Opinion · Supreme Court of the United States
Planned Parenthood of Southeastern Pa. v. Casey
112 S. Ct. 2791
- Type
- Opinion
- Court
- Supreme Court of the United States
- Jurisdiction
- Federal
- Date
- 1992-06-29
- Topic
- general
recognizing that the right to obtain an abortion is a fundamental right, but rejecting application of strict scrutiny | recognizing that the right to obtain an abortion is a fundamental right, but rejecting application of strict scrutiny | holding that pre-viability abortion regulations are unconstitutional if they impose an “undue burden” on a women’s right to terminate her pregnancy | holding that Pennsylvania law requiring spousal notification prior to abortion imposes an undue burden on the right to have an abortion | recognizing that the doctrine of stare decisis is based on the premise "... that no judicial system could do society's work if it eyed each issue afresh in every case that raised it" | recognizing that the doctrine of stare decisis is based on the premise "... that no judicial system could do society’s work if it eyed each issue afresh in every case that raised it” | holding that pre-viability abortion regulations are unconstitutional if they impose an “undue burden” on a women’s right to terminate her pregnancy | holding that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability” | recognizing that the demise of Lochner era reasoning began in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937) | recognizing that the demise of Lochner era reasoning began in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) | concluding that Justice Powell’s analysis in Bakke is “the narrowest footing upon which a race-conscious decision making process could stand” | holding that the determinative question is whether the other concurring Justices would subscribe to or agree with the reasoning of the narrower concurring opinion | holding that courts should not reexamine precedent absent some “justification beyond a present doctrinal disposition to come out differently” | holding that requiring two visits to the physician and the accompanying costs and delay did not unduly burden a woman’s decision to obtain an abortion | recognizing that “with any medical procedure, the State may require a [client] to give her written informed consent” | holding that Pennsylvania law requiring spousal notifica- tion prior to abortion imposes an undue burden on the right to have an abortion | holding that pre-viability abortion regulations are unconstitutional if they impose an "undue burden" on a women's right to terminate her pregnancy | recognizing that the doctrine of stare decisis embodies “[t]he obligation to follow precedent” | recognizing that the doctrine of stare decisis embodies "[t]he obligation to follow precedent" | recognizing that the demise of Lochner era reasoning began in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937) | recognizing that the demise of Lochner era reasoning began in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937) | recognizing that the demise of Lochner era reasoning began in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937) | recognizing that abusers often isolate victims from financial resources required for leaving the relationship | recognizing that abusers often isolate victims from financial resources required for leaving the relationship | acknowledging that “time has overtaken some of [Roe v. Wade’s, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973 | recognizing along with the State’s legitimate interest in the life of the fetus, its “legitimate interes[t] ... in protecting the health of the woman” (emphasis added) | noting that “the Constitution places limits on a State’s right to interfere with a person’s most basic decisions about ... bodily integrity,” | holding that spousal-notice requirement imposed substantial obstacle for a large fraction of married women seeking abortions who did not wish to notify their husbands of their intentions because of the very real possibility that their husbands would try to obstruc
Citator
- Cited by
- 1065 opinions
PLANNED PARENTHOOD OF SOUTHEASTERN PA. v. CASEY,505 U.S. 833(1992)
112 S.Ct. 2791
PLANNED PARENTHOOD OF SOUTHEASTERN
PENNSYLVANIA, ET AL.v.
CASEY, GOVERNOR OF PENNSYLVANIA, ET AL.,
CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
Nos. 91-744
Argued April 22, 1992
Decided June 29, 1992fn*
JUSTICE O'CONNOR, JUSTICE KENNEDY, and JUSTICE SOUTER delivered the opinion of the Court with respect to Parts I, II, and III, concluding that consideration of the fundamental constitutional question resolved byRoe v. Wade,410 U.S. 113, principles of institutional integrity, and the rule ofstare decisisrequire thatRoe'sessential holding bePage 834retained and reaffirmed as to each of its three parts: (1) a recognition of a woman's right to choose to have an abortion before fetal viability and to obtain it without undue interference from the State, whose previability interests are not strong enough to support an abortion prohibition or the imposition of substantial obstacles to the woman's effective right to elect the procedure; (2) a confirmation of the State's power to restrict abortions after viability, if the law contains exceptions for pregnancies endangering a woman's life or health; and (3) the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. Pp. 844-869.
(a) A reexamination of the principles that define the woman's rights and the State's authority regarding abortions is required by the doubt this Court's subsequent decisions have cast upon the meaning and reach ofRoe'scentral holding, by the fact that THE CHIEF JUSTICE would overruleRoe, and by the necessity that state and federal courts and legislatures have adequate guidance on the subject. Pp. 844-845.
(b)Roedetermined that a woman's decision to terminate her pregnancy is a "liberty" protected against state interference by the substantive component of the Due Process Clause of theFourteenthAmendment. Neither the Bill of Rights nor the specific practices of States at the time of theFourteenthAmendment's adoption marks the outer limits of the substantive sphere of such "liberty." Rather, the adjudication of substantive due process claims may require this Court to exercise its reasoned judgment in determining the boundaries between the individual's liberty and the demands of organized society. The Court's decisions have afforded constitutional protection to personal decisions relating to marriage, see,e.g., Lovingv.Virginia,388 U.S. 1, procreation,Skinner v. Oklahoma ex rel Williamson,316 U.S. 535, family relationships,Prince v. Massachusetts,321 U.S. 158, child rearing and education,Pierce v. Society of Sisters,268 U.S. 510, and contraception,Griswold v. Connecticut,381 U.S. 479, and have recognized the right of the individual to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child,Eisenstadt v. Baird,405 U.S. 438,453.Roe'scentral holding properly invoked the reasoning and tradition of these precedents. Pp. 846-853.
(c) Application of the doctrine ofstare decisisconfirms thatRoe'sessential holding should be reaffirmed. In reexamining that holding, the Court's judgment is informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling the holding with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling. Pp. 854-855.Page 835
(d) AlthoughRoehas engendered opposition, it has in no sense proven unworkable, representing as it does a simple limitation beyond which a state law is unenforceable. P. 855.
(e) TheRoerule's limitation on state power could not be repudiated without serious inequity to people who, for two decades of economic and social developments, have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives. The Constitution serves human values, and while the effect of reliance onRoecannot be exactly measured, neither can the certain costs of overrulingRoefor people who have ordered their thinking and living around that case be dismissed. Pp. 855-856.
(f) No evolution of legal principle has leftRoe'scentral rule a doctrinal anachronism discounted by society. IfRoeis placed among the cases exemplified byGriswold, supra, it is clearly in no jeopardy, since subsequent constitutional developments have neither disturbed, nor do they threaten to diminish, the liberty recognized in such cases. Similarly, ifRoeis seen as stating a rule of personal autonomy and bodily integrity, akin to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection, this Court's post-Roedecisions accord withRoe'sview that a State's interest in the protection of life falls short of justifying any plenary override of individual liberty claims. See,e.g., Cruzan v.Director, M. Dept. of Health,497 U.S. 261,278. Finally, ifRoeis classified assui generis, there clearly has been no erosion of its central determination. It was expressly reaffirmed inAkron v. AkronCenter for Reproductive Health, Inc.,462 U.S. 416(Akron I), andThornburgh v. American College of Obstetricians and Gynecologists,476 U.S. 747; and, inWebster v. Reproductive Health Services,492 U.S. 490, a majority either voted to reaffirm or declined to address the constitutional validity ofRoe'scentral holding. Pp. 857-859.
(g) No change inRoe'sfactual underpinning has left its central holding obsolete, and none supports an argument for its overruling. Although subsequent maternal health care advances allow for later abortions safe to the pregnant woman, and post-Roeneonatal care developments have advanced viability to a point somewhat earlier, these facts go only to the scheme of time limits on the realization of competing interests. Thus, any later divergences from the factual premises ofRoehave no bearing on the validity of its central holding, that viability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative banPage 836on nontherapeutic abortions. The soundness or unsoundness of that constitutional judgment in no sense turns on when viability occurs. Whenever it may occur, its attainment will continue to serve as the critical fact. Pp. 860.
(h) A comparison betweenRoeand two decisional lines of comparable significance — the line identified withLochner v. New York,198 U.S. 45, and the line that began withPlessy v. Ferguson,163 U.S. 537— confirms the result reached here. Those lines were overruled — by, respectively,West Coast Hotel Co. v. Parrish,300 U.S. 379, andBrownv. Board of Education,347 U.S. 483— on the basis of facts, or an understanding of facts, changed from those which furnished the claimed justifications for the earlier constitutional resolutions. The overruling decisions were comprehensible to the Nation, and defensible, as the Court's responses to changed circumstances. In contrast, because neither the factual underpinnings ofRoe'scentral holding nor this Court's understanding of it has changed (and because no other indication of weakened precedent has been shown), the Court could not pretend to be reexaminingRoewith any justification beyond a present doctrinal disposition to come out differently from theRoeCourt. That is an inadequate basis for overruling a prior case. Pp. 861-864.
(i) OverrulingRoe'scentral holding would not only reach an unjustifiable result understare decisisprinciples, but would seriously weaken the Court's capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law. Where the Court acts to resolve the sort of unique, intensely divisive controversy reflected inRoe, its decision has a dimension not present in normal cases, and is entitled to rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation. Only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. Moreover, the country's loss of confidence in the Judiciary would be underscored by condemnation for the Court's failure to keep faith with those who support the decision at a cost to themselves. A decision to overruleRoe'sessential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy and to the Nation's commitment to the rule of law. Pp. 864-869.
JUSTICE O'CONNOR, JUSTICE KENNEDY, and JUSTICE SOUTER concluded in Part IV that an examination ofRoe v. Wade,410 U.S. 113, andPage 837subsequent cases, reveals a number of guiding principles that should control the assessment of the Pennsylvania statute:
(a) To protect the central right recognized byRoewhile at the same time accommodating the State's profound interest in potential life, seeid., at 162, the undue burden standard should be employed. An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.
(b)Roe'srigid trimester framework is rejected. To promote the State's interest in potential life throughout pregnancy, the State may take measures to ensure that the woman's choice is informed. Measures designed to advance this interest should not be invalidated if their purpose is to persuade the woman to choose childbirth over abortion. These measures must not be an undue burden on the right.
(c) As with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an abortion, but may not impose unnecessary health regulations that present a substantial obstacle to a woman seeking an abortion.
(d) Adoption of the undue burden standard does not disturbRoe'sholding that, regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.
(e)Roe'sholding that "subsequent to viability, the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother" is also reaffirmed.Id., at 164-165. Pp. 869-879.
JUSTICE O'CONNOR, JUSTICE KENNEDY, and JUSTICE SOUTER delivered the opinion of the Court with respect to Parts V-A and V-C, concluding that:
1. As construed by the Court of Appeals, § 3203's medical emergency definition is intended to assure that compliance with the State's abortion regulations would not in any way pose a significant threat to a woman's life or health, and thus does not violate the essential holding ofRoe, supra, at 164. Although the definition could be interpreted in an unconstitutional manner, this Court defers to lower federal court interpretations of state law unless they amount to "plain" error. Pp. 879-880.
2. Section 3209's husband notification provision constitutes an undue burden, and is therefore invalid. A significant number of women will likely be prevented from obtaining an abortion just as surely as if Pennsylvania had outlawed the procedure entirely. The fact that § 3209 may affect fewer than one percent of women seeking abortions does not save it from facial invalidity, since the proper focus of constitutionalPage 838inquiry is the group for whom the law is a restriction, not the group for whom it is irrelevant. Furthermore, it cannot be claimed that the father's interest in the fetus' welfare is equal to the mother's protected liberty, since it is an inescapable biological fact that state regulation with respect to the fetus will have a far greater impact on the pregnant woman's bodily integrity than it will on the husband. Section 3209 embodies a view of marriage consonant with the common law status of married women, but repugnant to this Court's present understanding of marriage and of the nature of the rights secured by the Constitution. SeePlanned Parenthood of Central Mo. v.Danforth,428 U.S. 52,69. Pp. 887-898.
JUSTICE O'CONNOR, JUSTICE KENNEDY, and JUSTICE SOUTER, joined by JUSTICE STEVENS, concluded in Part V-E that all of the statute's recordkeeping and reporting requirements, except that relating to spousal notice, are constitutional. The reporting provision relating to the reasons a married woman has not notified her husband that she intends to have an abortion must be invalidated, because it places an undue burden on a woman's choice. Pp. 900-901.
JUSTICE O'CONNOR, JUSTICE KENNEDY, and JUSTICE SOUTER concluded in Parts V-B and V-D that:
1. Section 3205's informed consent provision is not an undue burden on a woman's constitutional right to decide to terminate a pregnancy. To the extentAkron I,462 U.S., at 444, andThornburgh,476 U.S., at 762, find a constitutional violation when the government requires, as it does here, the giving of truthful, nonmisleading information about the nature of the abortion procedure, the attendant health risks and those of childbirth, and the "probable gestational age" of the fetus, those cases are inconsistent withRoe'sacknowledgment of an important interest in potential life, and are overruled. Requiring that the woman be informed of the availability of information relating to the consequences to the fetus does not interfere with a constitutional right of privacy between a pregnant woman and her physician, since the doctor-patient relation is derivative of the woman's position, and does not underlie or override the abortion right. Moreover, the physician'sFirstAmendment rights not to speak are implicated only as part of the practice of medicine, which is licensed and regulated by the State. There is no evidence here that requiring a doctor to give the required information would amount to a substantial obstacle to a woman seeking an abortion. The premise behindAkronI'sinvalidation of a waiting period between the provision of the information deemed necessary to informed consent and the performance of an abortion,462 U.S., at 450, is also wrong. Although § 3205's 24-hour waiting period may make some abortions more expensive and less convenient, it cannot be said that it is invalidPage 839on the present record and in the context of this facial challenge. Pp. 881-887.
2. Section 3206's one-parent consent requirement and judicial bypass procedure are constitutional. See,e.g., Ohio v. Akron Center forReproductive Health,497 U.S. 502,510-519. Pp. 899-900.
JUSTICE BLACKMUN concluded that application of the strict scrutiny standard of review required by this Court's abortion precedents results in the invalidation of all the challenged provisions in the Pennsylvania statute, including the reporting requirements, and therefore concurred in the judgment that the requirement that a pregnant woman report her reasons for failing to provide spousal notice is unconstitutional. Pp. 930, 934-936.
THE CHIEF JUSTICE, joined by JUSTICE WHITE, JUSTICE SCALIA, and JUSTICE THOMAS, concluded that:
1. AlthoughRoe v. Wade,410 U.S. 113, is not directly implicated by the Pennsylvania statute, which simply regulates, and does not prohibit, abortion, a reexamination of the "fundamental right"Roeaccorded to a woman's decision to abort a fetus, with the concomitant requirement that any state regulation of abortion survive "strict scrutiny,"id., at 154-156, is warranted by the confusing and uncertain state of this Court's post-Roedecisional law. A review of post-Roecases demonstrates both that they have expanded uponRoein imposing increasingly greater restrictions on the States, seeThornburghv.American College of Obstetricians and Gynecologists,476 U.S. 747,783(Burger, C.J., dissenting), and that the Court has become increasingly more divided, none of the last three such decisions having commanded a majority opinion, seeOhiov.Akron Center for Reproductive Health,497 U.S. 502;Hodgson v. Minnesota,497 U.S. 417;Webster v. ReproductiveHealth Services,492 U.S. 490. This confusion and uncertainty complicated the task of the Court of Appeals, which concluded that the "undue burden" standard adopted by JUSTICE O'CONNOR inWebsterandHodgsongoverns the present cases. Pp. 944-951.
2. TheRoeCourt reached too far when it analogized the right to abort a fetus to the rights involved inPierce v. Society of Sisters,268 U.S. 510;Meyer v. Nebraska,262 U.S. 390;Loving v. Virginia,388 U.S. 1; andGriswold v. Connecticut,381 U.S. 479, and thereby deemed the right to abortion to be "fundamental." None of these decisions endorsed an all-encompassing "right of privacy," asRoe,supra, at 152-153, claimed. Because abortion involves the purposeful termination of potential life, the abortion decision must be recognized assui generis, different in kind from the rights protected in the earlier cases under the rubric of personal or family privacy and autonomy. And the historical traditions of the American people — asPage 840evidenced by the English common law and by the American abortion statutes in existence both at the time of theFourteenthAmendment's adoption andRoe'sissuance — do not support the view that the right to terminate one's pregnancy is "fundamental." Thus, enactments abridging that right need not be subjected to strict scrutiny. Pp. 951-953.
3. The undue burden standard adopted by the joint opinion of JUSTICES O'CONNOR, KENNEDY, and SOUTER has no basis in constitutional law, and will not result in the sort of simple limitation, easily applied, which the opinion anticipates. To evaluate abortion regulations under that standard, judges will have to make the subjective, unguided determination whether the regulations place "substantial obstacles" in the path of a woman seeking an abortion, undoubtedly engendering a variety of conflicting views. The standard presents nothing more workable than the trimester framework the joint opinion discards, and will allow the Court, under the guise of the Constitution, to continue to impart its own preferences on the States in the form of a complex abortion code. Pp. 964-966.
4. The correct analysis is that set forth by the plurality opinion inWebster, supra:a woman's interest in having an abortion is a form of liberty protected by the Due Process Clause, but States may regulate abortion procedures in ways rationally related to a legitimate state interest. P. 966.
5. Section 3205's requirements are rationally related to the State's legitimate interest in assuring that a woman's consent to an abortion be fully informed. The requirement that a physician disclose certain information about the abortion procedure and its risks and alternatives is not a large burden, and is clearly related to maternal health and the State's interest in informed consent. In addition, a State may rationally decide that physicians are better qualified than counselors to impart this information and answer questions about the abortion alternatives' medical aspects. The requirement that information be provided about the availability of paternal child support and state-funded alternatives is also related to the State's informed consent interest, and furthers the State's interest in preserving unborn life. That such information might create some uncertainty and persuade some women to forgo abortions only demonstrates that it might make a difference, and is therefore relevant to a woman's informed choice. In light of this plurality's rejection ofRoe's"fundamental right" approach to this subject, the Court's contrary holding inThornburghis not controlling here. For the same reason, this Court's previous holding invalidating a State's 24-hour mandatory waiting period should not be followed. The waiting period helps ensure that a woman's decision to abort is a well-considered one, and rationally furthers the State's legitimate interest in maternal health andPage 841in unborn life. It may delay, but does not prohibit, abortions; and both it and the informed consent provisions do not apply in medical emergencies. Pp. 966-970.
6. The statute's parental consent provision is entirely consistent with this Court's previous decisions involving such requirements. See,e.g., Planned Parenthood Ass. of Kansas City, M., Inc. v.Ashcroft,462 U.S. 476. It is reasonably designed to further the State's important and legitimate interest "in the welfare of its young citizens, whose immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise their rights wisely."Hodgson, supra, at 444. Pp. 970-971.
7. Section 3214(a)'s requirement that abortion facilities file a report on each abortion is constitutional, because it rationally furthers the State's legitimate interests in advancing the state of medical knowledge concerning maternal health and prenatal life, in gathering statistical information with respect to patients, and in ensuring compliance with other provisions of the Act, while keeping the reports completely confidential. Public disclosure of other reports made by facilities receiving public funds — those identifying the facilities and any parent, subsidiary, or affiliated organizations, § 3207(b), and those revealing the total number of abortions performed, broken down by trimester, § 3214(f) — are rationally related to the State's legitimate interest in informing taxpayers as to who is benefiting from public funds and what services the funds are supporting; and records relating to the expenditure of public funds are generally available to the public under Pennsylvania law. Pp. 976-977.
JUSTICE SCALIA, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE THOMAS, concluded that a woman's decision to abort her unborn child is not a constitutionally protected "liberty," because (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed. See,e.g., Ohio v. Akron Center forReproductive Health,497 U.S. 502,520(SCALIA, J., concurring). The Pennsylvania statute should be upheld in its entirety under the rational basis test. Pp. 979-981.
O'CONNOR, KENNEDY, and SOUTER, JJ., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, V-A, V-C, and VI, in which BLACKMUN and STEVENS, JJ., joined, an opinion with respect to Part V-E, in which STEVENS, J., joined, and an opinion with respect to Parts IV, V-B, and V-D. STEVENS, J., filed an opinion concurring in part and dissenting in part,post, p. 911. BLACKMUN, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, post, p. 922 REHNQUIST, C.J., filed an opinion concurring in the judgment in part and dissenting in part, in whichPage 842WHITE, SCALIA, and THOMAS, JJ., joined,post, p. 944. SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C.J., and WHITE and THOMAS, JJ., joined,post, p. 979.
Liberty finds no refuge in a jurisprudence of doubt. Yet, 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages,Roe v. Wade,410 U.S. 113(1973), that definition of liberty is still questioned. Joining the respondents asamicuscuriae, the United States, as it has done in five other cases in the last decade, again asks us to overruleRoe. See Brief for Respondents 104-117; Brief for United States asAmicus Curiae8.
At issue in these cases are five provisions of the Pennsylvania Abortion Control Act of 1982, as amended in 1988 and 1989. 18 Pa. Cons. Stat. §§ 3203-3220 (1990). Relevant portions of the Act are set forth in the Appendix.Infraat 902. The Act requires that a woman seeking an abortion give her informed consent prior to the abortion procedure, and specifies that she be provided with certain information at least 24 hours before the abortion is performed. § 3205. For a minor to obtain an abortion, the Act requires the informed consent of one of her parents, but provides for a judicial bypass option if the minor does not wish to or cannot obtain a parent's consent. § 3206. Another provision of the Act requires that, unless certain exceptions apply, a married woman seeking an abortion must sign a statement indicating that she has notified her husband of her intended abortion. § 3209. The Act exempts compliance with these three requirements in the event of a "medical emergency," which is defined in § 3203 of the Act. See §§ 3203, 3205(a), 3206(a), 3209(c). In addition to the above provisions regulating the performance of abortions, the Act imposes certain reporting requirements on facilities that provide abortion services. §§ 3207(b), 3214(a), 3214(f).Page 845
Before any of these provisions took effect, the petitioners, who are five abortion clinics and one physician representing himself as well as a class of physicians who provide abortion services, brought this suit seeking declaratory and injunctive relief. Each provision was challenged as unconstitutional on its face. The District Court entered a preliminary injunction against the enforcement of the regulations, and, after a 3-day bench trial, held all the provisions at issue here unconstitutional, entering a permanent injunction against Pennsylvania's enforcement of them.744 F. Supp. 1323(ED Pa. 1990). The Court of Appeals for the Third Circuit affirmed in part and reversed in part, upholding all of the regulations except for the husband notification requirement.947 F.2d 682(1991). We granted certiorari.502 U.S. 1056(1992).
The Court of Appeals found it necessary to follow an elaborate course of reasoning even to identify the first premise to use to determine whether the statute enacted by Pennsylvania meets constitutional standards. See947 F.2d, at 687-698. And at oral argument in this Court, the attorney for the parties challenging the statute took the position that none of the enactments can be upheld without overrulingRoe v. Wade. Tr. of Oral Arg. 5-6. We disagree with that analysis; but we acknowledge that our decisions afterRoecast doubt upon the meaning and reach of its holding. Further, The CHIEF JUSTICE admits that he would overrule the central holding ofRoeand adopt the rational relationship test as the sole criterion of constitutionality. Seepost, at 944, 966. State and federal courts, as well as legislatures throughout the Union, must have guidance as they seek to address this subject in conformance with the Constitution. Given these premises, we find it imperative to review once more the principles that define the rights of the woman and the legitimate authority of the State respecting the termination of pregnancies by abortion procedures.
After considering the fundamental constitutional questions resolved byRoe, principles of institutional integrity, and the rule ofstarePage 846decisis, we are led to conclude this: the essential holding ofRoe v.Wadeshould be retained and once again reaffirmed.
It must be stated at the outset and with clarity thatRoe'sessential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability if the law contains exceptions for pregnancies which endanger the woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.
