have passed the test of time. The future may
also demonstrate that a standard that analyzes both the severity of a regulatory burden
and the legitimacy of its justification will provide a fully adequate framework for the
review of abortion legislation even if the contours of the standard are not
authoritatively articulated in any single opinion.
==========End Footnotes==========
The 24-hour delay requirement fails both parts of this test. The
findings of the District Court establish the severity of [505 U.S. 833, 921] the burden
that the 24-hour delay imposes on many pregnant women. Yet even in those cases in which
the delay is not especially onerous, it is, in my opinion, "undue," because
there is no evidence that such a delay serves a useful and legitimate purpose. As
indicated above, there is no legitimate reason to require a woman who has agonized over
her decision to leave the clinic or hospital and return again another day. While a general
requirement that a physician notify her patients about the risks of a proposed medical
procedure is appropriate, a rigid requirement that all patients wait 24 hours or (what is
true in [505 U.S. 833, 11] practice) much longer to evaluate the significance of
information that is either common knowledge or irrelevant is an irrational, and therefore
"undue," burden.
The counseling provisions are similarly infirm. Whenever government
commands private citizens to speak or to listen, careful review of the justification for
that command is particularly appropriate. In this case, the Pennsylvania statute directs
that counselors provide women seeking abortions with information concerning alternatives
to abortion, the availability of medical assistance benefits, and the possibility of child
support payments. §§ 3205(a)(2)(i)-(iii). The statute requires that this information be
given to all women seeking abortions, including those for whom such information is clearly
useless, such as those who are married, those who have undergone the procedure in the past
and are fully aware of the options, and those who are fully convinced that abortion is
their only reasonable option. Moreover, the statute requires physicians to inform all of
their patients of "[t]he probable gestational age of the unborn child." §§
3205(a)(1)(ii). This information is of little decisional value in most cases, because 90%
of all abortions are performed during the first trimester, [Fn7] when fetal age has less
relevance than when the fetus nears viability. Nor can the information [505 U.S. 833, 922]
required by the statute be justified as relevant to any "philosophic" or
"social" argument, ante at 872, either favoring or disfavoring the
abortion decision in a particular case. In light of all of these facts, I conclude that
the information requirements in §§ 3205(a)(1)(ii) and 3205(a)(2)(i) (iii) do not serve a
useful purpose, and thus constitute an unnecessary - and therefore undue - burden on the
woman's constitutional liberty to decide to terminate her pregnancy.
Accordingly, while I disagree with Parts IV, V-B, and V-D of the
joint opinion, [Fn8] I join the remainder of the Court's opinion.
==========Begin Footnotes==========
[Fn 7] U.S. Dept. of Commerce, Bureau of the Census, Statistical
Abstract of the United States 71 (111th ed. 1991).
[Fn 8] Although I agree that a parental consent requirement (with
the appropriate bypass) is constitutional, I do not join Part V-D of the joint opinion
because its approval of Pennsylvania's informed parental consent requirement is based on
the reasons given in Part V-B, with which I disagree.
==========End Footnotes==========