II
Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process Clause of theFourteenthAmendment. It declares that no State shall "deprive any person of life, liberty, or property, without due process of law." The controlling word in the cases before us is "liberty." Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years, sinceMugler v. Kansas,123 U.S. 623,660-661(1887), the Clause has been understood to contain a substantive component as well, one "barring certain government actions regardless of the fairness of the procedures used to implement them."Daniels v.Williams,474 U.S. 327,331(1986). As Justice Brandeis (joined by Justice Holmes) observed, "[d]espite arguments to the contrary which had seemed to me persuasive, it is settled that the due process clause of thePage 847FourteenthAmendment applies to matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States."Whitney v. California,274 U.S. 357,373(1927) (concurring opinion). "[T]he guaranties of due process, though having their roots in Magna Carta's `per legem terrae' and considered as procedural safeguards `against executive usurpation and tyranny,' have in this country `become bulwarks also against arbitrary legislation.'"Poe v. Ullman,367 U.S. 497,541(1961) (Harlan, J., dissenting from dismissal on jurisdictional grounds) (quotingHurtado v.California,110 U.S. 516,532(1884)).
The most familiar of the substantive liberties protected by theFourteenthAmendment are those recognized by the Bill of Rights. We have held that the Due Process Clause of theFourteenthAmendment incorporates most of the Bill of Rights against the States. See,e.g.,Duncan v. Louisiana,391 U.S. 145,147-148(1968). It is tempting, as a means of curbing the discretion of federal judges, to suppose that liberty encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight Amendments to the Constitution. SeeAdamson v.California,332 U.S. 46,68-92(1947) (Black, J., dissenting). But of course this Court has never accepted that view.
It is also tempting, for the same reason, to suppose that the Due Process Clause protects only those practices, defined at the most specific level, that were protected against government interference by other rules of law when theFourteenthAmendment was ratified. SeeMichael H. v. Gerald D.,491 U.S. 110,127-128, n. 6 (1989) (opinion of SCALIA, J.). But such a view would be inconsistent with our law. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. We have vindicated this principle before. Marriage is mentioned nowhere in the Bill of Rights, and interracial marriage was illegal in most States in the 19thPage 848century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause inLoving v. Virginia,388 U.S. 1,12(1967) (relying, in an opinion for eight Justices, on the Due Process Clause). Similar examples may be found inTurner v.Safley,482 U.S. 78,94-99(1987); inCarey v. Population ServicesInternational,431 U.S. 678,684-686(1977); inGriswold v.Connecticut,381 U.S. 479,481-482(1965), as well as in the separate opinions of a majority of the Members of the Court in that case,id. at 486-488 (Goldberg, J., joined by Warren, C.J., and Brennan, J., concurring) (expressly relying on due process),id. at 500-502 (Harlan, J., concurring in judgment) (same),id. at 502-507, (WHITE, J., concurring in judgment) (same); inPierce v. Society of Sisters,268 U.S. 510,534-535(1925); and inMeyer v. Nebraska,262 U.S. 390,399-403(1923).
Neither the Bill of Rights nor the specific practices of States at the time of the adoption of theFourteenthAmendment marks the outer limits of the substantive sphere of liberty which theFourteenthAmendment protects. See U.S. Const., Amdt.9. As the second Justice Harlan recognized:
"[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment."Page 849Poe v. Ullman, supra, at 543 (dissenting from dismissal on jurisdictional grounds).
Justice Harlan wrote these words in addressing an issue the full Court did not reach inPoe v. Ullman, but the Court adopted his position four Terms later inGriswold v.Connecticut, supra. InGriswold, we held that the Constitution does not permit a State to forbid a married couple to use contraceptives. That same freedom was later guaranteed, under the Equal Protection Clause, for unmarried couples. SeeEisenstadt v. Baird,405 U.S. 438(1972). Constitutional protection was extended to the sale and distribution of contraceptives inCarey v. Population ServicesInternational, supra. It is settled now, as it was when the Court heard arguments inRoe v. Wade, that the Constitution places limits on a State's right to interfere with a person's most basic decisions about family and parenthood, seeCareyv.Population Services International,supra; Moorev.East Cleveland,431 U.S. 494(1977);Eisenstadt v.Baird, supra; Loving v. Virginia, supra; Griswold v. Connecticut,supra; Skinner v. Oklahoma ex rel. Williamson,316 U.S. 535(1942);Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra, as well as bodily integrity, see,e.g., Washington v. Harper,494 U.S. 210,221-222(1990);Winston v. Lee,470 U.S. 753(1985);Rochin v.California,342 U.S. 165(1952).
The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which, by tradition, courts always have exercised: reasoned judgment. Its boundaries are not susceptible of expression as a simple rule. That does not mean we are free to invalidate state policy choices with which we disagree; yet neither does it permit us to shrink from the duties of our office. As Justice Harlan observed:
"Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that canPage 850be 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."Poe v. Ullman,367 U.S., at 542(dissenting from dismissal on jurisdictional grounds).
See alsoRochin v. California,supra, at 171-172 (Frankfurter, J., writing for the Court) ("To believe that this judicial exercise of judgment could be avoided by freezing `due process of law' at some fixed stage of time or thought is to suggest that the most important aspect of constitutional adjudication is a function for inanimate machines, and not for judges").
Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code. The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter, except perhaps in those rarePage 851circumstances in which the pregnancy is itself a danger to her own life or health, or is the result of rape or incest.
It is conventional constitutional doctrine that, where reasonable people disagree, the government can adopt one position or the other. See,e.g., Ferguson v. Skrupa,372 U.S. 726(1963);Williamson v. LeeOptical of Okla., Inc.,348 U.S. 483(1955). That theorem, however, assumes a state of affairs in which the choice does not intrude upon a protected liberty. Thus, while some people might disagree about whether or not the flag should be saluted, or disagree about the proposition that it may not be defiled, we have ruled that a State may not compel or enforce one view or the other. SeeWest Virginia Bd. of Ed. v.Barnette,319 U.S. 624(1943);Texas v. Johnson,491 U.S. 397(1989).
Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.Carey v. Population ServicesInternational,431 U.S., at 685. Our cases recognize the right of theindividual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.Eisenstadt v. Baird, supra, at 453 (emphasis in original). Our precedents "have respected the private realm of family life which the state cannot enter."Prince v. Massachusetts,321 U.S. 158,166(1944). These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by theFourteenthAmendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.Page 852
These considerations begin our analysis of the woman's interest in terminating her pregnancy, but cannot end it, for this reason: though the abortion decision may originate within the zone of conscience and belief, it is more than a philosophic exercise. Abortion is a unique act. It is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedure; for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one's beliefs, for the life or potential life that is aborted. Though abortion is conduct, it does not follow that the State is entitled to proscribe it in all instances. That is because the liberty of the woman is at stake in a sense unique to the human condition, and so, unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.
It should be recognized, moreover, that in some critical respects, the abortion decision is of the same character as the decision to use contraception, to whichGriswold v. Connecticut, Eisenstadt v. Baird, andCarey v. Population Services Internationalafford constitutional protection. We have no doubt as to the correctness of those decisions. TheyPage 853support the reasoning inRoerelating to the woman's liberty, because they involve personal decisions concerning not only the meaning of procreation but also human responsibility and respect for it. As with abortion, reasonable people will have differences of opinion about these matters. One view is based on such reverence for the wonder of creation that any pregnancy ought to be welcomed and carried to full term, no matter how difficult it will be to provide for the child and ensure its wellbeing. Another is that the inability to provide for the nurture and care of the infant is a cruelty to the child and an anguish to the parent. These are intimate views with infinite variations, and their deep, personal character underlay our decisions inGriswold, Eisenstadt, andCarey. The same concerns are present when the woman confronts the reality that, perhaps despite her attempts to avoid it, she has become pregnant.
It was this dimension of personal liberty thatRoesought to protect, and its holding invoked the reasoning and the tradition of the precedents we have discussed, granting protection to substantive liberties of the person.Roewas, of course, an extension of those cases and, as the decision itself indicated, the separate States could act in some degree to further their own legitimate interests in protecting prenatal life. The extent to which the legislatures of the States might act to outweigh the interests of the woman in choosing to terminate her pregnancy was a subject of debate both inRoeitself and in decisions following it.
While we appreciate the weight of the arguments made on behalf of the State in the cases before us, arguments which in their ultimate formulation conclude thatRoeshould be overruled, the reservations any of us may have in reaffirming the central holding ofRoeare outweighed by the explication of individual liberty we have given, combined with the force ofstare decisis. We turn now to that doctrine.Page 854
III
A
The obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit. With Cardozo, we recognize that no judicial system could do society's work if it eyed each issue afresh in every case that raised it. See B. Cardozo, The Nature of the Judicial Process 149 (1921). Indeed, the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable. See Powell, Stare Decisis and Judicial Restraint, 1991 Journal of Supreme Court History 13, 16. At the other extreme, a different necessity would make itself felt if a prior judicial ruling should come to be seen so clearly as error that its enforcement was, for that very reason, doomed.
Even when the decision to overrule a prior case is not, as in the rare, latter instance, virtually foreordained, it is common wisdom that the rule ofstare decisisis not an "inexorable command," and certainly it is not such in every constitutional case, seeBurnetv.Coronado OilGas Co.,285 U.S. 393,405-411(1932) (Brandeis, J., dissenting). See alsoPayne v. Tennessee,501 U.S. 808,842(1991) (SOUTER, J., joined by KENNEDY, J., concurring);Arizona v. Rumsey,467 U.S. 203,212(1984). Rather, when this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. Thus, for example, we may ask whether the rule has proven to be intolerable simply in defying practical workability,Swift Co. v. Wickham,382 U.S. 111,116(1965); whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation,e.g., United States v. Title Ins. TrustPage 855Co.,265 U.S. 472,486(1924); whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, seePattersonv.McLean Credit Union,491 U.S. 164,173-174(1989); or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification,e.g., Burnet, supra, at 412 (Brandeis, J., dissenting).
So in this case, we may enquire whetherRoe'scentral rule has been found unworkable; whether the rule's limitation on state power could be removed without serious inequity to those who have relied upon it or significant damage to the stability of the society governed by it; whether the law's growth in the intervening years has leftRoe'scentral rule a doctrinal anachronism discounted by society; and whetherRoe'spremises of fact have so far changed in the ensuing two decades as to render its central holding somehow irrelevant or unjustifiable in dealing with the issue it addressed.
1
AlthoughRoehas engendered opposition, it has in no sense proven "unworkable," seeGarciav.San Antonio Metropolitan Transit Authority,469 U.S. 528,546(1985), representing as it does a simple limitation beyond which a state law is unenforceable. WhileRoehas, of course, required judicial assessment of state laws affecting the exercise of the choice guaranteed against government infringement, and although the need for such review will remain as a consequence of today's decision, the required determinations fall within judicial competence.
2
The inquiry into reliance counts the cost of a rule's repudiation as it would fall on those who have relied reasonably on the rule's continued application. Since the classic case for weighing reliance heavily in favor of following the earlier rule occurs in the commercial context, seePaynev.Tennessee, supra, at 828, where advancePage 856planning of great precision is most obviously a necessity, it is no cause for surprise that some would find no reliance worthy of consideration in support ofRoe.
While neither respondents nor theiramiciin so many words deny that the abortion right invites some reliance prior to its actual exercise, one can readily imagine an argument stressing the dissimilarity of this case to one involving property or contract. Abortion is customarily chosen as an unplanned response to the consequence of unplanned activity or to the failure of conventional birth control, and except on the assumption that no intercourse would have occurred but forRoe'sholding, such behavior may appear to justify no reliance claim. Even if reliance could be claimed on that unrealistic assumption, the argument might run, any reliance interest would bede minimis. This argument would be premised on the hypothesis that reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.
To eliminate the issue of reliance that easily, however, one would need to limit cognizable reliance to specific instances of sexual activity. But to do this would be simply to refuse to face the fact that, for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives. See,e.g., R. Petchesky, Abortion and Woman's Choice 109, 133, n. 7 (rev. ed. 1990). The Constitution serves human values, and while the effect of reliance onRoecannot be exactly measured, neither can the certain cost of overrulingRoefor people who have ordered their thinking and living around that case be dismissed.Page 857
3
No evolution of legal principle has leftRoe'sdoctrinal footings weaker than they were in 1973. No development of constitutional law since the case was decided has implicitly or explicitly leftRoebehind as a mere survivor of obsolete constitutional thinking.
It will be recognized, of course, thatRoestands at an intersection of two lines of decisions, but in whichever doctrinal category one reads the case, the result for present purposes will be the same. TheRoeCourt itself placed its holding in the succession of cases most prominently exemplified byGriswold v. Connecticut,381 U.S. 479(1965). SeeRoe,410 U.S., at 152-153. When it is so seen,Roeis clearly in no jeopardy, since subsequent constitutional developments have neither disturbed, nor do they threaten to diminish, the scope of recognized protection accorded to the liberty relating to intimate relationships, the family, and decisions about whether or not to beget or bear a child. See,e.g., Carey v. Population ServicesInternational,431 U.S. 678(1977);Moore v. East Cleveland,431 U.S. 494(1977).Roe, however, may be seen not only as an exemplar ofGriswoldliberty but as a rule (whether or not mistaken) of personal autonomy and bodily integrity, with doctrinal affinity to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection. If so, our cases sinceRoeaccord withRoe'sview that a State's interest in the protection of life falls short of justifying any plenary override of individual liberty claims.Cruzan v. Director,Mo. Dept. of Health,497 U.S. 261,278(1990); cf.,e.g., Rigginsv. Nevada,504 U.S. 127,135(1992);Washingtonv.Harper,494 U.S. 210(1990); see also,e.g., Rochinv.California,342 U.S. 165(1952);Jacobson v. Massachusetts,197 U.S. 11,24-30(1905).
Finally, one could classifyRoeassui generis. If the case is so viewed, then there clearly has been no erosion of its central determination. The original holding resting on thePage 858concurrence of seven Members of the Court in 1973 was expressly affirmed by a majority of six in 1983, seeAkronv.Akron Center forReproductive Health, Inc.,462 U.S. 416(Akron I), and by a majority of five in 1986, seeThornburghv.AmericanCollege of Obstetricians and Gynecologists,476 U.S. 747, expressing adherence to the constitutional ruling despite legislative efforts in some States to test its limits. More recently, inWebsterv. Reproductive Health Services,492 U.S. 490(1989), although two of the present authors questioned the trimester framework in a way consistent with our judgment today, seeid., at 518 (REHNQUIST, C.J., joined by WHITE and KENNEDY, JJ.);id., at 529 (O'CONNOR, J., concurring in part and concurring in judgment), a majority of the Court either decided to reaffirm or declined to address the constitutional validity of the central holding ofRoe.See Webster,492 U.S., at 521(REHNQUIST, C.J., joined by WHITE and KENNEDY, JJ.);id., at 525-526 (O'CONNOR, J., concurring in part and concurring in judgment);id., at 537, 553 (BLACKMUN, J., joined by Brennan and Marshall, JJ., concurring in part and dissenting in part);id., at 561-563 (STEVENS, J., concurring in part and dissenting in part).
Nor will courts building uponRoebe likely to hand down erroneous decisions as a consequence. Even on the assumption that the central holding ofRoewas in error, that error would go only to the strength of the state interest in fetal protection, not to the recognition afforded by the Constitution to the woman's liberty. The latter aspect of the decision fits comfortably within the framework of the Court's prior decisions, includingSkinner v. Oklahoma ex rel. Williamson,316 U.S. 535(1942);Griswold, supra; Loving v. Virginia,388 U.S. 1(1967); andEisenstadt v. Baird,405 U.S. 438(1972), the holdings of which are "not a series of isolated points," but mark a "rational continuum."Poe v. Ullman,367 U.S., at 543(Harlan, J., dissenting).Page 859As we described inCarey v. Population Services International, supra, the liberty which encompasses those decisions
"includes `the interest in independence in making certain kinds of important decisions.' While the outer limits of this aspect of [protected liberty] have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions `relating to marriage, procreation, contraception, family relationships, and childrearing and education.'"431 U.S., at 684-685(citations omitted).
The soundness of this prong of theRoeanalysis is apparent from a consideration of the alternative. If indeed the woman's interest in deciding whether to bear and beget a child had not been recognized as inRoe, the State might as readily restrict a woman's right to choose to carry a pregnancy to term as to terminate it, to further asserted state interests in population control, or eugenics, for example. YetRoehas been sensibly relied upon to counter any such suggestions.E.g., Arnold v. Board of Education of Escambia County, Ala.,880 F.2d 305,311(CA11 1989) (relying uponRoeand concluding that government officials violate the Constitution by coercing a minor to have an abortion);Avery v. County of Burke,660 F.2d 111,115(CA4 1981) (county agency inducing teenage girl to undergo unwanted sterilization on the basis of misrepresentation that she had sickle cell trait); see alsoIn re Quinlan,70 N.J. 10,355 A.2d 647(relying onRoein finding a right to terminate medical treatment, cert. denied sub nom.Garger v. New Jersey,429 U.S. 922(1976)). In any event, becauseRoe'sscope is confined by the fact of its concern with postconception potential life, a concern otherwise likely to be implicated only by some forms of contraception protected independently underGriswoldand later cases, any error inRoeis unlikely to have serious ramifications in future cases.Page 860
4
We have seen how time has overtaken some ofRoe'sfactual assumptions: advances in maternal health care allow for abortions safe to the mother later in pregnancy than was true in 1973, seeAkron I, supra, at 429, n. 11, and advances in neonatal care have advanced viability to a point somewhat earlier.Compare Roe,410 U.S., at 160,with Webster,supra, at 515-516 (opinion of REHNQUIST, C.J.); seeAkron I,462 U.S., at 457, and n. 5 (O'CONNOR, J., dissenting). But these facts go only to the scheme of time limits on the realization of competing interests, and the divergences from the factual premises of 1973 have no bearing on the validity ofRoe'scentral holding, that viability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions. The soundness or unsoundness of that constitutional judgment in no sense turns on whether viability occurs at approximately 28 weeks, as was usual at the time ofRoe, at 23 to 24 weeks, as it sometimes does today, or at some moment even slightly earlier in pregnancy, as it may if fetal respiratory capacity can somehow be enhanced in the future. Whenever it may occur, the attainment of viability may continue to serve as the critical fact, just as it has done sinceRoewas decided; which is to say that no change inRoe'sfactual underpinning has left its central holding obsolete, and none supports an argument for overruling it.
5
The sum of the precedential enquiry to this point showsRoe'sunderpinnings unweakened in any way affecting its central holding. While it has engendered disapproval, it has not been unworkable. An entire generation has come of age free to assumeRoe'sconcept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has leftRoe'scentral holding a doctrinal remnant;Page 861Roeportends no developments at odds with other precedent for the analysis of personal liberty; and no changes of fact have rendered viability more or less appropriate as the point at which the balance of interests tips. Within the bounds of normalstare decisisanalysis, then, and subject to the considerations on which it customarily turns, the stronger argument is for affirmingRoe'scentral holding, with whatever degree of personal reluctance any of us may have, not for overruling it.
B
In a less significant case,stare decisisanalysis could, and would, stop at the point we have reached. But the sustained and widespread debateRoehas provoked calls for some comparison between that case and others of comparable dimension that have responded to national controversies and taken on the impress of the controversies addressed. Only two such decisional lines from the past century present themselves for examination, and in each instance the result reached by the Court accorded with the principles we apply today.
The first example is that line of cases identified withLochner v. NewYork,198 U.S. 45(1905), which imposed substantive limitations on legislation limiting economic autonomy in favor of health and welfare regulation, adopting, in Justice Holmes's view, the theory of laissez-faire.Id., at 75 (dissenting opinion). TheLochnerdecisions were exemplified byAdkins v. Children's Hospital of Districtof Columbia,261 U.S. 525(1923), in which this Court held it to be an infringement of constitutionally protected liberty of contract to require the employers of adult women to satisfy minimum wage standards. Fourteen years later,West Coast Hotel Co. v. Parrish,300 U.S. 379(1937), signaled the demise ofLochnerby overrulingAdkins. In the meantime, the Depression had come and, with it, the lesson that seemed unmistakable to most people by 1937, that the interpretation of contractual freedom protected inAdkinsrested on fundamentally false factual assumptionsPage 862about the capacity of a relatively unregulated market to satisfy minimal levels of human welfare. SeeWest Coast Hotel Co.,supra, at 399. As Justice Jackson wrote of the constitutional crisis of 1937 shortly before he came on the bench: "The older world of laissez-faire was recognized everywhere outside the Court to be dead." The Struggle for Judicial Supremacy 85 (1941). The facts upon which the earlier case had premised a constitutional resolution of social controversy had proven to be untrue, and history's demonstration of their untruth not only justified but required the new choice of constitutional principle thatWest CoastHotelannounced. Of course, it was true that the Court lost something by its misperception, or its lack of prescience, and the Court-packing crisis only magnified the loss; but the clear demonstration that the facts of economic life were different from those previously assumed warranted the repudiation of the old law.
The second comparison that 20th century history invites is with the cases employing the separate-but-equal rule for applying theFourteenthAmendment's equal protection guarantee. They began withPlessy v.Ferguson,163 U.S. 537(1896), holding that legislatively mandated racial segregation in public transportation works no denial of equal protection, rejecting the argument that racial separation enforced by the legal machinery of American society treats the black race as inferior. ThePlessyCourt considered the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.Id., at 551. Whether, as a matter of historical fact, the Justices in thePlessymajority believed this or not, seeid., 557, 562 (Harlan, J., dissenting), this understanding of the implication of segregation was the stated justification for the Court's opinion. But this understanding ofPage 863the facts and the rule it was stated to justify were repudiated inBrown v. Board of Education,347 U.S. 483(1954) (Brown I). As one commentator observed, the question before the Court inBrownwas whether discrimination inheres in that segregation which is imposed by law in the twentieth century in certain specific states in the American Union. And that question has meaning, and can find an answer only on the ground of history and of common knowledge about the facts of life in the times and places aforesaid. Black, The Lawfulness of the Segregation Decisions, 69 Yale L.J. 421, 427 (1960).
The Court inBrownaddressed these facts of life by observing that whatever may have been the understanding inPlessy'stime of the power of segregation to stigmatize those who were segregated with a "badge of inferiority," it was clear by 1954 that legally sanctioned segregation had just such an effect, to the point that racially separate public educational facilities were deemed inherently unequal. 347 U.S., at, 494-495. Society's understanding of the facts upon which a constitutional ruling was sought in 1954 was thus fundamentally different from the basis claimed for the decision in 1896. While we thinkPlessywas wrong the day it was decided, seePlessy, supra, at 552-564 (Harlan, J., dissenting), we must also recognize that thePlessyCourt's explanation for its decision was so clearly at odds with the facts apparent to the Court in 1954 that the decision to reexaminePlessywas, on this ground alone, not only justified but required.West Coast HotelandBrowneach rested on facts, or an understanding of facts, changed from those which furnished the claimed justifications for the earlier constitutional resolutions. Each case was comprehensible as the Court's response to facts that the country could understand, or had come to understand already, but which the Court of an earlier day, as its own declarations disclosed, had not been able to perceive. As the decisions were thus comprehensible, they were alsoPage 864defensible, not merely as the victories of one doctrinal school over another by dint of numbers (victories though they were), but as applications of constitutional principle to facts as they had not been seen by the Court before. In constitutional adjudication, as elsewhere in life, changed circumstances may impose new obligations, and the thoughtful part of the Nation could accept each decision to overrule a prior case as a response to the Court's constitutional duty.
Because the cases before us present no such occasion, it could be seen as no such response. Because neither the factual underpinnings ofRoe'scentral holding nor our understanding of it has changed (and because no other indication of weakened precedent has been shown), the Court could not pretend to be reexamining the prior law with any justification beyond a present doctrinal disposition to come out differently from the Court of 1973. To overrule prior law for no other reason than that would run counter to the view, repeated in our cases, that a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided. See,e.g.,Mitchell v. W.T. Grant Co.,416 U.S. 600,636(1974) (Stewart, J., dissenting) ("A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the Government. No misconception could do more lasting injury to this Court, and to the system of law which it is our abiding mission to serve");Mapp v. Ohio,367 U.S. 643,677(1961) (Harlan, J., dissenting).
C
The examination of the conditions justifying the repudiation ofAdkinsbyWest Coast HotelandPlessybyBrownis enough to suggest the terrible price that would have been paid if the Court had not overruled as it did. In the present cases, however, as our analysis to this point makes clear, the terrible price would be paid for overruling. Our analysisPage 865would not be complete, however, without explaining why overrulingRoe'scentral holding would not only reach an unjustifiable result under principles ofstare decisis, but would seriously weaken the Court's capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law. To understand why this would be so, it is necessary to understand the source of this Court's authority, the conditions necessary for its preservation, and its relationship to the country's understanding of itself as a constitutional Republic.
The root of American governmental power is revealed most clearly in the instance of the power conferred by the Constitution upon the Judiciary of the United States, and specifically upon this Court. As Americans of each succeeding generation are rightly told, the Court cannot buy support for its decisions by spending money, and, except to a minor degree, it cannot independently coerce obedience to its decrees. The Court's power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the Judiciary as fit to determine what the Nation's law means, and to declare what it demands.
The underlying substance of this legitimacy is of course the warrant for the Court's decisions in the Constitution and the lesser sources of legal principle on which the Court draws. That substance is expressed in the Court's opinions, and our contemporary understanding is such that a decision without principled justification would be no judicial act at all. But even when justification is furnished by apposite legal principle, something more is required. Because not every conscientious claim of principled justification will be accepted as such, the justification claimed must be beyond dispute. The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make.Page 866Thus, the Court's legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation.
The need for principled action to be perceived as such is implicated to some degree whenever this, or any other appellate court, overrules a prior case. This is not to say, of course, that this Court cannot give a perfectly satisfactory explanation in most cases. People understand that some of the Constitution's language is hard to fathom, and that the Court's Justices are sometimes able to perceive significant facts or to understand principles of law that eluded their predecessors and that justify departures from existing decisions. However upsetting it may be to those most directly affected when one judicially derived rule replaces another, the country can accept some correction of error without necessarily questioning the legitimacy of the Court.
In two circumstances, however, the Court would almost certainly fail to receive the benefit of the doubt in overruling prior cases. There is, first, a point beyond which frequent overruling would overtax the country's belief in the Court's good faith. Despite the variety of reasons that may inform and justify a decision to overrule, we cannot forget that such a decision is usually perceived (and perceived correctly) as, at the least, a statement that a prior decision was wrong. There is a limit to the amount of error that can plausibly be imputed to prior Courts. If that limit should be exceeded, disturbance of prior rulings would be taken as evidence that justifiable reexamination of principle had given way to drives for particular results in the short term. The legitimacy of the Court would fade with the frequency of its vacillation.
That first circumstance can be described as hypothetical; the second is to the point here and now. Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected inRoeand those rare,Page 867comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.
The Court is not asked to do this very often, having thus addressed the Nation only twice in our lifetime, in the decisions ofBrownandRoe. But when the Court does act in this way, its decision requires an equally rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation. Some of those efforts may be mere unprincipled emotional reactions; others may proceed from principles worthy of profound respect. But whatever the premises of opposition may be, only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question. Cf.Brown v. Board of Education,349 U.S. 294,300(1955) (Brown II) ("[I]t should go without saying that the vitality of th[e] constitutional principles [announced inBrown I,] cannot be allowed to yield simply because of disagreement with them").
The country's loss of confidence in the Judiciary would be underscored by an equally certain and equally reasonable condemnation for another failing in overruling unnecessarily and under pressure. Some cost will be paid by anyone who approves or implements a constitutional decision where it is unpopular, or who refuses to work to undermine the decision or to force its reversal. The price may be criticism or ostracism, or it may be violence. An extra price will be paid by those who themselves disapprove of the decision's resultsPage 868when viewed outside of constitutional terms, but who nevertheless struggle to accept it, because they respect the rule of law. To all those who will be so tested by following, the Court implicitly undertakes to remain steadfast, lest in the end a price be paid for nothing. The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete. From the obligation of this promise, this Court cannot and should not assume any exemption when duty requires it to decide a case in conformance with the Constitution. A willing breach of it would be nothing less than a breach of faith, and no Court that broke its faith with the people could sensibly expect credit for principle in the decision by which it did that.
It is true that diminished legitimacy may be restored, but only slowly. Unlike the political branches, a Court thus weakened could not seek to regain its position with a new mandate from the voters, and even if the Court could somehow go to the polls, the loss of its principled character could not be retrieved by the casting of so many votes. Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court's legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court's concern with legitimacy is not for the sake of the Court, but for the sake of the Nation to which it is responsible.
The Court's duty in the present cases is clear. In 1973, it confronted the already-divisive issue of governmental power to limit personalPage 869choice to undergo abortion, for which it provided a new resolution based on the due process guaranteed by theFourteenthAmendment. Whether or not a new social consensus is developing on that issue, its divisiveness is no less today than in 1973, and pressure to overrule the decision, like pressure to retain it, has grown only more intense. A decision to overruleRoe'sessential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy, and to the Nation's commitment to the rule of law. It is therefore imperative to adhere to the essence ofRoe'soriginal decision, and we do so today.
IV
From what we have said so far, it follows that it is a constitutional liberty of the woman to have some freedom to terminate her pregnancy. We conclude that the basic decision inRoewas based on a constitutional analysis which we cannot now repudiate. The woman's liberty is not so unlimited, however, that, from the outset, the State cannot show its concern for the life of the unborn and, at a later point in fetal development, the State's interest in life has sufficient force so that the right of the woman to terminate the pregnancy can be restricted.
That brings us, of course, to the point where much criticism has been directed atRoe, a criticism that always inheres when the Court draws a specific rule from what in the Constitution is but a general standard. We conclude, however, that the urgent claims of the woman to retain the ultimate control over her destiny and her body, claims implicit in the meaning of liberty, require us to perform that function. Liberty must not be extinguished for want of a line that is clear. And it falls to us to give some real substance to the woman's liberty to determine whether to carry her pregnancy to full term.Page 870
We conclude the line should be drawn at viability, so that, before that time, the woman has a right to choose to terminate her pregnancy. We adhere to this principle for two reasons. First, as we have said, is the doctrine ofstare decisis. Any judicial act of line-drawing may seem somewhat arbitrary, butRoewas a reasoned statement, elaborated with great care. We have twice reaffirmed it in the face of great opposition. SeeThornburgh v. American College ofObstetricians and Gynecologists,476 U.S., at 759;Akron I,462 U.S., at 419-420. Although we must overrule those parts ofThornburghandAkron Iwhich, in our view, are inconsistent withRoe'sstatement that the State has a legitimate interest in promoting the life or potential life of the unborn, seeinfra, at 882-883, the central premise of those cases represents an unbroken commitment by this Court to the essential holding ofRoe. It is that premise which we reaffirm today.
The second reason is that the concept of viability, as we noted inRoe, is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can, in reason and all fairness, be the object of state protection that now overrides the rights of the woman. SeeRoe v. Wade,410 U.S., at 163. Consistent with other constitutional norms, legislatures may draw lines which appear arbitrary without the necessity of offering a justification. But courts may not. We must justify the lines we draw. And there is no line other than viability which is more workable. To be sure, as we have said, there may be some medical developments that affect the precise point of viability, seesupra, at 860, but this is an imprecision within tolerable limits, given that the medical community and all those who must apply its discoveries will continue to explore the matter. The viability line also has, as a practical matter, an element of fairness. In some broad sense, it might be said that a woman who fails to act before viability has consented to the State's intervention on behalf of the developing child.Page 871
The woman's right to terminate her pregnancy before viability is the most central principle ofRoe v. Wade. It is a rule of law and a component of liberty we cannot renounce.
On the other side of the equation is the interest of the State in the protection of potential life. TheRoeCourt recognized the State's "important and legitimate interest in protecting the potentiality of human life."Roe, supra, at 162. The weight to be given this state interest, not the strength of the woman's interest, was the difficult question faced inRoe. We do not need to say whether each of us, had we been Members of the Court when the valuation of the state interest came before it as an original matter, would have concluded, as theRoeCourt did, that its weight is insufficient to justify a ban on abortions prior to viability even when it is subject to certain exceptions. The matter is not before us in the first instance, and, coming as it does after nearly 20 years of litigation inRoe'swake we are satisfied that the immediate question is not the soundness ofRoe'sresolution of the issue, but the precedential force that must be accorded to its holding. And we have concluded that the essential holding ofRoeshould be reaffirmed.
Yet it must be remembered thatRoe v. Wadespeaks with clarity in establishing not only the woman's liberty but also the State's "important and legitimate interest in potential life."Roe, supra, at 163. That portion of the decision inRoehas been given too little acknowledgment and implementation by the Court in its subsequent cases. Those cases decided that any regulation touching upon the abortion decision must survive strict scrutiny, to be sustained only if drawn in narrow terms to further a compelling state interest. See,e.g., Akron I, supra, at 427. Not all of the cases decided under that formulation can be reconciled with the holding inRoeitself that the State has legitimate interests in the health of the woman and in protecting the potential life within her. In resolving this tension, we choose to rely uponRoe, as against the later cases.Page 872Roeestablished a trimester framework to govern abortion regulations. Under this elaborate but rigid construct, almost no regulation at all is permitted during the first trimester of pregnancy; regulations designed to protect the woman's health, but not to further the State's interest in potential life, are permitted during the second trimester; and, during the third trimester, when the fetus is viable, prohibitions are permitted provided the life or health of the mother is not at stake.Roe, supra, at 163-166. Most of our cases sinceRoehave involved the application of rules derived from the trimester framework. See,e.g., Thornburgh v. American College ofObstetricians and Gynecologists, supra; Akron I, supra.
The trimester framework no doubt was erected to ensure that the woman's right to choose not become so subordinate to the State's interest in promoting fetal life that her choice exists in theory, but not in fact. We do not agree, however, that the trimester approach is necessary to accomplish this objective. A framework of this rigidity was unnecessary, and, in its later interpretation, sometimes contradicted the State's permissible exercise of its powers.
Though the woman has a right to choose to terminate or continue her pregnancy before viability, it does not at all follow that the State is prohibited from taking steps to ensure that this choice is thoughtful and informed. Even in the earliest stages of pregnancy, the State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term, and that there are procedures and institutions to allow adoption of unwanted children as well as a certain degree of state assistance if the mother chooses to raise the child herself. "`[T]he Constitution does not forbid a State or city, pursuant to democratic processes, from expressing a preference for normal childbirth.'"Webster v. Reproductive Health Services,492 U.S., at 511(opinion ofPage 873the Court) (quotingPoelker v. Doe,432 U.S. 519,521(1977)). It follows 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. This, too, we find consistent withRoe'scentral premises, and indeed the inevitable consequence of our holding that the State has an interest in protecting the life of the unborn.
We reject the trimester framework, which we do not consider to be part of the essential holding ofRoe. SeeWebster v. Reproductive HealthServices,492 U.S. at 518(opinion of REHNQUIST, C.J.);id., at 529 (O'CONNOR, J., concurring in part and concurring in judgment) (describing the trimester framework as "problematic"). Measures aimed at ensuring that a woman's choice contemplates the consequences for the fetus do not necessarily interfere with the right recognized inRoe, although those measures have been found to be inconsistent with the rigid trimester framework announced in that case. A logical reading of the central holding inRoeitself, and a necessary reconciliation of the liberty of the woman and the interest of the State in promoting prenatal life, require, in our view, that we abandon the trimester framework as a rigid prohibition on all pre-viability regulation aimed at the protection of fetal life. The trimester framework suffers from these basic flaws: in its formulation, it misconceives the nature of the pregnant woman's interest; and in practice, it undervalues the State's interest in potential life, as recognized inRoe.
As our jurisprudence relating to all liberties save perhaps abortion has recognized, not every law which makes a right more difficult to exercise is,ipso facto, an infringement of that right. An example clarifies the point. We have held that not every ballot access limitation amounts to an infringement of the right to vote. Rather, the States are granted substantial flexibility in establishing the framework within which voters choose the candidates for whom theyPage 874wish to vote.Anderson v. Celebrezze,460 U.S. 780,788(1983);Norman v.Reed,502 U.S. 279(1992).
The abortion right is similar. Numerous forms of state regulation might have the incidental effect of increasing the cost or decreasing the availability of medical care, whether for abortion or any other medical procedure. The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it. Only where state regulation imposes an undue burden on a woman's ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause. SeeHodgson v. Minnesota,497 U.S. 417,458-459(1990) (O'CONNOR, J., concurring in part and concurring in judgment in part);Ohio v. AkronCenter for Reproductive Health,497 U.S. 502,519-520; (1990) (AkronII) (opinion of KENNEDY, J.);Webster v. Reproductive HealthServices, supra, at 530 (O'CONNOR, J., concurring in part and concurring in judgment);Thornburgh v. American College ofObstetricians and Gynecologists,476 U.S., at 828(O'CONNOR, J., dissenting);Simopoulos v. Virginia,462 U.S. 506,520(1983) (O'CONNOR, J., concurring in part and concurring in judgment);Planned Parenthood Assn. of Kansas City Mo., Inc. v. Ashcroft,462 U.S. 476,505(1983) (O'CONNOR, J., concurring in judgment in part and dissenting in part);Akron I,462 U.S., at 464(O'CONNOR, J., joined by WHITE and REHNQUIST, JJ., dissenting);Bellotti v. Baird,428 U.S. 132,147(1976) (Bellotti I).
For the most part, the Court's early abortion cases adhered to this view. InMaher v. Roe,432 U.S. 464,473-474(1977), the Court explained:Roedid not declare an unqualified "constitutional right to an abortion," as the District Court seemed to think. Rather, the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy. See alsoPage 875Doe v. Bolton,410 U.S. 179,198(1973) ("[T]he interposition of the hospital abortion committee is unduly restrictive of the patient's rights");Bellotti I, supra, at 147 (State may not "impose undue burdens upon a minor capable of giving an informed consent");Harris v. McRae,448 U.S. 297,314(1980) (citingMaher, supra,). Cf.Carey v. Population Services International,431 U.S., at 688("[T]he same test must be applied to state regulations that burden an individual's right to decide to prevent conception or terminate pregnancy by substantially limiting access to the means of effectuating that decision as is applied to state statutes that prohibit the decision entirely").
These considerations of the nature of the abortion right illustrate that it is an overstatement to describe it as a right to decide whether to have an abortion "without interference from the State."PlannedParenthood of Central Mo. v. Danforth,428 U.S. 52,61(1976). All abortion regulations interfere to some degree with a woman's ability to decide whether to terminate her pregnancy. It is, as a consequence, not surprising that, despite the protestations contained in the originalRoeopinion to the effect that the Court was not recognizing an absolute right,410 U.S., at 154-155, the Court's experience applying the trimester framework has led to the striking down of some abortion regulations which in no real sense deprived women of the ultimate decision. Those decisions went too far, because the right recognized byRoeis a right to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.Eisenstadt v. Baird,405 U.S., at 453. Not all governmental intrusion is, of necessity, unwarranted, and that brings us to the other basic flaw in the trimester framework: even inRoe'sterms, in practice, it undervalues the State's interest in the potential life within the woman.Roe v. Wadewas express in its recognition of the State's important and legitimate interest[s] in preserving and protectingPage 876the health of the pregnant woman [and] in protecting the potentiality of human life.410 U.S., at 162. The trimester framework, however, does not fulfillRoe'sown promise that the State has an interest in protecting fetal life or potential life.Roebegan the contradiction by using the trimester framework to forbid any regulation of abortion designed to advance that interest before viability.Id., at 163. Before viability,Roeand subsequent cases treat all governmental attempts to influence a woman's decision on behalf of the potential life within her as unwarranted. This treatment is, in our judgment, incompatible with the recognition that there is a substantial state interest in potential life throughout pregnancy. Cf.Webster,492 U.S., at 519(opinion of REHNQUIST, C.J.);AkronI, supra, at 461 (O'CONNOR, J., dissenting).
The very notion that the State has a substantial interest in potential life leads to the conclusion that not all regulations must be deemed unwarranted. Not all burdens on the right to decide whether to terminate a pregnancy will be undue. In our view, the undue burden standard is the appropriate means of reconciling the State's interest with the woman's constitutionally protected liberty.
The concept of an undue burden has been utilized by the Court as well as individual Members of the Court, including two of us, in ways that could be considered inconsistent. See,e.g., Hodgson v. Minnesota,supra, 459-461 (O'CONNOR, J., concurring in part and concurring in judgment);Akron II, supraat 519-520 (opinion of KENNEDY, J.);Thornburgh v. American College of Obstetricians and Gynecologists,supraat 828-829 (O'CONNOR, J., dissenting);Akron I, supra, at 461-466 (O'CONNOR, J., dissenting);Harris v. McRae, supra, at 314;Maher v. Roe, supra, at 473;Beal v. Doe,432 U.S. 438,446(1977);Bellotti I, supra, at 147. Because we set forth a standard of general application to which we intend to adhere, it is important to clarify what is meant by an undue burden.Page 877
A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it. And a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends. To the extent that the opinions of the Court or of individual Justices use the undue burden standard in a manner that is inconsistent with this analysis, we set out what, in our view, should be the controlling standard. Cf.McCleskey v. Zant,499 U.S. 467,489(1991) (attempting "to define the doctrine of abuse of the writ with more precision" after acknowledging tension among earlier cases). In our considered judgment, an undue burden is an unconstitutional burden. SeeAkron II,497 U.S., at 519-520(opinion of KENNEDY, J.). Understood another way, we answer the question, left open in previous opinions discussing the undue burden formulation, whether a law designed to further the State's interest in fetal life which imposes an undue burden on the woman's decision before fetal viability could be constitutional. See,e.g., Akron I,462 U.S. at 462-463(O'CONNOR, J., dissenting). The answer is no.
Some guiding principles should emerge. What is at stake is the woman's right to make the ultimate decision, not a right to be insulated from all others in doing so. Regulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose. Seeinfra, at 899-900 (addressing Pennsylvania's parental consent requirement).Page 878Unless it has that effect on her right of choice, a state measure designed to persuade her to choose childbirth over abortion will be upheld if reasonably related to that goal. Regulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue burden.
Even when jurists reason from shared premises, some disagreement is inevitable.Compare Hodgson,497 U.S., at 482-497(KENNEDY, J., concurring in judgment in part and dissenting in part)with id., at 458-460 (O'CONNOR, J., concurring in part and concurring in judgment in part). That is to be expected in the application of any legal standard which must accommodate life's complexity. We do not expect it to be otherwise with respect to the undue burden standard. We give this summary:
(a) To protect the central right recognized byRoe v. Wadewhile at the same time accommodating the State's profound interest in potential life, we will employ the undue burden analysis as explained in this opinion. An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.
(b) We reject the rigid trimester framework ofRoe v. Wade. To promote the State's profound interest in potential life, throughout pregnancy, the State may take measures to ensure that the woman's choice is informed, and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion. These measures must not be an undue burden on the right.
(c) As with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an abortion. Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.Page 879
(d) Our adoption of the undue burden analysis does not disturb the central holding ofRoe v. Wade, and we reaffirm that holding. Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.
(e) We also reaffirmRoe'sholding that, subsequent to viability, the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.Roe v. Wade,410 U.S., at 164-165.
These principles control our assessment of the Pennsylvania statute, and we now turn to the issue of the validity of its challenged provisions.
V
The Court of Appeals applied what it believed to be the undue burden standard, and upheld each of the provisions except for the husband notification requirement. We agree generally with this conclusion, but refine the undue burden analysis in accordance with the principles articulated above. We now consider the separate statutory sections at issue.
A
Because it is central to the operation of various other requirements, we begin with the statute's definition of medical emergency. Under the statute, a medical emergency is
[t]hat condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function. 18 Pa. Cons. Stat. § 3203 (1990).Page 880
Petitioners argue that the definition is too narrow, contending that it forecloses the possibility of an immediate abortion despite some significant health risks. If the contention were correct, we would be required to invalidate the restrictive operation of the provision, for the essential holding ofRoeforbids a State to interfere with a woman's choice to undergo an abortion procedure if continuing her pregnancy would constitute a threat to her health.410 U.S., at 164. See alsoHarris v. McRae,448 U.S., at 316.
The District Court found that there were three serious conditions which would not be covered by the statute: preeclampsia, inevitable abortion, and premature ruptured membrane.744 F. Supp., at 1378. Yet, as the Court of Appeals observed,947 F.2d, at 700-701, it is undisputed that, under some circumstances, each of these conditions could lead to an illness with substantial and irreversible consequences. While the definition could be interpreted in an unconstitutional manner, the Court of Appeals construed the phrase "serious risk" to include those circumstances.Id., at 701. It stated: "[W]e read the medical emergency exception as intended by the Pennsylvania legislature to assure that compliance with its abortion regulations would not in any way pose a significant threat to the life or health of a woman."Ibid. As we said inBrockett v. Spokane Arcades, Inc.,472 U.S. 491,499-500(1985): "Normally, . . . we defer to the construction of a state statute given it by the lower federal courts." Indeed, we have said that we will defer to lower court interpretations of state law unless they amount to "plain" error.Palmer v. Hoffman,318 U.S. 109,118(1943). This "reflect[s] our belief that district courts and courts of appeals are better schooled in, and more able to interpret, the laws of their respective States."Frisby v. Schultz,487 U.S. 474,482(1988) (citation omitted). We adhere to that course today, and conclude that, as construed by the Court of Appeals, the medical emergency definition imposes no undue burden on a woman's abortion right.Page 881
B
We next consider the informed consent requirement. 18 Pa. Cons. Stat. § 3205 (1990). Except in a medical emergency, the statute requires that at least 24 hours before performing an abortion a physician inform the woman of the nature of the procedure, the health risks of the abortion and of childbirth, and the "probable gestational age of the unborn child." The physician or a qualified nonphysician must inform the woman of the availability of printed materials published by the State describing the fetus and providing information about medical assistance for childbirth, information about child support from the father, and a list of agencies which provide adoption and other services as alternatives to abortion. An abortion may not be performed unless the woman certifies in writing that she has been informed of the availability of these printed materials and has been provided them if she chooses to view them.
Our prior decisions establish that, as with any medical procedure, the State may require a woman to give her written informed consent to an abortion. SeePlanned Parenthood of Central Mo. v. Danforth,428 U.S., at 67. In this respect, the statute is unexceptional. Petitioners challenge the statute's definition of informed consent because it includes the provision of specific information by the doctor and the mandatory 24-hour waiting period. The conclusions reached by a majority of the Justices in the separate opinions filed today and the undue burden standard adopted in this opinion require us to overrule in part some of the Court's past decisions, decisions driven by the trimester framework's prohibition of all pre-viability regulations designed to further the State's interest in fetal life.
InAkron I,462 U.S. 416, we invalidated an ordinance which required that a woman seeking an abortion be provided by her physician with specific information "designed to influence the woman's informed choice between abortion or childbirth."Id., at 444. As we later describedPage 882theAkron Iholding inThornburgh v. American College of Obstetriciansand Gynecologists,476 U.S., at 762, there were two purported flaws in the Akron ordinance: the information was designed to dissuade the woman from having an abortion, and the ordinance imposed "a rigid requirement that a specific body of information be given in all cases, irrespective of the particular needs of the patient. . . ."Ibid.
To the extentAkron IandThornburghfind a constitutional violation when the government requires, as it does here, the giving of truthful, nonmisleading information about the nature of the procedure, the attendant health risks and those of childbirth, and the "probable gestational age" of the fetus, those cases go too far, are inconsistent withRoe'sacknowledgment of an important interest in potential life, and are overruled. This is clear even on the very terms ofAkron IandThornburgh. Those decisions, along withDanforth, recognize a substantial government interest justifying a requirement that a woman be apprised of the health risks of abortion and childbirth.E.g.,Danforth, supra, at 66-67. It cannot be questioned that psychological wellbeing is a facet of health. Nor can it be doubted that most women considering an abortion would deem the impact on the fetus relevant, if not dispositive, to the decision. In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed. If the information the State requires to be made available to the woman is truthful and not misleading, the requirement may be permissible.
We also see no reason why the State may not require doctors to inform a woman seeking an abortion of the availability of materials relating to the consequences to the fetus, even when those consequences have no direct relation to her health. An example illustrates the point. We would thinkPage 883it constitutional for the State to require that, in order for there to be informed consent to a kidney transplant operation, the recipient must be supplied with information about risks to the donor as well as risks to himself or herself. A requirement that the physician make available information similar to that mandated by the statute here was described inThornburghas 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.476 U.S., at 762. We conclude, however, that informed choice need not be defined in such narrow terms that all considerations of the effect on the fetus are made irrelevant. As we have made clear, we depart from the holdings ofAkron IandThornburghto the extent that we permit a State to further its legitimate goal of protecting the life of the unborn by enacting legislation aimed at ensuring a decision that is mature and informed, even when, in so doing, the State expresses a preference for childbirth over abortion. In short, requiring that the woman be informed of the availability of information relating to fetal development and the assistance available should she decide to carry the pregnancy to full term is a reasonable measure to ensure an informed choice, one which might cause the woman to choose childbirth over abortion. This requirement cannot be considered a substantial obstacle to obtaining an abortion, and, it follows, there is no undue burden.
Our prior cases also suggest that the "straitjacket,"Thornburgh,supra, at 762 (quotingDanforth, supra, at 67, n. 8), of particular information which must be given in each case interferes with a constitutional right of privacy between a pregnant woman and her physician. As a preliminary matter, it is worth noting that the statute now before us does not require a physician to comply with the informed consent provisions if he or she can demonstrate by a preponderance of the evidence that he or she reasonably believed that furnishing the information would have resulted in a severelyPage 884adverse effect on the physical or mental health of the patient. 18 Pa. Cons. Stat. § 3205 (1990). In this respect, the statute does not prevent the physician from exercising his or her medical judgment.
Whatever constitutional status the doctor-patient relation may have as a general matter, in the present context, it is derivative of the woman's position. The doctor-patient relation does not underlie or override the two more general rights under which the abortion right is justified: the right to make family decisions and the right to physical autonomy. On its own, the doctor-patient relation here is entitled to the same solicitude it receives in other contexts. Thus, a requirement that a doctor give a woman certain information as part of obtaining her consent to an abortion is, for constitutional purposes, no different from a requirement that a doctor give certain specific information about any medical procedure.
All that is left of petitioners' argument is an assertedFirstAmendment right of a physician not to provide information about the risks of abortion, and childbirth, in a manner mandated by the State. To be sure, the physician'sFirstAmendment rights not to speak are implicated, seeWooley v. Maynard,430 U.S. 705(1977), but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State cf.Whalen v. Roe,429 U.S. 589,603(1977). We see no constitutional infirmity in the requirement that the physician provide the information mandated by the State here.
The Pennsylvania statute also requires us to reconsider the holding inAkron Ithat the State may not require that a physician, as opposed to a qualified assistant, provide information relevant to a woman's informed consent.462 U.S., at 448. Since there is no evidence on this record that requiring a doctor to give the information as provided by the statute would amount, in practical terms, to a substantial obstacle to a woman seeking an abortion, we conclude that it is not an unduePage 885burden. Our cases reflect the fact that the Constitution gives the States broad latitude to decide that particular functions may be performed only by licensed professionals, even if an objective assessment might suggest that those same tasks could be performed by others. SeeWilliamson v. Lee Optical of Okla., Inc.,348 U.S. 483(1955). Thus, we uphold the provision as a reasonable means to ensure that the woman's consent is informed.
Our analysis of Pennsylvania's 24-hour waiting period between the provision of the information deemed necessary to informed consent and the performance of an abortion under the undue burden standard requires us to reconsider the premise behind the decision inAkron Iinvalidating a parallel requirement. InAkron Iwe said: Nor are we convinced that the State's legitimate concern that the woman's decision be informed is reasonably served by requiring a 24-hour delay as a matter of course.462 U.S., at 450. We consider that conclusion to be wrong. The idea that important decisions will be more informed and deliberate if they follow some period of reflection does not strike us as unreasonable, particularly where the statute directs that important information become part of the background of the decision. The statute, as construed by the Court of Appeals, permits avoidance of the waiting period in the event of a medical emergency, and the record evidence shows that, in the vast majority of cases, a 24-hour delay does not create any appreciable health risk. In theory, at least, the waiting period is a reasonable measure to implement the State's interest in protecting the life of the unborn, a measure that does not amount to an undue burden.
Whether the mandatory 24-hour waiting period is nonetheless invalid because, in practice, it is a substantial obstacle to a woman's choice to terminate her pregnancy is a closer question. The findings of fact by the District Court indicate that, because of the distances many women must travel to reach an abortion provider, the practical effectPage 886will often be a delay of much more than a day because the waiting period requires that a woman seeking an abortion make at least two visits to the doctor. The District Court also found that, in many instances, this will increase the exposure of women seeking abortions to "the harassment and hostility of anti-abortion protestors demonstrating outside a clinic."744 F. Supp., at 1351. As a result, the District Court found that, for those women who have the fewest financial resources, those who must travel long distances, and those who have difficulty explaining their whereabouts to husbands, employers, or others, the 24-hour waiting period will be "particularly burdensome."Id., at 1352.
These findings are troubling in some respects, but they do not demonstrate that the waiting period constitutes an undue burden. We do not doubt that, as the District Court held, the waiting period has the effect of "increasing the cost and risk of delay of abortions,"id., at 1378, but the District Court did not conclude that the increased costs and potential delays amount to substantial obstacles. Rather, applying the trimester framework's strict prohibition of all regulation designed to promote the State's interest in potential life before viability, seeid., at 1374, the District Court concluded that the waiting period does not further the state "interest in maternal health" and "infringes the physician's discretion to exercise sound medical judgment,"id., at 1378. Yet, as we have stated, under the undue burden standard, a State is permitted to enact persuasive measures which favor childbirth over abortion, even if those measures do not further a health interest. And while the waiting period does limit a physician's discretion, that is not, standing alone, a reason to invalidate it. In light of the construction given the statute's definition of medical emergency by the Court of Appeals, and the District Court's findings, we cannot say that the waiting period imposes a real health risk.
We also disagree with the District Court's conclusion that the "particularly burdensome" effects of the waiting period on some womenPage 887require its invalidation. A particular burden is not, of necessity, a substantial obstacle. Whether a burden falls on a particular group is a distinct inquiry from whether it is a substantial obstacle even as to the women in that group. And the District Court did not conclude that the waiting period is such an obstacle even for the women who are most burdened by it. Hence, on the record before us, and in the context of this facial challenge, we are not convinced that the 24-hour waiting period constitutes an undue burden.
We are left with the argument that the various aspects of the informed consent requirement are unconstitutional because they place barriers in the way of abortion on demand. Even the broadest reading ofRoe, however, has not suggested that there is a constitutional right to abortion on demand. See,e.g., Doe v. Bolton,410 U.S., at 189. Rather, the right protected byRoeis a right to decide to terminate a pregnancy free of undue interference by the State. Because the informed consent requirement facilitates the wise exercise of that right, it cannot be classified as an interference with the rightRoeprotects. The informed consent requirement is not an undue burden on that right.
C
Section 3209 of Pennsylvania's abortion law provides, except in cases of medical emergency, that no physician shall perform an abortion on a married woman without receiving a signed statement from the woman that she has notified her spouse that she is about to undergo an abortion. The woman has the option of providing an alternative signed statement certifying that her husband is not the man who impregnated her; that her husband could not be located; that the pregnancy is the result of spousal sexual assault which she has reported; or that the woman believes that notifying her husband will cause him or someone else to inflict bodily injury upon her. A physician who performs an abortion onPage 888a married woman without receiving the appropriate signed statement will have his or her license revoked, and is liable to the husband for damages.
The District Court heard the testimony of numerous expert witnesses, and made detailed findings of fact regarding the effect of this statute. These included:
"273. The vast majority of women consult their husbands prior to deciding to terminate their pregnancy. . . .
. . . . .
"279. The `bodily injury' exception could not be invoked by a married woman whose husband, if notified, would, in her reasonable belief, threaten to (a) publicize her intent to have an abortion to family, friends or acquaintances; (b) retaliate against her in future child custody or divorce proceedings; (c) inflict psychological intimidation or emotional harm upon her, her children or other persons; (d) inflict bodily harm on other persons such as children, family members or other loved ones; or (e) use his control over finances to deprive of necessary monies for herself or her children. . . .
. . . . .
"281. Studies reveal that family violence occurs in two million families in the United States. This figure, however, is a conservative one that substantially understates (because battering is usually not reported until it reaches life-threatening proportions) the actual number of families affected by domestic violence. In fact, researchers estimate that one of every two women will be battered at some time in their life. . . .
"282. A wife may not elect to notify her husband of her intention to have an abortion for a variety of reasons, including the husband's illness, concern about her own health, the imminent failure of the marriage, or the husband's absolute opposition to the abortion. . . .
"283. The required filing of the spousal consent form would require plaintiff-clinics to change their counselingPage 889procedures and force women to reveal their most intimate decisionmaking on pain of criminal sanctions. The confidentiality of these revelations could not be guaranteed, since the woman's records are not immune from subpoena. . . .
"284. Women of all class levels, educational backgrounds, and racial, ethnic and religious groups are battered. . . .
"285. Wife-battering or abuse can take on many physical and psychological forms. The nature and scope of the battering can cover a broad range of actions, and be gruesome and torturous. . . .
"286. Married women, victims of battering, have been killed in Pennsylvania and throughout the United States. . . .
"287. Battering can often involve a substantial amount of sexual abuse, including marital rape and sexual mutilation. . . .
"288. In a domestic abuse situation, it is common for the battering husband to also abuse the children in an attempt to coerce the wife. . . .
"289. Mere notification of pregnancy is frequently a flashpoint for battering and violence within the family. The number of battering incidents is high during the pregnancy, and often the worst abuse can be associated with pregnancy. . . . The battering husband may deny parentage and use the pregnancy as an excuse for abuse. . . .
"290. Secrecy typically shrouds abusive families. Family members are instructed not to tell anyone, especially police or doctors, about the abuse and violence. Battering husbands often threaten their wives or her children with further abuse if she tells an outsider of the violence, and tells her that nobody will believe her. A battered woman, therefore, is highly unlikely to disclose the violence against her forPage 890fear of retaliation by the abuser. . . .
"291. Even when confronted directly by medical personnel or other helping professionals, battered women often will not admit to the battering, because they have not admitted to themselves that they are battered. . . .
. . . . .
"294. A woman in a shelter or a safe house unknown to her husband is not `reasonably likely' to have bodily harm inflicted upon her by her batterer; however, her attempt to notify her husband pursuant to section 3209 could accidentally disclose her whereabouts to her husband. Her fear of future ramifications would be realistic under the circumstances.
"295. Marital rape is rarely discussed with others or reported to law enforcement authorities, and of those reported, only few are prosecuted. . . .
"296. It is common for battered women to have sexual intercourse with their husbands to avoid being battered. While this type of coercive sexual activity would be spousal sexual assault as defined by the Act, many women may not consider it to be so, and others would fear disbelief. . . .
"297. The marital rape exception to section 3209 cannot be claimed by women who are victims of coercive sexual behavior other than penetration. The 90-day reporting requirement of the spousal sexual assault statute, 18 Pa.Con.Stat.Ann. § 3218(c), further narrows the class of sexually abused wives who can claim the exception, since many of these women may be psychologically unable to discuss or report the rape for several years after the incident. . . .
"298. Because of the nature of the battering relationship, battered women are unlikely to avail themselves of the exceptions toPage 891section 3209 of the Act, regardless of whether the section applies to them."744 F. Supp., at 1360-1362(footnote omitted).
These findings are supported by studies of domestic violence. The American Medical Association (AMA) has published a summary of the recent research in this field, which indicates that, in an average 12-month period in this country, approximately two million women are the victims of severe assaults by their male partners. In a 1985 survey, women reported that nearly one of every eight husbands had assaulted their wives during the past year. The AMA views these figures as "marked underestimates," because the nature of these incidents discourages women from reporting them, and because surveys typically exclude the very poor, those who do not speak English well, and women who are homeless or in institutions or hospitals when the survey is conducted. According to the AMA, [r]esearchers on family violence agree that the true incidence of partner violence is probablydoublethe above estimates; or four million severely assaulted women per year. Studies on prevalence suggest that from one-fifth to one-third of all women will be physically assaulted by a partner or ex-partner during their lifetime. AMA Council on Scientific Affairs, Violence Against Women 7 (1991) (emphasis in original). Thus, on an average day in the United States, nearly 11,000 women are severely assaulted by their male partners. Many of these incidents involve sexual assault.Id., at 3-4; Shields Hanneke, Battered Wives' Reactions to Marital Rape, in The Dark Side of Families: Current Family Violence Research 131, 144 (D. Finkelhor, R. Gelles, G. Hataling, M. Straus eds. 1983). In families where wife-beating takes place, moreover, child abuse is often present as well. Violence Against Women,supra, at 12.
Other studies fill in the rest of this troubling picture. Physical violence is only the most visible form of abuse. Psychological abuse, particularly forced social and economic isolation of women, is also common. L. Walker, The Battered Woman Syndrome 27-28 (1984). ManyPage 892victims of domestic violence remain with their abusers, perhaps because they perceive no superior alternative. Herbert, Silver, Ellard, Coping with an Abusive Relationship: I. How and Why do Women Stay?, 53 J. Marriage the Family 311 (1991). Many abused women who find temporary refuge in shelters return to their husbands, in large part because they have no other source of income. Aguirre, Why Do They Return? Abused Wives in Shelters, 30 J. Nat. Assn. of Social Workers 350, 352 (1985). Returning to one's abuser can be dangerous. Recent Federal Bureau of Investigation statistics disclose that 8.8 percent of all homicide victims in the United States are killed by their spouses. Mercy Saltzman, Fatal Violence Among Spouses in the United States, 1976-85, 79 Am.J. Public Health 595 (1989). Thirty percent of female homicide victims are killed by their male partners. Domestic Violence: Terrorism in the Home, Hearing before the Subcommittee on Children, Family, Drugs and Alcoholism of the Senate Committee on Labor and Human Resources, 101st Cong., 2d Sess., 3 (1990).
The limited research that has been conducted with respect to notifying one's husband about an abortion, although involving samples too small to be representative, also supports the District Court's findings of fact. The vast majority of women notify their male partners of their decision to obtain an abortion. In many cases in which married women do not notify their husbands, the pregnancy is the result of an extramarital affair. Where the husband is the father, the primary reason women do not notify their husbands is that the husband and wife are experiencing marital difficulties, often accompanied by incidents of violence. Ryan Plutzer, When Married Women Have Abortions: Spousal Notification and Marital Interaction, 51 J. Marriage the Family 41, 44 (1989).
This information and the District Court's findings reinforce what common sense would suggest. In well-functioningPage 893marriages, spouses discuss important intimate decisions such as whether to bear a child. But there are millions of women in this country who are the victims of regular physical and psychological abuse at the hands of their husbands. Should these women become pregnant, they may have very good reasons for not wishing to inform their husbands of their decision to obtain an abortion. Many may have justifiable fears of physical abuse, but may be no less fearful of the consequences of reporting prior abuse to the Commonwealth of Pennsylvania. Many may have a reasonable fear that notifying their husbands will provoke further instances of child abuse; these women are not exempt from § 3209's notification requirement. Many may fear devastating forms of psychological abuse from their husbands, including verbal harassment, threats of future violence, the destruction of possessions, physical confinement to the home, the withdrawal of financial support, or the disclosure of the abortion to family and friends. These methods of psychological abuse may act as even more of a deterrent to notification than the possibility of physical violence, but women who are the victims of the abuse are not exempt from § 3209's notification requirement. And many women who are pregnant as a result of sexual assaults by their husbands will be unable to avail themselves of the exception for spousal sexual assault, § 3209(b)(3), because the exception requires that the woman have notified law enforcement authorities within 90 days of the assault, and her husband will be notified of her report once an investigation begins, § 3128(c). If anything in this field is certain, it is that victims of spousal sexual assault are extremely reluctant to report the abuse to the government; hence, a great many spousal rape victims will not be exempt from the notification requirement imposed by § 3209.
The spousal notification requirement is thus likely to prevent a significant number of women from obtaining an abortion. It does not merely make abortions a little more difficult or expensive to obtain; for many women, it will impose a substantial obstacle. We must notPage 894blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases.
Respondents attempt to avoid the conclusion that § 3209 is invalid by pointing out that it imposes almost no burden at all for the vast majority of women seeking abortions. They begin by noting that only about 20 percent of the women who obtain abortions are married. They then note that, of these women, about 95 percent notify their husbands of their own volition. Thus, respondents argue, the effects of § 3209 are felt by only one percent of the women who obtain abortions. Respondents argue that, since some of these women will be able to notify their husbands without adverse consequences or will qualify for one of the exceptions, the statute affects fewer than one percent of women seeking abortions. For this reason, it is asserted, the statute cannot be invalid on its face. See Brief for Respondents 83-86. We disagree with respondents' basic method of analysis.
The analysis does not end with the one percent of women upon whom the statute operates; it begins there. Legislation is measured for consistency with the Constitution by its impact on those whose conduct it affects. For example, we would not say that a law which requires a newspaper to print a candidate's reply to an unfavorable editorial is valid on its face because most newspapers would adopt the policy even absent the law. SeeMiami Herald Publishing Co. v. Tornillo,418 U.S. 241(1974). The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.
Respondents' argument itself gives implicit recognition to this principle at one of its critical points. Respondents speak of the one percent of women seeking abortions who are married and would choose not to notify their husbands of their plans. By selecting as the controllingPage 895class women who wish to obtain abortions, rather than all women or all pregnant women, respondents, in effect, concede that § 3209 must be judged by reference to those for whom it is an actual, rather than an irrelevant, restriction. Of course, as we have said, § 3209's real target is narrower even than the class of women seeking abortions identified by the State: it is married women seeking abortions who do not wish to notify their husbands of their intentions and who do not qualify for one of the statutory exceptions to the notice requirement. The unfortunate yet persisting conditions we document above will mean that, in a large fraction of the cases in which § 3209 is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion. It is an undue burden, and therefore invalid.
This conclusion is in no way inconsistent with our decisions upholding parental notification or consent requirements. See,e.g., Akron II,497 U.S., at 510-519;Bellotti v. Baird,443 U.S. 622(1979) (Bellotti II);Planned Parenthood of Central Mo. v. Danforth,428 U.S., at 74. Those enactments, and our judgment that they are constitutional, are based on the quite reasonable assumption that minors will benefit from consultation with their parents and that children will often not realize that their parents have their best interests at heart. We cannot adopt a parallel assumption about adult women.
We recognize that a husband has a deep and proper concern and interest . . . in his wife's pregnancy and in the growth and development of the fetus she is carrying.Danforth, supra, at 69. With regard to the children he has fathered and raised, the Court has recognized his "cognizable and substantial" interest in their custody.Stanley v. Illinois,405 U.S. 645,651-652(1972); see alsoQuilloin v. Walcott,434 U.S. 246(1978);Caban v. Mohammed,441 U.S. 380(1979);Lehr v. Robertson,463 U.S. 248(1983). If these cases concerned a State's ability to require the mother to notify the father before taking some action with respect to a livingPage 896child raised by both, therefore, it would be reasonable to conclude, as a general matter, that the father's interest in the welfare of the child and the mother's interest are equal.
Before birth, however, the issue takes on a very different cast. It is an inescapable biological fact that state regulation with respect to the child a woman is carrying will have a far greater impact on the mother's liberty than on the father's. The effect of state regulation on a woman's protected liberty is doubly deserving of scrutiny in such a case, as the State has touched not only upon the private sphere of the family, but upon the very bodily integrity of the pregnant woman. Cf.Cruzan v. Director, Mo. Dept. of Health,497 U.S., at 281. The Court has held that, when the wife and the husband disagree on this decision, the view of only one of the two marriage partners can prevail. Inasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor.Danforth, supra, at 71. This conclusion rests upon the basic nature of marriage and the nature of our Constitution: [T]he marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals, each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.Eisenstadt v. Baird,405 U.S., at 453(emphasis in original). The Constitution protects individuals, men and women alike, from unjustified state interference, even when that interference is enacted into law for the benefit of their spouses.
There was a time, not so long ago, when a different understanding of the family and of the Constitution prevailed. InBradwell v. State, 16 Wall. 130 (1873), three Members of this Court reaffirmed the commonPage 897law principle that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States.Id., at 141 (Bradley, J., joined by Swayne and Field, JJ., concurring in judgment). Only one generation has passed since this Court observed that "woman is still regarded as the center of home and family life," with attendant "special responsibilities" that precluded full and independent legal status under the Constitution.Hoyt v.Florida,368 U.S. 57,62(1961). These views, of course, are no longer consistent with our understanding of the family, the individual, or the Constitution.
In keeping with our rejection of the common law understanding of a woman's role within the family, the Court held inDanforththat the Constitution does not permit a State to require a married woman to obtain her husband's consent before undergoing an abortion.428 U.S., at 69. The principles that guided the Court inDanforthshould be our guides today. For the great many women who are victims of abuse inflicted by their husbands, or whose children are the victims of such abuse, a spousal notice requirement enables the husband to wield an effective veto over his wife's decision. Whether the prospect of notification itself deters such women from seeking abortions, or whether the husband, through physical force or psychological pressure or economic coercion, prevents his wife from obtaining an abortion until it is too late, the notice requirement will often be tantamount to the veto found unconstitutional inDanforth. The women most affected by this law — those who most reasonably fear the consequences of notifying their husbands that they are pregnant — are in the gravest danger.Page 898
The husband's interest in the life of the child his wife is carrying does not permit the State to empower him with this troubling degree of authority over his wife. The contrary view leads to consequences reminiscent of the common law. A husband has no enforceable right to require a wife to advise him before she exercises her personal choices. If a husband's interest in the potential life of the child outweighs a wife's liberty, the State could require a married woman to notify her husband before she uses a post-fertilization contraceptive. Perhaps next in line would be a statute requiring pregnant married women to notify their husbands before engaging in conduct causing risks to the fetus. After all, if the husband's interest in the fetus' safety is a sufficient predicate for state regulation, the State could reasonably conclude that pregnant wives should notify their husbands before drinking alcohol or smoking. Perhaps married women should notify their husbands before using contraceptives or before undergoing any type of surgery that may have complications affecting the husband's interest in his wife's reproductive organs. And if a husband's interest justifies notice in any of these cases, one might reasonably argue that it justifies exactly what theDanforthCourt held it did not justify — a requirement of the husband's consent as well. A State may not give to a man the kind of dominion over his wife that parents exercise over their children.
Section 3209 embodies a view of marriage consonant with the common law status of married women, but repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution. Women do not lose their constitutionally protected liberty when they marry. The Constitution protects all individuals, male or female, married or unmarried, from the abuse of governmental power, even where that power is employed for the supposed benefit of a member of the individual's family. These considerations confirm our conclusion that § 3209 is invalid.Page 899
D
We next consider the parental consent provision. Except in a medical emergency, an unemancipated young woman under 18 may not obtain an abortion unless she and one of her parents (or guardian) provides informed consent as defined above. If neither a parent nor a guardian provides consent, a court may authorize the performance of an abortion upon a determination that the young woman is mature and capable of giving informed consent and has, in fact, given her informed consent, or that an abortion would be in her best interests.
We have been over most of this ground before. Our cases establish, and we reaffirm today, that a State may require a minor seeking an abortion to obtain the consent of a parent or guardian, provided that there is an adequate judicial bypass procedure. See,e.g., Akron II,497 U.S., at 510-519;Hodgson,497 U.S., at 461(O'Connor, J., concurring in part and concurring in judgment in part);id., at 497-501 (Kennedy, J., concurring in judgment in part and dissenting in part);Akron I,462 U.S., at 440;Bellotti II,443 U.S., at 643-644(plurality opinion). Under these precedents, in our view, the one-parent consent requirement and judicial bypass procedure are constitutional.
The only argument made by petitioners respecting this provision and to which our prior decisions do not speak is the contention that the parental consent requirement is invalid because it requires informed parental consent. For the most part, petitioners' argument is a reprise of their argument with respect to the informed consent requirement in general, and we reject it for the reasons given above. Indeed, some of the provisions regarding informed consent have particular force with respect to minors: the waiting period, for example, may provide the parent or parents of a pregnant young woman the opportunity to consult with her in private, and to discuss the consequences of her decision in the context of the values and moral orPage 900religious principles of their family. SeeHodgson, supra, at 448-449 (opinion of Stevens, J.)
E
Under the recordkeeping and reporting requirements of the statute, every facility which performs abortions is required to file a report stating its name and address as well as the name and address of any related entity, such as a controlling or subsidiary organization. In the case of state-funded institutions, the information becomes public.
For each abortion performed, a report must be filed identifying: the physician (and the second physician where required); the facility; the referring physician or agency; the woman's age; the number of prior pregnancies and prior abortions she has had; gestational age; the type of abortion procedure; the date of the abortion; whether there were any preexisting medical conditions which would complicate pregnancy; medical complications with the abortion; where applicable, the basis for the determination that the abortion was medically necessary; the weight of the aborted fetus; and whether the woman was married, and if so, whether notice was provided or the basis for the failure to give notice. Every abortion facility must also file quarterly reports showing the number of abortions performed broken down by trimester. See 18 Pa. Cons. Stat. §§ 3207, 3214 (1990). In all events, the identity of each woman who has had an abortion remains confidential.
InDanforth,428 U.S., at 80, we held 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. We think that, under this standard, all the provisions at issue here except that relating to spousal notice are constitutional. Although they do not relate to the State's interest in informing the woman's choice, they do relate to health. The collection of information with respect to actual patients is a vital element ofPage 901medical research, and so it cannot be said that the requirements serve no purpose other than to make abortions more difficult. Nor do we find that the requirements impose a substantial obstacle to a woman's choice. At most, they might increase the cost of some abortions by a slight amount. While at some point increased cost could become a substantial obstacle, there is no such showing on the record before us.
Subsection (12) of the reporting provision requires the reporting of, among other things, a married woman's "reason for failure to provide notice" to her husband. § 3214(a)(12). This provision in effect requires women, as a condition of obtaining an abortion, to provide the Commonwealth with the precise information we have already recognized that many women have pressing reasons not to reveal. Like the spousal notice requirement itself, this provision places an undue burden on a woman's choice, and must be invalidated for that reason.
VI
Our Constitution is a covenant running from the first generation of Americans to us, and then to future generations. It is a coherent succession. Each generation must learn anew that the Constitution's written terms embody ideas and aspirations that must survive more ages than one. We accept our responsibility not to retreat from interpreting the full meaning of the covenant in light of all of our precedents. We invoke it once again to define the freedom guaranteed by the Constitution's own promise, the promise of liberty.
* * *
The judgment in No. 91-902 is affirmed. The judgment in No. 91-744 is affirmed in part and reversed in part, and the case is remanded for proceedings consistent with this opinion, including consideration of the question of severability.It is so ordered.Page 902
Selected Provisions of the 1988 and 1989 Amendments to the Pennsylvania Abortion Control Act of 1982
18 PA. CONS. STAT. (1990)
"§ 3203. Definitions.
. . . . .
"`Medical emergency.' That condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of major bodily function."
"§ 3205. Informed consent.
"(a) General rule. — No abortion shall be performed or induced except with the voluntary and informed consent of the woman upon whom the abortion is to be performed or induced. Except in the case of a medical emergency, consent to an abortion is voluntary and informed if and only if:
"(1) At least 24 hours prior to the abortion, the physician who is to perform the abortion or the referring physician has orally informed the woman of:
"(i) The nature of the proposed procedure or treatment and of those risks and alternatives to the procedure or treatment that a reasonable patient would consider material to the decision of whether or not to undergo the abortion.
"(ii) The probable gestational age of the unborn child at the time the abortion is to be performed.
"(iii) The medical risks associated with carrying her child to term.
"(2) At least 24 hours prior to the abortion, the physician who is to perform the abortion or the referring physician, or a qualified physician assistant, health care practitioner, technician or socialPage 903worker to whom the responsibility has been delegated by either physician, has informed the pregnant woman that:
"(i) The department publishes printed materials which describe the unborn child and list agencies which offer alternatives to abortion and that she has a right to review the printed materials and that a copy will be provided to her free of charge if she chooses to review it.
"(ii) Medical assistance benefits may be available for prenatal care, childbirth and neonatal care, and that more detailed information on the availability of such assistance is contained in the printed materials published by the department.
"(iii) The father of the unborn child is liable to assist in the support of her child, even in instances where he has offered to pay for the abortion. In the case of rape, this information may be omitted.
"(3) A copy of the printed materials has been provided to the woman if she chooses to view these materials.
"(4) The pregnant woman certifies in writing, prior to the abortion, that the information required to be provided under paragraphs (1), (2) and (3) has been provided.
"(b) Emergency. — Where a medical emergency compels the performance of an abortion, the physician shall inform the woman, prior to the abortion if possible, of the medical indications supporting his judgment that an abortion is necessary to avert her death or to avert substantial and irreversible impairment of major bodily function.
"(c) Penalty. — Any physician who violates the provisions of this section is guilty of "unprofessional conduct" and his license for the practice of medicine and surgery shall be subject to suspension or revocation in accordance with procedures provided under the act of October 5, 1978 (P.L. 1109, No. 261), known as the Osteopathic Medical Practice Act, the act of December 20, 1985Page 904(P.L. 457, No. 112), known as the Medical Practice Act of 1985, or their successor acts. Any physician who performs or induces an abortion without first obtaining the certification required by subsection (a)(4) or with knowledge or reason to know that the informed consent of the woman has not been obtained shall for the first offense be guilty of a summary offense and for each subsequent offense be guilty of a misdemeanor of the third degree. No physician shall be guilty of violating this section for failure to furnish the information required by subsection (a) if he or she can demonstrate, by a preponderance of the evidence, that he or she reasonably believed that furnishing the information would have resulted in a severely adverse effect on the physical or mental health of the patient.
"(d) Limitation on civil liability. — Any physician who complies with the provisions of this section may not be held civilly liable to his patient for failure to obtain informed consent to the abortion within the meaning of that term as defined by the act of October 15, 1975 (P.L. 390, No. 111), known as the Health Care Services Malpractice Act.
"§ 3206. Parental consent.
"(a) General rule. — Except in the case of a medical emergency or except as provided in this section, if a pregnant woman is less than 18 years of age and not emancipated, or if she has been adjudged an incompetent under 20 Pa.C.S. § 5511 (relating to petition and hearing; examination by court-appointed physician), a physician shall not perform an abortion upon her unless, in the case of a woman who is less than 18 years of age, he first obtains the informed consent both of the pregnant woman and of one of her parents; or, in the case of a woman who is incompetent, he first obtains the informed consent of her guardian. In deciding whether to grant such consent, a pregnant woman's parent or guardian shall consider only their child's or ward's best interests. In the case of a pregnancy that is the result of incest, where the father is aPage 905party to the incestuous act, the pregnant woman need only obtain the consent of her mother.
"(b) Unavailability of parent or guardian. — If both parents have died or are otherwise unavailable to the physician within a reasonable time and in a reasonable manner, consent of the pregnant woman's guardian or guardians shall be sufficient. If the pregnant woman's parents are divorced, consent of the parent having custody shall be sufficient. If neither any parent nor a legal guardian is available to the physician within a reasonable time and in a reasonable manner, consent of any adult person standing in loco parentis shall be sufficient.
"(c) Petition to the court for consent. — If both of the parents or guardians of the pregnant woman refuse to consent to the performance of an abortion or if she elects not to seek the consent of either of her parents or of her guardian, the court of common pleas of the judicial district in which the applicant resides or in which the abortion is sought shall, upon petition or motion, after an appropriate hearing, authorize a physician to perform the abortion if the court determines that the pregnant woman is mature and capable of giving informed consent to the proposed abortion, and has, in fact, given such consent.
"(d) Court order. — If the court determines that the pregnant woman is not mature and capable of giving informed consent or if the pregnant woman does not claim to be mature and capable of giving informed consent, the court shall determine whether the performance of an abortion upon her would be in her best interests. If the court determines that the performance of an abortion would be in the best interests of the woman, it shall authorize a physician to perform the abortion.
"(e) Representation in proceedings. — The pregnant woman may participate in proceedings in the court on her own behalf and the court may appoint a guardian ad litem to assist her. The court shall, however, advise her that she has a right to court-appointedPage 906counsel, and shall provide her with such counsel unless she wishes to appear with private counsel or has knowingly and intelligently waived representation by counsel.
"§ 3207. Abortion facilities.
. . . . .
"(b) Reports. — Within 30 days after the effective date of this chapter, every facility at which abortions are performed shall file, and update immediately upon any change, a report with the department, containing the following information:
"(1) Name and address of the facility.
"(2) Name and address of any parent, subsidiary or affiliated organizations, corporations or associations.
"(3) Name and address of any parent, subsidiary or affiliated organizations, corporations or associations having contemporaneous commonality of ownership, beneficial interest, directorship or officership with any other facility.
The information contained in those reports which are filed pursuant to this subsection by facilities which receive State-appropriated funds during the 12 calendar-month period immediately preceding a request to inspect or copy such reports shall be deemed public information. Reports filed by facilities which do not receive State-appropriated funds shall only be available to law enforcement officials, the State Board of Medicine and the State Board of Osteopathic Medicine for use in the performance of their official duties. Any facility failing to comply with the provisions of this subsection shall be assessed by the department a fine of $500 for each day it is in violation hereof."
"§ 3208. Printed information.
"(a) General rule. — The department shall cause to be published in English, Spanish and Vietnamese, within 60 days after this chapter becomes law, and shall update on an annual basis, the following easily comprehensible printed materials:Page 907
"(1) Geographically indexed materials designed to inform the woman of public and private agencies and services available to assist a woman through pregnancy, upon childbirth and while the child is dependent, including adoption agencies, which shall include a comprehensive list of the agencies available, a description of the services they offer and a description of the manner, including telephone numbers, in which they might be contacted, or, at the option of the department, printed materials including a toll-free 24 hour-a-day telephone number which may be called to obtain, orally, such a list and description of agencies in the locality of the caller and of the services they offer. The materials shall provide information on the availability of medical assistance benefits for prenatal care, childbirth and neonatal care, and state that it is unlawful for any individual to coerce a woman to undergo abortion, that any physician who performs an abortion upon a woman without obtaining her informed consent or without according her a private medical consultation may be liable to her for damages in a civil action at law, that the father of a child is liable to assist in the support of that child, even in instances where the father has offered to pay for an abortion and that the law permits adoptive parents to pay costs of prenatal care, childbirth and neonatal care.
"(2) Materials designed to inform the woman of the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from fertilization to full term, including pictures representing the development of unborn children at two-week gestational increments, and any relevant information on the possibility of the unborn child's survival; provided that any such pictures or drawings must contain the dimensions of the fetus and must be realistic and appropriate for the woman's stage of pregnancy. The materials shall be objective, non-judgmental and designed to convey only accuratePage 908scientific information about the unborn child at the various gestational ages. The material shall also contain objective information describing the methods of abortion procedures commonly employed, the medical risks commonly associated with each such procedure, the possible detrimental psyschological effects of abortion and the medical risks commonly associated with each such procedure and the medical risks commonly associated with carrying a child to term.
"(b) Format. — The materials shall be printed in a typeface large enough to be clearly legible.
"(c) Free distribution. — The materials required under this section shall be available at no cost from the department upon request and in appropriate number to any person, facility or hospital.
"§ 3209. Spousal notice.
"(a) Spousal notice required. — In order to further the Commonwealth's interest in promoting the integrity of the marital relationship and to protect a spouse's interests in having children within marriage and in protecting the prenatal life of that spouse's child, no physician shall perform an abortion on a married woman, except as provided in subsections (b) and (c), unless he or she has received a signed statement, which need not be notarized, from the woman upon whom the abortion is to be performed, that she has notified her spouse that she is about to undergo an abortion. The statement shall bear a notice that any false statement made therein is punishable by law.
"(b) Exceptions. — The statement certifying that the notice required by subsection (a) has been given need not be furnished where the woman provides the physician a signed statement certifying at least one of the following:
"(1) Her spouse is not the father of the child.
"(2) Her spouse, after diligent effort, could not be located.Page 909
"(3) The pregnancy is a result of spousal sexual assault as described in section 3128 (relating to spousal sexual assault), which has been reported to a law enforcement agency having the requisite jurisdiction.
"(4) The woman has reason to believe that the furnishing of notice to her spouse is likely to result in the infliction of bodily injury upon her by her spouse or by another individual.
Such statement need not be notarized, but shall bear a notice that any false statements made therein are punishable by law.
"(c) Medical emergency. — The requirements of subsection (a) shall not apply in case of a medical emergency.
"(d) Forms. — The department shall cause to be published, forms which may be utilized for purposes of providing the signed statements required by subsections (a) and (b). The department shall distribute an adequate supply of such forms to all abortion facilities in this Commonwealth.
"(e) Penalty; civil action. — Any physician who violates the provisions of this section is guilty of "unprofessional conduct," and his or her license for the practice of medicine and surgery shall be subject to suspension or revocation in accordance with procedures provided under the act of October 5, 1978 (P.L. 1109, No. 261), known as the Osteopathic Medical Practice Act, the act of December 20, 1985 (P. L. 457, No. 112), known as the Medical Practice Act of 1985, or their successor acts. In addition, any physician who knowingly violates the provisions of this section shall be civilly liable to the spouse who is the father of the aborted child for any damages caused thereby and for punitive damages in the amount of $5,000, and the court shall award a prevailing plaintiff a reasonable attorney fee as part of costs.
"§ 3214. Reporting.
"(a) General rule. — For the purpose of promotion of maternal health and life by adding to the sum of medical and public healthPage 910knowledge through the compilation of relevant data, and to promote the Commonwealth's interest in protection of the unborn child, a report of each abortion performed shall be made to the department on forms prescribed by it. The report forms shall not identify the individual patient by name and shall include the following information:
"(1) Identification of the physician who performed the abortion, the concurring physician as required by section 3211(c)(2) (relating to abortion on unborn child of 24 or more weeks gestational age), the second physician as required by section 3211(c)(5) and the facility where the abortion was performed and of the referring physician, agency or service, if any.
"(2) The county and state in which the woman resides.
"(3) The woman's age.
"(4) The number of prior pregnancies and prior abortions of the woman.
"(5) The gestational age of the unborn child at the time of the abortion.
"(6) The type of procedure performed or prescribed and the date of the abortion.
"(7) Preexisting medical conditions of the woman which would complicate pregnancy, if any, and if known, any medical complication which resulted from the abortion itself.
"(8) The basis for the medical judgment of the physician who performed the abortion that the abortion was necessary to prevent either the death of the pregnant woman or he substantial and irreversible impairment of a major bodily function of the woman, where an abortion has been performed pursuant to section 3211(b)(1).
"(9) The weight of the aborted child for any abortion performed pursuant to section 3211(b)(1).
"(10) Basis for any medical judgment that a medical emergency existed which excused the physician from compliance with any provision of this chapter.Page 911
"(11) The information required to be reported under section 3210(a) (relating to determination of gestational age).
"(12) Whether the abortion was performed upon a married woman and, if so, whether notice to her spouse was given. If no notice to her spouse was given, the report shall also indicate the reason for failure to provide notice.
. . . . .
"(f) Report by facility. — Every facility in which an abortion is performed within this Commonwealth during any quarter year shall file with the department a report showing the total number of abortions performed within the hospital or other facility during that quarter year. This report shall also show the total abortions performed in each trimester of pregnancy. Any report shall be available for public inspection and copying only if the facility receives State-appropriated funds within the 12 calendar-month period immediately preceding the filing of the report. These reports shall be submitted on a form prescribed by the department which will enable a facility to indicate whether or not it is receiving State-appropriated funds: If the facility indicates on the form that it is not receiving State-appropriated funds, the department shall regard its report as confidential unless it receives other evidence which causes it to conclude that the facility receives State-appropriated funds.
I
The Court is unquestionably correct in concluding that the doctrine ofstare decisishas controlling significance in a case of this kind, notwithstanding an individual Justice's concerns about the merits.1The central holding ofRoe v.Wade,410 U.S. 113(1973), has been a "part of our law" for almost two decades.Planned Parenthood ofCentral 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 inGriswold v.Connecticut,381 U.S. 479(1965). See alsoCarey v. PopulationServices International,431 U.S. 678,687,702(1977) (WHITE, J., concurring in part and concurring in result). The societal costs of overrulingRoeat this late date would be enormous.Roeis an integral part of a correct understanding of both the concept of liberty and the basic equality of men and women.Stare decisisalso provides a sufficient basis for my agreement with the joint opinion's reaffirmation ofRoe'spostviability 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; seeante, at 879.
I also accept what is implicit in the Court's analysis, namely, a reaffirmation ofRoe'sexplanation ofwhythe State's obligation to protect the life or health of the mother must take precedence over anyPage 913duty to the unborn. The Court inRoecarefully considered, and rejected, the State's argument "that the fetus is a `person' within the language and meaning of theFourteenthAmendment."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 guardiansad 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 toFourteenthAmendment protection."Id., at 159. From this holding, there was no dissent, seeid., 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."2This has been and, by the Court's holding today,Page 914remains, a fundamental premise of our constitutional law governing reproductive autonomy.
II
My disagreement with the joint opinion begins with its understanding of the trimester framework established inRoe. 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 theFirstAmendment, the State may not promote a theological or sectarian interest. SeeThornburgh v. American College of Obstetricians and Gynecologists,476 U.S. 747,778(1986) (STEVENS, J., concurring); see generallyWebsterv. 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 interestin 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 thePage 915performance of more 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,3believing 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.
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."Stanleyv. 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. 589,598-600(1977). A woman consideringPage 916abortion 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'srequirement that restrictions on abortions before viability be justified by the State's interest inmaternalhealth 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 written informedPage 917consent, seePlanned Parenthood of Central Mo. v. Danforth,428 U.S. 52(1976); limited recordkeeping and reporting, seeibid.;and pathology reports, seePlanned 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, seeBigelow 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 alsoAkron 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 inAkron(and followed by the Court just six years ago inThornburgh) 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 thePage 918woman's choice in any way. If anything, such requirementsenhance, 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, seeHodgson v. Minnesota,497 U.S. 417,449(1990),4none of those reasons applies to anPage 919adult woman's decisionmaking ability. Just as we have left behind the belief that a woman must consult her husband before undertaking serious matters, seeante, 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).
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.5Page 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.6
The 24-hour delay requirement fails both parts of this test. The findings of the District Court establish the severity ofPage 921the 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 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 these cases, 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 toallwomen 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,7when fetal age has less relevance than when the fetus nears viability. Nor canPage 922the information required by the statute be justified as relevant to any "philosophic" or "social" argument,anteat 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,8I join the remainder of the Court's opinion.
Three years ago, inWebster v. Reproductive Health Services492 U.S. 490(1989), four Members of this Court appeared poised to "cas[t] into darkness the hopes and visions of every woman in this country" who had come to believe that the Constitution guaranteed her the right to reproductive choice.Id., at 557 (BLACKMUN, J., dissenting). Seeid., at 499 (plurality opinion of REHNQUIST, C. J., joined by White and Kennedy, JJ.);id., at 532 (SCALIA, J., concurring in part and concurring in judgment). All that remained between the promise ofRoeand the darkness of the plurality was a single, flickering flame. Decisions sinceWebstergave little reason to hope that this flame would cast much light. See,e.g., Ohio v. Akron Center for ReproductiveHealth,497 U.S. 502,524(1990) (BLACKMUN, J., dissenting). But now, just when so many expected the darkness to fall, the flame has grown bright.Page 923
I do not underestimate the significance of today's joint opinion. Yet I remain steadfast in my belief that the right to reproductive choice is entitled to the full protection afforded by this Court beforeWebster. And I fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light.
I
Make no mistake, the joint opinion of Justices O'CONNOR, KENNEDY, and SOUTER is an act of personal courage and constitutional principle. In contrast to previous decisions in which Justices O'CONNOR and KENNEDY postponed reconsideration ofRoe v. Wade,410 U.S. 113(1973), the authors of the joint opinion today join JUSTICE STEVENS and me in concluding that "the essential holding ofRoe v. Wadeshould be retained and once again reaffirmed."Anteat 846. In brief, five Members of this Court today recognize that "the Constitution protects a woman's right to terminate her pregnancy in its early stages."Ante,, at 844.
A fervent view of individual liberty and the force ofstare decisishave led the Court to this conclusion.Ante, at 853. Today a majority reaffirms that the Due Process Clause of theFourteenthAmendment establishes "a realm of personal liberty which the government may not enter,"ante, at 847 — a realm whose outer limits cannot be determined by interpretations of the Constitution that focus only on the specific practices of States at the time theFourteenthAmendment was adopted. Seeante, at 848-849. Included within this realm of liberty is "the right of theindividual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."Ante, at 851, quotingEisenstadt v. Baird,405 U.S. 438,453(1972) (emphasis in original). These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, arecentralto thePage 924liberty protected by theFourteenthAmendment.Ante, at 851 (emphasis added). Finally, the Court today recognizes that, in the case of abortion, the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear.Ante, at 852.
The Court's reaffirmation ofRoe'scentral holding is also based on the force ofstare decisis. "[N]o erosion of principle going to liberty or personal autonomy has leftRoe'scentral holding a doctrinal remnant;Roeportends no developments at odds with other precedent for the analysis of personal liberty; and no changes of fact have rendered viability more or less appropriate as the point at which the balance of interests tips."Ante, at 860-861. Indeed, the Court acknowledges thatRoe'slimitation on state power could not be removed without serious inequity to those who have relied upon it or significant damage to the stability of the society governed by the rule in question.Ante, at 855. In the 19 years sinceRoewas decided, that case has shaped more than reproductive planning — [a]n entire generation has come of age free to assumeRoe'sconcept of liberty in defining the capacity of women to act in society, and to make reproductive decisions.Ante, at 860. The Court understands that, having "call[ed] the contending sides . . . to end their national division by accepting a common mandate rooted in the Constitution,"ante, at 867, a decision to overruleRoewould seriously weaken the Court's capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law.Ante, at 865. What has happened today should serve as a model for future Justices and a warning to all who have tried to turn this Court into yet another political branch.
In striking down the Pennsylvania statute's spousal notification requirement, the Court has established a frameworkPage 925for evaluating abortion regulations that responds to the social context of women facing issues of reproductive choice.1In determining the burden imposed by the challenged regulation, the Court inquires whether the regulation's "purpose or effectis to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability."Ante, at 878 (emphasis added). The Court reaffirms: The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.Ante, at 894. Looking at this group, the Court inquires, based on expert testimony, empirical studies, and common sense, whether, in a large fraction of the cases in which [the restriction] is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion.Ante,, at 895. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it.Ante, at 877. And in applying its test, the Court remains sensitive to the unique role of women in the decisionmaking process. Whatever may have been the practice when theFourteenthAmendment was adopted, the Court observes, [w]omen do not lose their constitutionally protected liberty when they marry. The Constitution protects all individuals, male or female, married or unmarried, from the abuse of governmental power, even where that power is employed for the supposed benefit of a member of the individual's family.Ante, at 898.2Page 926
Lastly, while I believe that the joint opinion errs in failing to invalidate the other regulations, I am pleased that the joint opinion has not ruled out the possibility that these regulations may be shown to impose an unconstitutional burden. The joint opinion makes clear that its specific holdings are based on the insufficiency of the record before it. See,e.g., ante,, at 885-886. I am confident that, in the future, evidence will be produced to show that, in a large fraction of the cases in which [these regulations are] relevant, [they] will operate as a substantial obstacle to a woman's choice to undergo an abortion.Ante, at 895.
II
Today, no less than yesterday, the Constitution and decisions of this Court require that a State's abortion restrictions be subjected to the strictest of judicial scrutiny. Our precedents and the joint opinion's principles require us to subject all non-de-minimisabortion regulations to strict scrutiny. Under this standard, the Pennsylvania statute's provisions requiring content-based counseling, a 24-hour delay, informed parental consent, and reporting of abortion-related information must be invalidated.
A
The Court today reaffirms the long recognized rights of privacy and bodily integrity. As early as 1891, the Court held, "[n]o right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others. . . ."Union Pacific R. Co. v. Botsford,141 U.S. 250,251(1891). Throughout this century, this Court also has held that the fundamental right of privacy protects citizens against governmental intrusionPage 927in such intimate family matters as procreation, childrearing, marriage, and contraceptive choice. Seeante, at 847-849. These cases embody the principle that personal decisions that profoundly affect bodily integrity, identity, and destiny should be largely beyond the reach of government.Eisenstadt,405 U.S., at 453. InRoe v. Wade, this Court correctly applied these principles to a woman's right to choose abortion.
State restrictions on abortion violate a woman's right of privacy in two ways. First, compelled continuation of a pregnancy infringes upon a woman's right to bodily integrity by imposing substantial physical intrusions and significant risks of physical harm. During pregnancy, women experience dramatic physical changes and a wide range of health consequences. Labor and delivery pose additional health risks and physical demands. In short, restrictive abortion laws force women to endure physical invasions far more substantial than those this Court has held to violate the constitutional principle of bodily integrity in other contexts. See,e.g., Winston v. Lee,470 U.S. 753(1985) (invalidating surgical removal of bullet from murder suspect);Rochinv. California,342 U.S. 165(1952) (invalidating stomach-pumping).3
Further, when the State restricts a woman's right to terminate her pregnancy, it deprives a woman of the right to make her own decision about reproduction and family planning — critical life choices that this Court long has deemed central to the right to privacy. The decision to terminate or continue a pregnancy has no less an impact on a woman's life than decisions about contraception or marriage.Page 928410 U.S., at 153. Because motherhood has a dramatic impact on a woman's educational prospects, employment opportunities, and self-determination, restrictive abortion laws deprive her of basic control over her life. For these reasons, "the decision whether or not to beget or bear a child" lies at "the very heart of this cluster of constitutionally protected choices."Carey v. Population ServicesInternational,431 U.S. 678,685(1977).
A State's restrictions on a woman's right to terminate her pregnancy also implicate constitutional guarantees of gender equality. State restrictions on abortion compel women to continue pregnancies they otherwise might terminate. By restricting the right to terminate pregnancies, the State conscripts women's bodies into its service, forcing women to continue their pregnancies, suffer the pains of childbirth, and in most instances, provide years of maternal care. The State does not compensate women for their services; instead, it assumes that they owe this duty as a matter of course. This assumption — that women can simply be forced to accept the "natural" status and incidents of motherhood — appears to rest upon a conception of women's role that has triggered the protection of the Equal Protection Clause. See,e.g., Mississippi Univ. for Women v. Hogan,458 U.S. 718,724-726(1982);Craig v. Boren,429 U.S. 190,198-199(1976).4The joint opinion recognizes that these assumptions about women's place inPage 929society "are no longer consistent with our understanding of the family, the individual, or the Constitution."Ante, at 897.
B
The Court has held that limitations on the right of privacy are permissible only if they survive "strict" constitutional scrutiny — that is, only if the governmental entity imposing the restriction can demonstrate that the limitation is both necessary and narrowly tailored to serve a compelling governmental interest.Griswold v. Connecticut,381 U.S. 479,485(1965). We have applied this principle specifically in the context of abortion regulations.Roe v. Wade,410 U.S., at 155.5Roeimplemented these principles through a framework that was designed to ensure that the woman's right to choose not become so subordinate to the State's interest in promoting fetal life that her choice exists in theory, but not in fact,ante, at 872.Roeidentified two relevant state interests: "an interest in preserving and protecting the health of the pregnant woman" and an interest in "protecting the potentiality of human life."410 U.S., at 162. With respect to the State's interest in the health of the mother, "the `compelling' point . . . is at approximately the end of the first trimester," because it is at that point that the mortality rate in abortion approaches that in childbirth.Id., at 163. With respect to the State's interest in potential life, "the `compelling' point is at viability," because it is at that point that thePage 930fetus "presumably has the capability of meaningful life outside the mother's womb."Ibid. In order to fulfill the requirement of narrow tailoring, "the State is obligated to make a reasonable effort to limit the effect of its regulations to the period in the trimester during which its health interest will be furthered."Akron v. Akron Centerfor Reproductive Health, Inc.,462 U.S. 416,434(1983).
In my view, application of this analytical framework is no less warranted than when it was approved by seven Members of this Court inRoe. Strict scrutiny of state limitations on reproductive choice still offers the most secure protection of the woman's right to make her own reproductive decisions, free from state coercion. No majority of this Court has ever agreed upon an alternative approach. The factual premises of the trimester framework have not been undermined, seeWebster,492 U.S., at 553(BLACKMUN, J., dissenting), and theRoeframework is far more administrable, and far less manipulable, than the "undue burden" standard adopted by the joint opinion.
Nonetheless, three criticisms of the trimester framework continue to be uttered. First, the trimester framework is attacked because its key elements do not appear in the text of the Constitution. My response to this attack remains the same as it was inWebster:
"Were this a true concern, we would have to abandon most of our constitutional jurisprudence. [T]he "critical elements" of countless constitutional doctrines nowhere appear in the Constitution's text. . . . The Constitution makes no mention, for example, of theFirstAmendment's "actual malice" standard for proving certain libels, seeNew York Times Co. v. Sullivan,376 U.S. 254(1964). . . . Similarly, the Constitution makes no mention of the rational basis test, or the specific verbal formulations of intermediate and strict scrutiny by which this Court evaluates claims under the Equal Protection Clause. The reason is simple. Like theRoeframework, these tests orPage 931standards are not, and do not purport to be, rights protected by the Constitution. Rather, they are judge-made methods for evaluating and measuring the strength and scope of constitutional rights or for balancing the constitutional rights of individuals against the competing interests of government."Id., at 548.
The second criticism is that the framework more closely resembles a regulatory code than a body of constitutional doctrine. Again, my answer remains the same as inWebster:
"[I]f this were a true and genuine concern, we would have to abandon vast areas of our constitutional jurisprudence. . . . Are [the distinctions entailed in the trimester framework] any finer, or more `regulatory,' than the distinctions we have often drawn in ourFirstAmendment jurisprudence, where, for example, we have held that a `release time' program permitting public school students to leave school grounds during school hours to receive religious instruction does not violate the Establishment Clause, even though a release time program permitting religious instruction on school grounds does violate the Clause? CompareZorach v. Clauson,343 U.S. 306(1952),with Illinois ex rel.McCollum v. Board of Education of School Dist. No. 71, ChampaignCounty,333 U.S. 203(1948). . . . Similarly, in aSixthAmendment case, the Court held that, although an overnight ban on attorney-client communication violated the constitutionally guaranteed right to counsel,Geders v. United States,425 U.S. 80(1976), that right was not violated when a trial judge separated a defendant from his lawyer during a 15-minute recess after the defendant's direct testimony.Perry v. Leeke,488 U.S. 272(1989).
"That numerous constitutional doctrines result in narrow differentiations between similar circumstances doesPage 932not mean that this Court has abandoned adjudication in favor of regulation."Id., at 549-550.
The final, and more genuine, criticism of the trimester framework is that it fails to find the State's interest in potential human life compelling throughout pregnancy. No Member of this Court — nor for that matter, the Solicitor General, Tr. of Oral Arg. 42 — has ever questioned our holding inRoethat an abortion is not "the termination of life entitled toFourteenthAmendment protection."410 U.S., at 159. Accordingly, a State's interest in protecting fetal life is not grounded in the Constitution. Nor, consistent with our Establishment Clause, can it be a theological or sectarian interest. SeeThornburghv. American College of Obstetricians and Gynecologists,476 U.S. 778, 747, (1986) (STEVENS, J., concurring). It is, instead, a legitimate interest grounded in humanitarian or pragmatic concerns. Seeante, at 914-915 (STEVENS, J., concurring in part and dissenting in part).
But while a State has "legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child,"ante, at 846, legitimate interests are not enough. To overcome the burden of strict scrutiny, the interests must be compelling. The question then is how best to accommodate the State's interest in potential human life with the constitutional liberties of pregnant women. Again, I stand by the views I expressed inWebster:
"I remain convinced, as six other Members of this Court 16 years ago were convinced, that theRoeframework, and the viability standard in particular, fairly, sensibly, and effectively functions to safeguard the constitutional liberties of pregnant women while recognizing and accommodating the State's interest in potential human life. The viability line reflects the biological facts and truths of fetal development; it marks that threshold moment prior to which a fetus cannot survive separate from thePage 933woman and cannot reasonably and objectively be regarded as a subject of rights or interests distinct from, or paramount to, those of the pregnant woman. At the same time, the viability standard takes account of the undeniable fact that, as the fetus evolves into its postnatal form, and as it loses its dependence on the uterine environment, the State's interest in the fetus' potential human life, and in fostering a regard for human life in general, becomes compelling. As a practical matter, because viability follows `quickening' — the point at which a woman feels movement in her womb — and because viability occurs no earlier than 23 weeks gestational age, it establishes an easily applicable standard for regulating abortion, while providing a pregnant woman ample time to exercise her fundamental right with her responsible physician to terminate her pregnancy."492 U.S., at 553-554.6Roe'strimester framework does not ignore the State's interest in prenatal life. Like JUSTICE STEVENS, ante, at 916, I agree that the State may take steps to ensure that a woman's choice "is thoughtful and informed,"ante, at 872, 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 873. But
"[s]erious questions arise . . . 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 respectPage 934the individual's freedom to make such judgments.Ante, at 916 (STEVENS, J., concurring in part and dissenting in part) (internal quotation marks omitted).
As the joint opinion recognizes, the means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it.Ante, at 877.
In sum,Roe'srequirement of strict scrutiny as implemented through a trimester framework should not be disturbed. No other approach has gained a majority, and no other is more protective of the woman's fundamental right. Lastly, no other approach properly accommodates the woman's constitutional right with the State's legitimate interests.
C
Application of the strict scrutiny standard results in the invalidation of all the challenged provisions. Indeed, as this Court has invalidated virtually identical provisions in prior cases,staredecisisrequires that we again strike them down.
This Court has upheld informed- and written-consent requirements only where the State has demonstrated that they genuinely further important health-related state concerns. SeePlanned Parenthood of Central Mo.v. Danforth,428 U.S. 65-67, 52, (1976). A State may not, under the guise of securing informed consent, "require the delivery of information `designed to influence the woman's informed choice between abortion or childbirth.'"Thornburgh,476 U.S., at 760quotingAkron,462 U.S., at 443-444. Rigid requirements that a specific body of information be imparted to a woman in all cases, regardless of the needs of the patient, improperly intrude upon the discretion of the pregnant woman's physician. and thereby impose an "`undesired and uncomfortable straitjacket.'"Thornburgh,476 U.S., at 762, quotingDanforth,428 U.S., at 67, n. 8.
Measured against these principles, some aspects of the Pennsylvania informed consent scheme are unconstitutional.Page 935While it is unobjectionable for the Commonwealth to require that the patient be informed of the nature of the procedure, the health risks of the abortion and of childbirth, and the probable gestational age of the unborn child,comparePa. Cons. Stat. §§ 3205(a)(1)(i)-(iii) (1990) withAkron,462 U.S., at 446, n. 37, I remain unconvinced that there is a vital state need for insisting that the information be provided by a physician, rather than a counselor.Id., at 448. The District Court found that the physician-only requirement necessarily would increase costs to the plaintiff clinics, costs that undoubtedly would be passed on to patients. And because trained women counselors are often more understanding than physicians, and generally have more time to spend with patients, see App. 366-387, the physician-only disclosure requirement is not narrowly tailored to serve the Commonwealth's interest in protecting maternal health.
Sections 3205(a)(2)(i) (iii) of the Act further requires that the physician or a qualified nonphysician inform the woman that printed materials are available from the Commonwealth that describe the fetus and provide information about medical assistance for childbirth, information about child support from the father, and a list of agencies offering adoption and other services as alternatives to abortion.Thornburghinvalidated biased patient counseling requirements virtually identical to the one at issue here. What we said of those requirements fully applies in these cases:
"[T]he listing of agencies in the printed Pennsylvania form presents serious problems; it contains names of agencies that well may be out of step with the needs of the particular woman, and thus places the physician in an awkward position and infringes upon his or her professional responsibilities. Forcing the physician or counselor to present the materials and the list to the woman makes him or her in effect an agent of the State in treating the woman and places his or her imprimatur upon both the materials and thePage 936list. 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 . . . 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 . . ., 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. . . . 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."476 U.S., at 762-763(citation omitted).
"This type of compelled information is the antithesis of informed consent,"id., at 764, and goes far beyond merely describing the general subject matter relevant to the woman's decision. 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 antiabortion character of the statute and its real purpose."Ibid.7Page 937
The 24-hour waiting period following the provision of the foregoing information is also clearly unconstitutional. The District Court found that the mandatory 24-hour delay could lead to delays in excess of 24 hours, thus increasing health risks, and that it would require two visits to the abortion provider, thereby increasing travel time, exposure to further harassment, and financial cost. Finally, the District Court found that the requirement would pose especially significant burdens on women living in rural areas and those women that have difficulty explaining their whereabouts.744 F. Supp. 1323,1378-1379(ED pa. 1990). InAkron, this Court invalidated a similarly arbitrary or inflexible waiting period because, as here, it furthered no legitimate state interest.8
As JUSTICE STEVENS insightfully concludes, the mandatory delay rests either on outmoded or unacceptable assumptions about the decisionmaking capacity of women or the belief that the decision to terminate thePage 938pregnancy is presumptively wrong.Ante, at 918-919. The requirement that women consider this obvious and slanted information for an additional 24 hours contained in these provisions will only influence the woman's decision in improper ways. The vast majority of women will know this information — of the few that do not, it is less likely that their minds will be changed by this information than it will be either by the realization that the State opposes their choice or the need once again to endure abuse and harassment on return to the clinic.9
Except in the case of a medical emergency, § 3206 requires a physician to obtain the informed consent of a parent or guardian before performing an abortion on an unemancipated minor or an incompetent woman. Based on evidence in the record, the District Court concluded that, in order to fulfill the informed consent requirement, generally accepted medical principles would require an in-person visit by the parent to the facility.744 F. Supp., at 1382. Although the Court "has recognized that the State has somewhat broader authority to regulate the activities of children than of adults," the State nevertheless must demonstrate that there is a "significant State interestin conditioning an abortion . . . that is not present in the case of an adult."Danforth,428 U.S., at 74-75(emphasis added). The requirement of an in-person visit would carry with it the risk of a delay of several days or possibly weeks, even where the parent is willing to consent. While the State has an interest in encouraging parental involvement in the minor's abortion decision, § 3206 is not narrowly drawn to serve that interest.10Page 939
Finally, the Pennsylvania statute requires every facility performing abortions to report its activities to the Commonwealth. Pennsylvania contends that this requirement is valid underDanforth, in which this Court held that recordkeeping and reporting requirements that are reasonably directed to the preservation of maternal health, and that properly respect a patient's confidentiality, are permissible.Id., at 79-81. The Commonwealth attempts to justify its required reports on the ground that the public has a right to know how its tax dollars are spent. A regulation designed to inform the public about public expenditures does not further the Commonwealth's interest in protecting maternal health. Accordingly, such a regulation cannot justify a legally significant burden on a woman's right to obtain an abortion.
The confidential reports concerning the identities and medical judgment of physicians involved in abortions at first glance may seem valid, given the Commonwealth's interest in maternal health and enforcement of the Act. The District Court found, however, that, notwithstanding the confidentiality protections, many physicians, particularly those who have previously discontinued performing abortions because of harassment, would refuse to refer patients to abortion clinics if their names were to appear on these reports.744 F. Supp., at 1392. The Commonwealth has failed to show that the name of the referring physician either adds to the pool of scientific knowledge concerning abortion or is reasonably related to the Commonwealth's interest in maternal health. I therefore agree with the District Court's conclusion that the confidential reporting requirements are unconstitutionalPage 940insofar as they require the name of the referring physician and the basis for his or her medical judgment.
In sum, I would affirm the judgment in No. 91-902 and reverse the judgment in No. 91-744 and remand the cases for further proceedings.
III
At long last, THE CHIEF JUSTICE and those who have joined him admit it. Gone are the contentions that the issue need not be (or has not been) considered. There, on the first page, for all to see, is what was expected: We believe thatRoewas wrongly decided, and that it can and should be overruled consistently with our traditional approach tostare decisisin constitutional cases.Post, at 944. If there is much reason to applaud the advances made by the joint opinion today, there is far more to fear from THE CHIEF JUSTICE's opinion.
THE CHIEF JUSTICE's criticism ofRoefollows from his stunted conception of individual liberty. While recognizing that the Due Process Clause protects more than simple physical liberty, he then goes on to construe this Court's personal liberty cases as establishing only a laundry list of particular rights, rather than a principled account of how these particular rights are grounded in a more general right of privacy.Post, at 951. This constricted view is reinforced by THE CHIEF JUSTICE's exclusive reliance on tradition as a source of fundamental rights. He argues that the record in favor of a right to abortion is no stronger than the record inMichael H. v. Gerald D.,491 U.S. 110(1989), where the plurality found no fundamental right to visitation privileges by an adulterous father, or inBowers v.Hardwick,478 U.S. 186(1986), where the Court found no fundamental right to engage in homosexual sodomy, or in a case involving the "`firing [of] a gun . . . into another person's body.'"Post, at 951-952. In THE CHIEF JUSTICE's world, a woman considering whether to terminate a pregnancy is entitled to no more protection thanPage 941adulterers, murderers, and so-called sexual deviates.11Given THE CHIEF JUSTICE's exclusive reliance on tradition, people using contraceptives seem the next likely candidate for his list of outcasts.
Even more shocking than THE CHIEF JUSTICE's cramped notion of individual liberty is his complete omission of any discussion of the effects that compelled childbirth and motherhood have on women's lives. The only expression of concern with women's health is purely instrumental — for THE CHIEF JUSTICE, only women'spsychologicalhealth is a concern, and only to the extent that he assumes that every woman who decides to have an abortion does so without serious consideration of the moral implications of their decision.Post, at 967-968. In short, THE CHIEF JUSTICE's view of the State's compelling interest in maternal health has less to do with health than it does with compelling women to be maternal.
Nor does THE CHIEF JUSTICE give any serious consideration to the doctrine ofstare decisis. For THE CHIEF JUSTICE, the facts that gave rise toRoeare surprisingly simple: women become pregnant, there is a point somewhere, depending on medical technology, where a fetus becomes viable, and women give birth to children.Post, at 955. This characterization of the issue thus allows THE CHIEF JUSTICE quickly to discard the joint opinion's reliance argument by asserting that "reproductive planning could take virtually immediate account of" a decision overrulingRoe.Post, at 956. (internal quotation marks omitted).
THE CHIEF JUSTICE's narrow conception of individual liberty andstaredecisisleads him to propose the same standard of review proposed by the plurality inWebster. States may regulate abortion procedures in ways rationally related to a legitimate state interest.Williamson v. Lee Optical of Oklahoma,Inc.,348 U.S. 483,491(1955); cf.Stanley v. Illinois,405 U.S. 645,651-653(1972).Post, at 966. THE CHIEF JUSTICE then furtherPage 942weakens the test by providing an insurmountable requirement for facial challenges: Petitioners must "`show that no set of circumstances exists under which the [provision] would be valid.'"Post, at 973, quotingOhio v. Akron Center for Reproductive Health,497 U.S., at 514. In short, in his view, petitioners must prove that the statute cannot constitutionally be applied to anyone. Finally, in applying his standard to the spousal-notification provision, THE CHIEF JUSTICE contends that the record lacks any "hard evidence" to support the joint opinion's contention that a "large fraction" of women who prefer not to notify their husbands involve situations of battered women and unreported spousal assault.Post, at 974, n. 2. Yet throughout the explication of his standard, THE CHIEF JUSTICE never explains what hard evidence is, how large a fraction is required, or how a battered women is supposed to pursue an as-applied challenge.
Under his standard, States can ban abortion if that ban is rationally related to a legitimate state interest — a standard which the United States calls "deferential, but not toothless." Yet when pressed at oral argument to describe the teeth, the best protection that the Solicitor General could offer to women was that a prohibition, enforced by criminal penalties,with no exception for the life of the mother,"could raise very serious questions." Tr. of Oral Arg. 48. Perhaps, the Solicitor General offered, the failure to include an exemption for the life of the mother would be "arbitrary and capricious."Id., at 49. If, as THE CHIEF JUSTICE contends, the undue burden test is made out of whole cloth, the so-called "arbitrary and capricious" limit is the Solicitor General's "new clothes."
Even if it is somehow "irrational" for a State to require a woman to risk her life for her child, what protection is offered for women who become pregnant through rape or incest? Is there anything arbitraryPage 943or capricious about a State's prohibiting the sins of the father from being visited upon his offspring?12
But, we are reassured, there is always the protection of the democratic process. While there is much to be praised about our democracy, our country, since its founding, has recognized that there are certain fundamental liberties that are not to be left to the whims of an election. A woman's right to reproductive choice is one of those fundamental liberties. Accordingly, that liberty need not seek refuge at the ballot box.
IV
In one sense, the Court's approach is worlds apart from that of THE CHIEF JUSTICE and JUSTICE SCALIA. And yet, in another sense, the distance between the two approaches is short — the distance is but a single vote.
I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today. That, I regret, may be exactly where the choice between the two worlds will be made.Page 944
I
In ruling on this litigation below, the Court of Appeals for the Third Circuit first observed that "this appeal does not directly implicateRoe;this case involves the regulation of abortions, rather than their outright prohibition."947 F.2d 682,687(1991). Accordingly, the court directed its attention to the question of the standard of review for abortion regulations. In attempting to settle on the correct standard, however, the court confronted the confused state of this Court's abortion jurisprudence. After considering the several opinions inWebster v. Reproductive Health Services, supra, andHodgson v. Minnesota,497 U.S. 417(1990), the Court of Appeals concluded that JUSTICE O'CONNOR's "undue burden" test was controlling, as that was the narrowest ground on which we had upheld recent abortion regulations.947 F.2d, at 693-697("When a fragmented court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds" (quotingMarks v. United States,430 U.S. 188,193(1977) (internal quotation marks omitted)). Applying this standard, the Court of Appeals upheld all of thePage 945challenged regulations except the one requiring a woman to notify her spouse of an intended abortion.
In arguing that this Court should invalidate each of the provisions at issue, petitioners insist that we reaffirm our decision inRoe v. Wade,supra, in which we held unconstitutional a Texas statute making it a crime to procure an abortion except to save the life of the mother.1We agree with the Court of Appeals that our decision inRoeis not directly implicated by the Pennsylvania statute, which does not prohibit, but simply regulates, abortion. But, as the Court of Appeals found, the state of our post-Roedecisional law dealing with the regulation of abortion is confusing and uncertain, indicating that a reexamination of that line of cases is in order. Unfortunately for those who must apply this Court's decisions, the reexamination undertaken today leaves the Court no less divided than beforehand. Although they reject the trimester framework that formed the underpinning ofRoe, JUSTICES O'CONNOR, KENNEDY, and SOUTER adopt a revised undue burden standard to analyze the challenged regulations. We conclude, however, that such an outcome is an unjustified constitutional compromise, one which leaves the Court in a position to closely scrutinize all types of abortion regulations despite the fact that it lacks the power to do so under the Constitution.
InRoe, the Court opined that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, . . . and that it has still another important and legitimate interest in protectingPage 946the potentiality of human life.410 U.S., at 162(emphasis omitted). In the companion case ofDoev. Bolton,410 U.S. 179(1973), the Court referred to its conclusion inRoe"that a pregnant woman does not have an absolute constitutional right to an abortion on her demand."410 U.S., at 189. But while the language and holdings of these cases appeared to leave States free to regulate abortion procedures in a variety of ways, later decisions based on them have found considerably less latitude for such regulations than might have been expected.
For example, afterRoe, many States have sought to protect their young citizens by requiring that a minor seeking an abortion involve her parents in the decision. Some States have simply required notification of the parents, while others have required a minor to obtain the consent of her parents. In a number of decisions, however, the Court has substantially limited the States in their ability to impose such requirements. With regard to parentalnoticerequirements, we initially held that a State could require a minor to notify her parents before proceeding with an abortion.H. L. v. Matheson,450 U.S. 398,407-410(1981). Recently, however, we indicated that a State's ability to impose a notice requirement actually depends on whether it requires notice of one or both parents. We concluded that, although the Constitution might allow a State to demand that notice be given to one parent prior to an abortion, it may not require that similar notice be given totwoparents, unless the State incorporates a judicial bypass procedure in that two-parent requirement.Hodgson v. Minnesota, supra.
We have treated parentalconsentprovisions even more harshly. Three years afterRoe, we invalidated a Missouri regulation requiring that an unmarried woman under the age of 18 obtain the consent of one of her parents before proceeding with an abortion. We held that our abortion jurisprudence prohibited the State from imposing such a "blanket provision . . . requiring the consent of a parent."Planned ParenthoodPage 947of Central Mo. v. Danforth,428 U.S. 52,74(1976). InBellotti v.Baird,443 U.S. 622(1979), the Court struck down a similar Massachusetts parental consent statute. A majority of the Court indicated, however, that a State could constitutionally require parental consent if it alternatively allowed a pregnant minor to obtain an abortion without parental consent by showing either that she was mature enough to make her own decision or that the abortion would be in her best interests. Seeid., at 643-644 (plurality opinion);id., at 656-657 (WHITE, J., dissenting). In light ofBellotti, we have upheld one parental consent regulation which incorporated a judicial bypass option we viewed as sufficient, seePlanned Parenthood Assn. of KansasCity, Mo., Inc. v. Ashcroft,462 U.S. 476(1983), but have invalidated another because of our belief that the judicial procedure did not satisfy the dictates of Bellotti, seeAkron v. Akron Center forReproductive Health, Inc.,462 U.S. 416,439-442(1983). We have never had occasion, as we have in the parental notice context, to further parse our parental consent Jurisprudence into one-parent and two-parent components.
InRoe, the Court observed that certain States recognized the right of the father to participate in the abortion decision in certain circumstances. Because neitherRoenorDoeinvolved the assertion of any paternal right, the Court expressly stated that the case did not disturb the validity of regulations that protected such a right.Roev. Wade, supra, at 165, n. 67. But three years later, inDanforth, the Court extended its abortion jurisprudence and held that a State could not require that a woman obtain the consent of her spouse before proceeding with an abortion.Planned Parenthood of Central Mo. v.Danforth,428 U.S., at 69-71.
States have also regularly tried to ensure that a woman's decision to have an abortion is an informed and well-considered one. InDanforth, we upheld a requirement that a woman sign a consent form prior to her abortion, and observed that "it is desirable and imperative that [thePage 948decision] be made with full knowledge of its nature and consequences."Id., at 67. Since that case, however, we have twice invalidated state statutes designed to impart such knowledge to a woman seeking an abortion. InAkron, we held unconstitutional a regulation requiring a physician to inform a woman seeking an abortion of the status of her pregnancy, the development of her fetus, the date of possible viability, the complications that could result from an abortion, and the availability of agencies providing assistance and information with respect to adoption and childbirth.Akron v. Akron Center forReproductive Health, supra, at 442-445. More recently, inThornburgh v. American College of Obstetricians and Gynecologists,476 U.S. 747(1986), we struck down a more limited Pennsylvania regulation requiring that a woman be informed of the risks associated with the abortion procedure and the assistance available to her if she decided to proceed with her pregnancy, because we saw the compelled information as "the antithesis of informed consent."Id., at 764. Even when a State has sought only to provide information that, in our view, was consistent with theRoeframework, we concluded that the State could not require that a physician furnish the information, but instead had to alternatively allow nonphysician counselors to provide it.Akron v.Akron Center for Reproductive Health,462 U.S., at 448-449. InAkronas well, we went further and held that a State may not require a physician to wait 24 hours to perform an abortion after receiving the consent of a woman. Although the State sought to ensure that the woman's decision was carefully considered, the Court concluded that the Constitution forbade the State to impose any sort of delay.Id., at 449-451.
We have not allowed States much leeway to regulate even the actual abortion procedure. Although a State can require that second-trimester abortions be performed in outpatient clinics, seeSimopoulos v.Virginia,462 U.S. 506(1983), we concluded inAkronandAshcroftthatPage 949a State could not require that such abortions be performed only in hospitals. SeeAkron v. Akron Center for Reproductive Health, supra, at 437-439;Planned Parenthood Assn. of Kansas City, Mo., Inc.v. Ashcroft, supra, at 481-482. Despite the fact thatRoeexpressly allowed regulation after the first trimester in furtherance of maternal health, "`present medical knowledge,'" in our view, could not justify such a hospitalization requirement under the trimester framework.Akron v. Akron Center for Reproductive Health, supra, at 437 (quotingRoe v. Wade, supra, at 163). And inDanforth, the Court held that Missouri could not outlaw the saline amniocentesis method of abortion, concluding that the Missouri Legislature had "failed to appreciate and to consider several significant facts" in making its decision.428 U.S., at 77.
AlthoughRoeallowed state regulation after the point of viability to protect the potential life of the fetus, the Court subsequently rejected attempts to regulate in this manner. InColautti v. Franklin,439 U.S. 379(1979), the Court struck down a statute that governed the determination of viability.Id., at 390-397. In the process, we made clear that the trimester framework incorporated only one definition of viability — ours — as we forbade States to decide that a certain objective indicator — "be it weeks of gestation or fetal weight or any other single factor" — should govern the definition of viability.Id., at 389. In that same case, we also invalidated a regulation requiring a physician to use the abortion technique offering the best chance for fetal survival when performing postviability abortions. Seeid., at 397-401; see alsoThornburgh v. American College of Obstetricians andGynecologists,476 U.S., at 768-769(invalidating a similar regulation). InThornburgh, the Court struck down Pennsylvania's requirement that a second physician be present at postviability abortions to help preserve the health of the unborn child, on the ground that it did not incorporate a sufficient medical emergency exception.Id., at 769-771. Regulations governing the treatment ofPage 950aborted fetuses have met a similar fate. InAkron, we invalidated a provision requiring physicians performing abortions to "insure that the remains of the unborn child are disposed of in a humane and sanitary manner."462 U.S., at 451(internal quotation marks omitted).
Dissents in these cases expressed the view that the Court was expanding uponRoein imposing ever greater restrictions on the States. SeeThornburgh v. American College of Obstetricians and Gynecologists,476 U.S., at 783(Burger, C.J., dissenting) ("The extent to which the Court has departed from the limitations expressed inRoeis readily apparent");id., at 814 (WHITE, J., dissenting) ("[T]he majority indiscriminately strikes down statutory provisions that in no way contravene the right recognized inRoe"). And, when confronted with state regulations of this type in past years, the Court has become increasingly more divided: The three most recent abortion cases have not commanded a Court opinion. SeeOhio v. Akron Center forReproductive Health,497 U.S. 502(1990);Hodgson v. Minnesota,497 U.S. 417(1990);Webster v. Reproductive Health Services,492 U.S. 490(1989).
The task of the Court of Appeals in the present cases was obviously complicated by this confusion and uncertainty. FollowingMarks v.United States,430 U.S. 188(1977), it concluded that, in light ofWebsterandHodgson, the strict scrutiny standard enunciated inRoewas no longer applicable, and that the "undue burden" standard adopted by JUSTICE O'CONNOR was the governing principle. This state of confusion and disagreement warrants reexamination of the "fundamental right" accorded to a woman's decision to abort a fetus inRoe, with its concomitant requirement that any state regulation of abortion survive "strict scrutiny." SeePayne v. Tennessee,501 U.S. 808,827-828(1991) (observing that reexamination of constitutional decisions is appropriate when those decisions have generated uncertainty and failed to provide clear guidance, because "correction through legislativePage 951action is practically impossible" (internal quotation marks omitted));Garcia v. San Antonio Metropolitan Transit Authority,469 U.S. 528,546-547,557(1985).
We have held that a liberty interest protected under the Due Process Clause of theFourteenthAmendment will be deemed fundamental if it is "implicit in the concept of ordered liberty."Palko v. Connecticut,302 U.S. 319,325(1937). Three years earlier, inSnyder v.Massachusetts,291 U.S. 97(1934), we referred to a "principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental."Id., at 105; see alsoMichael H. v. GeraldD.,491 U.S. 110,122(1989) (plurality opinion) (citing the language fromSnyder). These expressions are admittedly not precise, but our decisions implementing this notion of "fundamental" rights do not afford any more elaborate basis on which to base such a classification.
In construing the phrase "liberty" incorporated in the Due Process Clause of theFourteenthAmendment, we have recognized that its meaning extends beyond freedom from physical restraint. InPierce v. Societyof Sisters,268 U.S. 510(1925), we held that it included a parent's right to send a child to private school; inMeyer v. Nebraska,262 U.S. 390(1923), we held that it included a right to teach a foreign language in a parochial school. Building on these cases, we have held that the term "liberty" includes a right to marry,Loving v. Virginia,388 U.S. 1(1967); a right to procreate,Skinner v. Oklahoma ex rel.Williamson,316 U.S. 535(1942); and a right to use contraceptives,Griswold v. Connecticut,381 U.S. 479(1965);Eisenstadt v. Baird,405 U.S. 438(1972). But a reading of these opinions makes clear that they do not endorse any all-encompassing "right of privacy."
InRoe v. Wade, the Court recognized a "guarantee of personal privacy" which "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."410 U.S., at 152-153. We are now of the view that, in terming this right fundamental, the Court inRoeread thePage 952earlier opinions upon which it based its decision much too broadly. Unlike marriage, procreation, and contraception, abortion "involves the purposeful termination of a potential life."Harris v. McRae,448 U.S. 297,325(1980). The abortion decision must therefore be recognized assui generis, different in kind from the others that the Court has protected under the rubric of personal or family privacy and autonomy.Thornburgh v. American College of Obstetricians and Gynecologists,supra, at 792 (WHITE, J., dissenting). One cannot ignore the fact that a woman is not isolated in her pregnancy, and that the decision to abort necessarily involves the destruction of a fetus. SeeMichael H. v. Gerald D., supra, at 124, n. 4 (To look "at the act which is assertedly the subject of a liberty interest in isolation from its effect upon other people [is] like inquiring whether there is a liberty interest in firing a gun where the case at hand happens to involve its discharge into another person's body").
Nor do the historical traditions of the American people support the view that the right to terminate one's pregnancy is "fundamental." The common law which we inherited from England made abortion after "quickening" an offense. At the time of the adoption of theFourteenthAmendment, statutory prohibitions or restrictions on abortion were commonplace; in 1868, at least 28 of the then-37 States and 8 Territories had statutes banning or limiting abortion. J. Mohr, Abortion in America 200 (1978). By the turn of the century, virtually every State had a law prohibiting or restricting abortion on its books. By the middle of the present century, a liberalization trend had set in. But 21 of the restrictive abortion laws in effect in 1868 were still in effect in 1973 whenRoewas decided, and an overwhelming majority of the States prohibited abortion unless necessary to preserve the life or health of the mother.Roe v. Wade,410 U.S., at 139-140;id. at 176-177, n. 2 (REHNQUIST, J., dissenting). On this record, it can scarcely be said that any deeply rooted tradition of relatively unrestricted abortion in our history supported the classification ofPage 953the right to abortion as "fundamental" under the Due Process Clause of theFourteenthAmendment.
We think, therefore, both in view of this history and of our decided cases dealing with substantive liberty under the Due Process Clause, that the Court was mistaken inRoewhen it classified a woman's decision to terminate her pregnancy as a "fundamental right" that could be abridged only in a manner which withstood "strict scrutiny." In so concluding, we repeat the observation made inBowers v. Hardwick,478 U.S. 186(1986):
"Nor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause. The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution."Id., at 194.
We believe that the sort of constitutionally imposed abortion code of the type illustrated by our decisions followingRoeis inconsistent "with the notion of a Constitution cast in general terms, as ours is, and usually speaking in general principles, as ours does."Webster v.Reproductive Health Services,492 U.S., at 518(plurality opinion). The Court inRoereached too far when it analogized the right to abort a fetus to the rights involved inPierce, Meyer, Loving, andGriswold, and thereby deemed the right to abortion fundamental.
II
The joint opinion of Justices O'CONNOR, KENNEDY, and SOUTER cannot bring itself to say thatRoewas correct as an original matter, but the authors are of the view that the immediate question is not the soundness ofRoe'sresolution of the issue, but the precedential force that must be accorded to its holding.Ante, at 871. Instead of claiming thatRoewas correct as a matter of originalPage 954constitutional interpretation, the opinion therefore contains an elaborate discussion ofstare decisis. This discussion of the principle ofstare decisisappears to be almost entirely dicta, because the joint opinion does not apply that principle in dealing withRoe.Roedecided that a woman had a fundamental right to an abortion. The joint opinion rejects that view.Roedecided that abortion regulations were to be subjected to "strict scrutiny," and could be justified only in the light of "compelling state interests." The joint opinion rejects that view.Ante, at 872-873; seeRoe v. Wade, supra, at 162-164.Roeanalyzed abortion regulation under a rigid trimester framework, a framework which has guided this Court's decisionmaking for 19 years. The joint opinion rejects that framework.Ante, at 873.Stare decisisis defined in Black's Law Dictionary as meaning "to abide by, or adhere to, decided cases." Black's Law Dictionary 1406 (6th ed. 1990). Whatever the "central holding" ofRoethat is left after the joint opinion finishes dissecting it is surely not the result of that principle. While purporting to adhere to precedent, the joint opinion instead revises it.Roecontinues to exist, but only in the way a storefront on a western movie set exists: a mere facade to give the illusion of reality. Decisions followingRoe, such asAkron v. AkronCenter for Reproductive Health, Inc.,462 U.S. 416(1983), andThornburgh v. American College of Obstetricians and Gynecologists,476 U.S. 747(1986), are frankly overruled in part under the "undue burden" standard expounded in the joint opinion.Anteat 881-884.
In our view, authentic principles ofstare decisisdo not require that any portion of the reasoning inRoebe kept intact. "Stare decisisis not . . . a universal, inexorable command," especially in cases involving the interpretation of the Federal Constitution.Burnet v.Coronado Oil Gas Co.,285 U.S. 393,405(1932) (Brandeis, J., dissenting). Erroneous decisions in such constitutional cases are uniquely durable, because correction through legislative action, save forPage 955constitutional amendment, is impossible. It is therefore our duty to reconsider constitutional interpretations that "depar[t] from a proper understanding" of the Constitution.Garcia v. San AntonioMetropolitan Transit Authority,469 U.S., at 557; seeUnited States v.Scott,437 U.S. 82,101(1978) ("`[I]n cases involving the Federal Constitution, . . . [t]he Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function'" (quotingBurnet v. Coronado Oil Gas Co.,supra, at 406-408 (Brandeis, J., dissenting)));Smith v.Allwright,321 U.S. 649,665(1944). Our constitutional watch does not cease merely because we have spoken before on an issue; when it becomes clear that a prior constitutional interpretation is unsound, we are obliged to reexamine the question. See,e.g.,West Virginia Bd. of Ed. v. Barnette,319 U.S. 624,642(1943);Erie R. Co. v. Tompkins,304 U.S. 64,74-78(1938).
The joint opinion discusses severalstare decisisfactors which, it asserts, point toward retaining a portion ofRoe. Two of these factors are that the main "factual underpinning" ofRoehas remained the same, and that its doctrinal foundation is no weaker now than it was in 1973.Ante, at 857-860. Of course, what might be called the basic facts which gave rise toRoehave remained the same — women become pregnant, there is a point somewhere, depending on medical technology, where a fetus becomes viable, and women give birth to children. But this is only to say that the same facts which gave rise toRoewill continue to give rise to similar cases. It is not a reason, in and of itself, why those cases must be decided in the same incorrect manner as was the first case to deal with the question. And surely there is no requirement, in considering whether to depart fromstare decisisin a constitutional case, that a decision be more wrong now than it was at the time it was rendered. If that were true, the most outlandish constitutionalPage 956decision could survive forever, based simply on the fact that it was no more outlandish later than it was when originally rendered.
Nor does the joint opinion faithfully follow this alleged requirement. The opinion frankly concludes thatRoeand its progeny were wrong in failing to recognize that the State's interests in maternal health and in the protection of unborn human life exist throughout pregnancy.Ante, at 871-873. But there is no indication that these components ofRoeare any more incorrect at this juncture than they were at its inception.
The joint opinion also points to the reliance interests involved in this context in its effort to explain why precedent must be followed for precedent's sake. Certainly it is true that, where reliance is truly at issue, as in the case of judicial decisions that have formed the basis for private decisions, "[c]onsiderations in favor ofstaredecisisare at their acme."Payne v.Tennessee,501 U.S., at 828. But, as the joint opinion apparently agrees,ante, at 855-856, any traditional notion of reliance is not applicable here. The Court today cuts back on the protection afforded byRoe, and no one claims that this action defeats any reliance interest in the disavowed trimester framework. Similarly, reliance interests would not be diminished were the Court to go further and acknowledge the full error ofRoe, as "reproductive planning could take virtually immediate account of" this action.Ante, at 856.
The joint opinion thus turns to what can only be described as an unconventional — and unconvincing — notion of reliance, a view based on the surmise that the availability of abortion sinceRoehas led to "two decades of economic and social developments" that would be undercut if the error ofRoewere recognized.Ante, at 856. The joint opinion's assertion of this fact is undeveloped, and totally conclusory. In fact, one cannot be sure to what economic and social developments the opinion is referring. Surely it is dubious to suggest that women have reached their "places in society" inPage 957reliance uponRoe, rather than as a result of their determination to obtain higher education and compete with men in the job market, and of society's increasing recognition of their ability to fill positions that were previously thought to be reserved only for men.Ante, at 856.
In the end, having failed to put forth any evidence to prove any true reliance, the joint opinion's argument is based solely on generalized assertions about the national psyche, on a belief that the people of this country have grown accustomed to theRoedecision over the last 19 years and have "ordered their thinking and living around" it.Ante, at 856. As an initial matter, one might inquire how the joint opinion can view the "central holding" ofRoeas so deeply rooted in our constitutional culture when it so casually uproots and disposes of that same decision's trimester framework. Furthermore, at various points in the past, the same could have been said about this Court's erroneous decisions that the Constitution allowed "separate but equal" treatment of minorities, seePlessy v. Ferguson,163 U.S. 537(1896), or that "liberty" under the Due Process Clause protected "freedom of contract," seeAdkins v. Children's Hospital of District of Columbia,261 U.S. 525(1923);Lochnerv. New York,198 U.S. 45(1905). The "separate but equal" doctrine lasted 58 years afterPlessy, andLochner'sprotection of contractual freedom lasted 32 years. However, the simple fact that a generation or more had grown used to these major decisions did not prevent the Court from correcting its errors in those cases, nor should it prevent us from correctly interpreting the Constitution here. SeeBrown v. Boardof Education,347 U.S. 483(1954) (rejecting the "separate but equal" doctrine);West Coast Hotel Co. v. Parrish,300 U.S. 379(1937) (overrulingAdkins v. Children's Hospital, supra, in upholding Washington's minimum wage law).
Apparently realizing that conventionalstare decisisprinciples do not support its position, the joint opinion advances a belief that retaining a portion ofRoeis necessary to protectPage 958the "legitimacy" of this Court.Ante, at 861-869. Because the Court must take care to render decisions "grounded truly in principle," and not simply as political and social compromises,ante, at 865, the joint opinion properly declares it to be this Court's duty to ignore the public criticism and protest that may arise as a result of a decision. Few would quarrel with this statement, although it may be doubted that Members of this Court, holding their tenure as they do during constitutional "good behavior," are at all likely to be intimidated by such public protests.
But the joint opinion goes on to state that, when the Court "resolve[s] the sort of intensely divisive controversy reflected inRoeand those rare, comparable cases," its decision is exempt from reconsideration under established principles ofstare decisisin constitutional cases.Ante, at 866. This is so, the joint opinion contends, because, in those "intensely divisive" cases, the Court has call[ed] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution, and must therefore take special care not to be perceived as "surrender[ing] to political pressure" and continued opposition.Ante, at 866, 867. This is a truly novel principle, one which is contrary to both the Court's historical practice and to the Court's traditional willingness to tolerate criticism of its opinions. Under this principle, when the Court has ruled on a divisive issue, it is apparently prevented from overruling that decision for the sole reason that it was incorrect,unless opposition to the original decision has died away.
The first difficulty with this principle lies in its assumption that cases that are "intensely divisive" can be readily distinguished from those that are not. The question of whether a particular issue is "intensely divisive" enough to qualify for special protection is entirely subjective and dependent on the individual assumptions of the Members of this Court. In addition, because the Court's duty is to ignore public opinion and criticism on issues that come before it, itsPage 959Members are in perhaps the worst position to judge whether a decision divides the Nation deeply enough to justify such uncommon protection. Although many of the Court's decisions divide the populace to a large degree, we have not previously on that account shied away from applying normal rules ofstare decisiswhen urged to reconsider earlier decisions. Over the past 21 years, for example, the Court has overruled in whole or in part 34 of its previous constitutional decisions. SeePayne v. Tennessee, supra, at 828-830, and n. 1 (listing cases).
The joint opinion picks out and discusses two prior Court rulings that it believes are of the "intensely divisive" variety, and concludes that they are of comparable dimension toRoe.Ante, at 861-864 (discussingLochner v. New York, supra, andPlessyv. Ferguson, supra). It appears to us very odd indeed that the joint opinion chooses as benchmarks two cases in which the Court chosenotto adhere to erroneous constitutional precedent, but instead enhanced its stature by acknowledging and correcting its error, apparently in violation of the joint opinion's "legitimacy" principle. SeeWest Coast Hotel Co. v.Parrish, supra;Brown v. Board of Education, supra. One might also wonder how it is that the joint opinion puts these, and not others, in the "intensely divisive" category, and how it assumes that these are the only two lines of cases of comparable dimension toRoe. There is no reason to think that eitherPlessyorLochnerproduced the sort of public protest when they were decided thatRoedid. There were undoubtedly large segments of the bench and bar who agreed with the dissenting views in those cases, but surely that cannot be what the Court means when it uses the term "intensely divisive," or many other cases would have to be added to the list. In terms of public protest, however,Roe, so far as we know, was unique. But just as the Court should not respond to that sort of protest by retreating from the decision simply to allay the concerns of the protesters, it should likewise not respond by determining to adhere to thePage 960decision at all costs, lest itseemto be retreating under fire. Public protests should not alter the normal application ofstare decisis, lest perfectly lawful protest activity be penalized by the Court itself.
Taking the joint opinion on its own terms, we doubt that its distinction betweenRoe, on the one hand, andPlessyandLochner, on the other, withstands analysis. The joint opinion acknowledges that the Court improved its stature by overrulingPlessyinBrownon a deeply divisive issue. And our decision inWest Coast Hotel, which overruledAdkins v. Children's Hospital, supra, andLochner, was rendered at a time when Congress was considering President Franklin Roosevelt's proposal to "reorganize" this Court and enable him to name six additional Justices in the event that any Member of the Court over the age of 70 did not elect to retire. It is difficult to imagine a situation in which the Court would face more intense opposition to a prior ruling than it did at that time, and, under the general principle proclaimed in the joint opinion, the Court seemingly should have responded to this opposition by stubbornly refusing to reexamine theLochnerrationale, lest it lose legitimacy by appearing to "overrule under fire."Ante, at 867.
The joint opinion agrees that the Court's stature would have been seriously damaged if, inBrownandWest Coast Hotel, it had dug in its heels and refused to apply normal principles ofstare decisisto the earlier decisions. But the opinion contends that the Court was entitled to overrulePlessyandLochnerin those cases, despite the existence of opposition to the original decisions, only because both the Nation and the Court had learned new lessons in the interim. This is at best a feebly supportedpost hocrationalization for those decisions.
For example, the opinion asserts that the Court could justifiably overrule its decision inLochneronly because the Depression had convinced "most people" that constitutional protection of contractualPage 961freedom contributed to an economy that failed to protect the welfare of all.Ante, at 861. Surely the joint opinion does not mean to suggest that people saw this Court's failure to uphold minimum wage statutes as the cause of the Great Depression! In any event, theLochnerCourt did not base its rule upon the policy judgment that an unregulated market was fundamental to a stable economy; it simply believed, erroneously, that "liberty" under the Due Process Clause protected the "right to make a contract."Lochner v. New York,198 U.S., at 53. Nor is it the case that the people of this Nation only discovered the dangers of extremelaissez-faireeconomics because of the Depression. State laws regulating maximum hours and minimum wages were in existence well before that time. A Utah statute of that sort enacted in 1896 was involved in our decision inHolden v. Hardy,169 U.S. 366(1898), and other states followed suit shortly afterwards, see,e.g., Mullerv.Oregon,208 U.S. 412(1908);Bunting v. Oregon,243 U.S. 426(1917). These statutes were indeed enacted because of a belief on the part of their sponsors that "freedom of contract" did not protect the welfare of workers, demonstrating that that belief manifested itself more than a generation before the Great Depression. Whether "most people" had come to share it in the hard times of the 1930's is, insofar as anything the joint opinion advances, entirely speculative. The crucial failing at that time was not that workers were not paid a fair wage, but that there was no work available atanywage.
When the Court finally recognized its error inWest Coast Hotel, it did not engage in thepost hocrationalization that the joint opinion attributes to it today; it did not state thatLochnerhad been based on an economic view that had fallen into disfavor, and that it therefore should be overruled. Chief Justice Hughes, in his opinion for the Court, simply recognized what Justice Holmes had previously recognized in hisLochnerdissent, that "[t]he Constitution does not speak of freedom of contract."West Coast Hotel Co. v. Parrish,300 U.S., at 391;Lochner v. New York, supra, at 75 (Holmes,Page 962J., dissenting) ("[A] constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or oflaissez faire"). Although the Court did acknowledge in the last paragraph of its opinion the state of affairs during the then-current Depression, the theme of the opinion is that the Court had been mistaken as a matter of constitutional law when it embraced "freedom of contract" 32 years previously.
The joint opinion also agrees that the Court acted properly in rejecting the doctrine of "separate but equal" inBrown. In fact, the opinion laudsBrownin comparing it toRoe.Ante, at 867. This is strange, in that, under the opinion's "legitimacy" principle, the Court would seemingly have been forced to adhere to its erroneous decision inPlessybecause of its "intensely divisive" character. To us, adherence toRoetoday under the guise of "legitimacy" would seem to resemble more closely adherence toPlessyon the same ground. Fortunately, the Court did not choose that option inBrown, and instead frankly repudiatedPlessy. The joint opinion concludes that such repudiation was justified only because of newly discovered evidence that segregation had the effect of treating one race as inferior to another. But it can hardly be argued that this was not urged upon those who decidedPlessy, as JUSTICE Harlan observed in his dissent that the law at issue "puts the brand of servitude and degradation upon a large class of our fellow-citizens, our equals before the law."Plessy v.Ferguson,163 U.S., at 562. It is clear that the same arguments made before the Court inBrownwere made inPlessyas well. The Court inBrownsimply recognized, as Justice Harlan had recognized beforehand, that theFourteenthAmendment does not permit racial segregation. The rule ofBrownis not tied to popular opinion about the evils of segregation; it is a judgment that the Equal Protection Clause does not permit racial segregation, no matter whether the public might come to believe that it is beneficial. On that groundPage 963it stands, and on that ground alone the Court was justified in properly concluding that thePlessyCourt had erred.
There is also a suggestion in the joint opinion that the propriety of overruling a "divisive" decision depends in part on whether "most people" would now agree that it should be overruled. Either the demise of opposition or its progression to substantial popular agreement apparently is required to allow the Court to reconsider a divisive decision. How such agreement would be ascertained, short of a public opinion poll, the joint opinion does not say. But surely even the suggestion is totally at war with the idea of "legitimacy" in whose name it is invoked. The Judicial Branch derives its legitimacy not from following public opinion, but from deciding by its best lights whether legislative enactments of the popular branches of Government comport with the Constitution. The doctrine ofstaredecisisis an adjunct of this duty, and should be no more subject to the vagaries of public opinion than is the basic judicial task.
There are other reasons why the joint opinion's discussion of legitimacy is unconvincing, as well. In assuming that the Court is perceived as "surrender[ing] to political pressure" when it overrules a controversial decision,ante, at 867, the joint opinion forgets that there are two sides to any controversy. The joint opinion asserts that, in order to protect its legitimacy, the Court must refrain from overruling a controversial decision lest it be viewed as favoring those who oppose the decision. But a decision toadhereto prior precedent is subject to the same criticism, for, in such a case, one can easily argue that the Court is responding to those who have demonstrated in favor of the original decision. The decision inRoehas engendered large demonstrations, including repeated marches on this Court and on Congress, both in opposition to and in support of that opinion. A decision either way onRoecan therefore be perceived as favoring one group or the other. But this perceived dilemma arises only if one assumes, as the joint opinion does, that the CourtPage 964should make its decisions with a view toward speculative public perceptions. If one assumes instead, as the Court surely did in bothBrownandWest CoastHotel, that the Court's legitimacy is enhanced by faithful interpretation of the Constitution irrespective of public opposition, such self-engendered difficulties may be put to one side.Roeis not this Court's only decision to generate conflict. Our decisions in some recent capital cases, and inBowers v. Hardwick,478 U.S. 186(186), have also engendered demonstrations in opposition. The joint opinion's message to such protesters appears to be that they must cease their activities in order to serve their cause, because their protests will only cement in place a decision which, by normal standards ofstare decisis, should be reconsidered. Nearly a century ago, Justice David J. Brewer of this Court, in an article discussing criticism of its decisions, observed that "many criticisms may be, like their authors, devoid of good taste, but better all sorts of criticism than no criticism at all." Justice Brewer on "The Nation's Anchor," 57 Albany L.J. 166, 169 (1898). This was good advice to the Court then, as it is today. Strong and often misguided criticism of a decision should not render the decision immune from reconsideration, lest a fetish for legitimacy penalize freedom of expression.
The end result of the joint opinion's paeans of praise for legitimacy is the enunciation of a brand new standard for evaluating state regulation of a woman's right to abortion — the "undue burden" standard. As indicated above,Roe v. Wadeadopted a "fundamental right" standard under which state regulations could survive only if they met the requirement of "strict scrutiny." While we disagree with that standard, it at least had a recognized basis in constitutional law at the timeRoewas decided. The same cannot be said for the "undue burden" standard, which is created largely out of whole cloth by the authors of the joint opinion. It is a standard which even today does not command the support of a majority of this Court. And it will not,Page 965we believe, result in the sort of "simple limitation," easily applied, which the joint opinion anticipates.Ante, at 855. In sum, it is a standard which is not built to last.
In evaluating abortion regulations under that standard, judges will have to decide whether they place a "substantial obstacle" in the path of a woman seeking an abortion.Anteat 877. In that this standard is based even more on a judge's subjective determinations than was the trimester framework, the standard will do nothing to prevent "judges from roaming at large in the constitutional field," guided only by their personal views.Griswold v. Connecticut,381 U.S., at 502(Harlan, J., concurring in judgment). Because the undue burden standard is plucked from nowhere, the question of what is a "substantial obstacle" to abortion will undoubtedly engender a variety of conflicting views. For example, in the very matter before us now, the authors of the joint opinion would uphold Pennsylvania's 24-hour waiting period, concluding that a "particular burden" on some women is not a substantial obstacle.Ante, at 887. But the authors would at the same time strike down Pennsylvania's spousal notice provision, after finding that, in a "large fraction" of cases, the provision will be a substantial obstacle.Ante, at 895. And, while the authors conclude that the informed consent provisions do not constitute an "undue burden," JUSTICE STEVENS would hold that they do.Ante, at 920-922.
Furthermore, while striking down the spousalnoticeregulation, the joint opinion would uphold a parentalconsentrestriction that certainly places very substantial obstacles in the path of a minor's abortion choice. The joint opinion is forthright in admitting that it draws this distinction based on a policy judgment that parents will have the best interests of their children at heart, while the same is not necessarily true of husbands as to their wives.Ante, at 895. This may or may not be a correct judgment, but it is quintessentially a legislative one. The "undue burden" inquiry does not in any way supply the distinction between parental consent andPage 966spousal consent which the joint opinion adopts. Despite the efforts of the joint opinion, the undue burden standard presents nothing more workable than the trimester framework which it discards today. Under the guise of the Constitution, this Court will still impart its own preferences on the States in the form of a complex abortion code.
The sum of the joint opinion's labors in the name ofstare decisisand "legitimacy" is this:Roe v. Wadestands as a sort of judicial Potemkin Village, which may be pointed out to passers-by as a monument to the importance of adhering to precedent. But behind the facade, an entirely new method of analysis, without any roots in constitutional law, is imported to decide the constitutionality of state laws regulating abortion. Neitherstare decisisnor "legitimacy" are truly served by such an effort.
We have stated above our belief that the Constitution does not subject state abortion regulations to heightened scrutiny. Accordingly, we think that the correct analysis is that set forth by the plurality opinion inWebster. A woman's interest in having an abortion is a form of liberty protected by the Due Process Clause, but States may regulate abortion procedures in ways rationally related to a legitimate state interest.Williamson v. Lee Optical of Oklahoma, Inc.,348 U.S. 483,491(1955); cf.Stanley v. Illinois,405 U.S. 645,651-65(1972). With this rule in mind, we examine each of the challenged provisions.
III
A
Section 3205 of the Act imposes certain requirements related to the informed consent of a woman seeking an abortion. 18 Pa. Cons. Stat. § 3205 (1990). Section 3205(a)(1) requires that the referring or performing physician must inform a woman contemplating an abortion of (i) the nature of the procedure and the risks and alternatives that a reasonable patient would find material; (ii) the fetus' probablePage 967gestational age; and (iii) the medical risks involved in carrying her pregnancy to term. Section 3205(a)(2) requires a physician or a nonphysician counselor to inform the woman that (i) the state health department publishes free materials describing the fetus at different stages and listing abortion alternatives; (ii) medical assistance benefits may be available for prenatal, childbirth, and neonatal care; and (iii) the child's father is liable for child support. The Act also imposes a 24-hour waiting period between the time that the woman receives the required information and the time that the physician is allowed to perform the abortion. See Appendix to opinion of O'CONNOR, KENNEDY, and SOUTER, JJ.,ante, at 902-904.
This Court has held that it is certainly within the province of the States to require a woman's voluntary and informed consent to an abortion. SeeThornburghv.American College of Obstetricians andGynecologists,476 U.S., at 760. Here, Pennsylvania seeks to further its legitimate interest in obtaining informed consent by ensuring that each woman 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 make the alternative of normal childbirth more attractive than it might otherwise appear.Id., at 798-799 (WHITE, J., dissenting).
We conclude that this provision of the statute is rationally related to the State's interest in assuring that a woman's consent to an abortion be a fully informed decision.
Section 3205(a)(1) requires a physician to disclose certain information about the abortion procedure and its risks and alternatives. This requirement is certainly no large burden, as the Court of Appeals found that the record shows that the clinics, without exception, insist on providing this information to women before an abortion is performed.947 F.2d, at 703. We are of the view that this information "clearly is related to maternal health and to the State's legitimate purpose in requiring informed consent."Akron v.Page 968Akron Center for Reproductive Health, Inc.,462 U.S., at 446. An accurate description of the gestational age of the fetus and of the risks involved in carrying a child to term helps to further both those interests and the State's legitimate interest in unborn human life. Seeid., at 445-446, n. 37 (required disclosure of gestational age of the fetus "certainly is not objectionable"). Although petitioners contend that it is unreasonable for the State to require that a physician, as opposed to a nonphysician counselor, disclose this information, we agree with the Court of Appeals that a State may rationally decide that physicians are better qualified than counselors to impart this information and answer questions about the medical aspects of the available alternatives.947 F.2d, at 704.
Section 3205(a)(2) compels the disclosure, by a physician or a counselor, of information concerning the availability of paternal child support and state-funded alternatives if the woman decides to proceed with her pregnancy. Here again, the Court of Appeals observed that the record indicates that most clinics already require that a counselor consult in person with the woman about alternatives to abortion before the abortion is performed.Id., at 704-705. And petitioners do not claim that the information required to be disclosed by statute is in any way false or inaccurate; indeed, the Court of Appeals found it to be "relevant, accurate, and noninflammatory."Id., at 705. We conclude that this required presentation of "balanced information" is rationally related to the State's legitimate interest in ensuring that the woman's consent is truly informed,Thornburgh v. American College of Obstetricians andGynecologists,476 U.S., at 830(O'CONNOR, J., dissenting), and in addition furthers the State's interest in preserving unborn life. That the information might create some uncertainty and persuade some women to forgo abortions does not lead to the conclusion that the Constitution forbids the provision of such information. Indeed, it only demonstrates that this information mightPage 969very well make a difference, and that it is therefore relevant to a woman's informed choice. Cf.id., at 801 (WHITE, J., dissenting) ("[T]he ostensible objective ofRoe v. Wadeis not maximizing the number of abortions, but maximizing choice"). We acknowledge that, inThornburgh, this Court struck down informed consent requirements similar to the ones at issue here. Seeid., at 760-764. It is clear, however, that while the detailed framework ofRoeled to the Court's invalidation of those informational requirements, they "would have been sustained under any traditional standard of judicial review, . . . or for any other surgical procedure except abortion."Webster v. Reproductive Health Services,492 U.S., at 517(plurality opinion) (citingThornburgh v. American College ofObstetricians and Gynecologists,476 U.S., at 802(WHITE, J., dissenting);id., at 783 (Burger, C.J., dissenting)). In light of our rejection ofRoe's"fundamental right" approach to this subject, we do not regardThornburghas controlling.
For the same reason, we do not feel bound to follow this Court's previous holding that a State's 24-hour mandatory waiting period is unconstitutional. SeeAkron v. Akron Center for Reproductive Health,Inc., supra, at 449-451. Petitioners are correct that such a provision will result in delays for some women that might not otherwise exist, therefore placing a burden on their liberty. But the provision in no way prohibits abortions, and the informed consent and waiting period requirements do not apply in the case of a medical emergency. See 18 Pa. Cons. Stat. §§ 3205(a), (b) (1990). We are of the view that, in providing time for reflection and reconsideration, the waiting period helps ensure that a woman's decision to abort is a well-considered one, and reasonably furthers the State's legitimate interest in maternal health and in the unborn life of the fetus. It "is surely a small cost to impose to ensure that the woman's decision is well-considered inPage 970light of its certain and irreparable consequences on fetal life, and the possible effects on her own.462 U.S., at 474(O'CONNOR, J., dissenting).
B
In addition to providing her own informed consent, before an unemancipated woman under the age of 18 may obtain an abortion, she must either furnish the consent of one of her parents or must opt for the judicial procedure that allows her to bypass the consent requirement. Under the judicial bypass option, a minor can obtain an abortion if a state court finds that she is capable of giving her informed consent, and has indeed given such consent, or determines that an abortion is in her best interests. Records of these court proceedings are kept confidential. The Act directs the state trial court to render a decision within three days of the woman's application, and the entire procedure, including appeal to Pennsylvania Superior Court, is to last no longer than eight business days. The parental consent requirement does not apply in the case of a medical emergency. 18 Pa. Cons. Stat. § 3206 (1990). See Appendix to opinion of O'CONNOR, KENNEDY, and SOUTER, JJ.,ante, at 904-906.
This provision is entirely consistent with this Court's previous decisions involving parental consent requirements. SeePlannedParenthood Ass. of Kansas City, Mo., Inc. v. Ashcroft,462 U.S. 476(1983) (upholding parental consent requirement with a similar judicial bypass option);Akron v. Akron Center for Reproductive Health,Inc., supra, at 439-440 (approving of parental consent statutes that include a judicial bypass option allowing a pregnant minor to "demonstrate that she is sufficiently mature to make the abortion decision herself or that, despite her immaturity, an abortion would be in her best interests");Bellotti v. Baird,443 U.S. 622(1979).
We think it beyond dispute that a State has a strong and legitimate interest in the welfare of its young citizens, whose immaturity, inexperience, and lack of judgment may sometimesPage 971impair their ability to exercise their rights wisely.Hodgson v.Minnesota,497 U.S., at 444(opinion of STEVENS, J.). A requirement of parental consent to abortion, like myriad other restrictions placed upon minors in other contexts, is reasonably designed to further this important and legitimate state interest. In our view, it is entirely rational and fair for the State to conclude that, in most instances, the family will strive to give a lonely or even terrified minor advice that is both compassionate and mature.Ohio v. Akron Center forReproductive Health,497 U.S., at 520(opinion of KENNEDY, J.); see alsoPlanned Parenthood of Central Mo. v. Danforth,428 U.S., at 91(Stewart, J., concurring) ("There can be little doubt that the State furthers a constitutionally permissible end by encouraging an unmarried pregnant minor to seek the help and advice of her parents in making the very important decision whether or not to bear a child"). We thus conclude that Pennsylvania's parental consent requirement should be upheld.
C
Section 3209 of the Act contains the spousal notification provision. It requires that, before a physician may perform an abortion on a married woman, the woman must sign a statement indicating that she has notified her husband of her planned abortion. A woman is not required to notify her husband if (1) her husband is not the father, (2) her husband, after diligent effort, cannot be located, (3) the pregnancy is the result of a spousal sexual assault that has been reported to the authorities, or (4) the woman has reason to believe that notifying her husband is likely to result in the infliction of bodily injury upon her by him or by another individual. In addition, a woman is exempted from the notification requirement in the case of a medical emergency. 18 Pa. Cons. Stat. § 3209 (1990). See Appendix to opinion of O'Connor, Kennedy, and Souter, JJ.,ante, at 908-909.Page 972
We first emphasize that Pennsylvania has not imposed a spousal consent requirement of the type the Court struck down inPlanned Parenthood ofCentral Mo. v. Danforth,428 U.S., at 67-72. Missouri's spousal consent provision was invalidated in that case because of the Court's view that it unconstitutionally granted to the husband "a veto power exercisable for any reason whatsoever or for no reason at all."Id., at 71. But the provision here involves a much less intrusive requirement of spousalnotification, not consent. Such a law requiring only notice to the husband does not give any third party the legal right to make the [woman's] decision for her, or to prevent her from obtaining an abortion should she choose to have one performed.Hodgson v. Minnesota, supra, at 496 (KENNEDY, J., concurring in judgment in part and dissenting in part); seeH.L. v.Matheson,450 U.S., at 411, n. 17.Danforththus does not control our analysis. Petitioners contend that it should, however; they argue that the real effect of such a notice requirement is to give the power to husbands to veto a woman's abortion choice. The District Court indeed found that the notification provision created a risk that some woman who would otherwise have an abortion will be prevented from having one.947 F.2d, at 712. For example, petitioners argue, many notified husbands will prevent abortions through physical force, psychological coercion, and other types of threats. But Pennsylvania has incorporated exceptions in the notice provision in an attempt to deal with these problems. For instance, a woman need not notify her husband if the pregnancy is the result of a reported sexual assault, or if she has reason to believe that she would suffer bodily injury as a result of the notification. 18 Pa. Cons. Stat. § 3209(b) (1990). Furthermore, because this is a facial challenge to the Act, it is insufficient for petitioners to show that the notification provision "might operate unconstitutionally under some conceivable set of circumstances."United States v. Salerno,481 U.S. 739,745(1987). Thus, it is notPage 973enough for petitioners to show that, in some "worst case" circumstances, the notice provision will operate as a grant of veto power to husbands.Ohio v. Akron Center for Reproductive Health,497 U.S., at 514. Because they are making a facial challenge to the provision, they must "show that no set of circumstances exists under which the [provision] would be valid."Ibid. (internal quotation marks omitted). This they have failed to do.2Page 974
The question before us is therefore whether the spousal notification requirement rationally furthers any legitimate state interests. We conclude that it does. First, a husband's interests in procreation within marriage and in the potential life of his unborn child are certainly substantial ones. SeePlanned Parenthood of Central Mo. v.Danforth,428 U.S., at 69("We are not unaware of the deep and proper concern and interest that a devoted and protective husband has in his wife's pregnancy and in the growth and development of the fetus she is carrying");id., at 93 (WHITE, J., concurring in part and dissenting in part);Skinner v. Oklahoma ex rel. Williamson,316 U.S., at 541. The State itself has legitimate interests both in protecting these interests of the father and in protecting the potential life of the fetus, and the spousal notification requirement is reasonably related to advancing those state interests. By providing that a husband will usually know of his spouse's intent to have an abortion, the provision makes it more likely that the husband will participate in deciding the fate of his unborn child, a possibility that might otherwise have been denied him. This participation might in some cases result in a decision to proceed with the pregnancy. As Judge Alito observed in his dissent below, [t]he Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems — such as economic constraints, future plans, or the husbands'Page 975previously expressed opposition — that may be obviated by discussion prior to the abortion.947 F.2d, at 726(opinion concurring in part and dissenting in part).
The State also has a legitimate interest in promoting "the integrity of the marital relationship." 18 Pa. Cons. Stat. § 3209(a) (1990). This Court has previously recognized "the importance of the marital relationship in our society."Planned Parenthood of Central Mo. v.Danforth, supra, at 69. In our view, the spousal notice requirement is a rational attempt by the State to improve truthful communication between spouses and encourage collaborative decisionmaking, and thereby fosters marital integrity. SeeLabine v. Vincent,401 U.S. 532,538(1971) ("[T]he power to make rules to establish, protect, and strengthen family life" is committed to the state legislatures). Petitioners argue that the notification requirement does not further any such interest; they assert that the majority of wives already notify their husbands of their abortion decisions, and the remainder have excellent reasons for keeping their decisions a secret. In the first case, they argue, the law is unnecessary, and in the second case it will only serve to foster marital discord and threats of harm. Thus, petitioners see the law as a totally irrational means of furthering whatever legitimate interest the State might have. But, in our view, it is unrealistic to assume that every husband-wife relationship is either (1) so perfect that this type of truthful and important communication will take place as a matter of course, or (2) so imperfect that, upon notice, the husband will react selfishly, violently, or contrary to the best interests of his wife. SeePlanned Parenthood of Central Mo. v. Danforth, supra, at 103-104 (STEVENS, J., concurring in part and dissenting in part) (making a similar point in the context of a parental consent statute). The spousal notice provision will admittedly be unnecessary in some circumstances, and possibly harmful in others, but the existence of particular cases in which a feature of a statute performs no function (or is even counterproductive)Page 976ordinarily does not render the statute unconstitutional or even constitutionally suspect.Thornburgh v. American College ofObstetricians and Gynecologists,476 U.S., at 800(WHITE, J., dissenting). The Pennsylvania Legislature was in a position to weigh the likely benefits of the provision against its likely adverse effects, and presumably concluded, on balance, that the provision would be beneficial. Whether this was a wise decision or not, we cannot say that it was irrational. We therefore conclude that the spousal notice provision comports with the Constitution. SeeHarris v.McRae,448 U.S., at 325-326("It is not the mission of this Court or any other to decide whether the balance of competing interests . . . is wise social policy").
D
The Act also imposes various reporting requirements. Section 3214(a) requires that abortion facilities file a report on each abortion performed. The reports do not include the identity of the women on whom abortions are performed, but they do contain a variety of information about the abortions. For example, each report must include the identities of the performing and referring physicians, the gestational age of the fetus at the time of abortion, and the basis for any medical judgment that a medical emergency existed. See 18 Pa. Cons. Stat. §§ 3214(a)(1), (5), (10) (1990). See Appendix to opinion of O'Connor, Kennedy, and Souter, JJ.,ante, at 909-911. The District Court found that these reports are kept completely confidential.947 F.2d, at 716. We further conclude that these reporting requirements rationally further the State's legitimate interests in advancing the state of medical knowledge concerning maternal health and prenatal life, in gathering statistical information with respect to patients, and in ensuring compliance with other provisions of the Act.
Section 3207 of the Act requires each abortion facility to file a report with its name and address, as well as the namesPage 977and addresses of any parent, subsidiary, or affiliated organizations. 18 Pa. Cons. Stat. § 3207(b) (1990). Section 3214(f) further requires each facility to file quarterly reports stating the total number of abortions performed, broken down by trimester. Both of these reports are available to the public only if the facility received state funds within the preceding 12 months. See Appendix to opinion of O'Connor, Kennedy, and Souter, JJ.,ante, at 906, 911. Petitioners do not challenge the requirement that facilities provide this information. They contend, however, that the forced public disclosure of the information given by facilities receiving public funds serves no legitimate state interest. We disagree. Records relating to the expenditure of public funds are generally available to the public under Pennsylvania law. See Pa. Stat. Ann., Tit. 65, §§ 66.1, 66.2 (Purdon 1959 and Supp. 1991-1992). As the Court of Appeals observed, "[w]hen a state provides money to a private commercial enterprise, there is a legitimate public interest in informing taxpayers who the funds are benefiting and what services the funds are supporting."947 F.2d, at 718. These reporting requirements rationally further this legitimate state interest.
E
Finally, petitioners challenge the medical emergency exception provided for by the Act. The existence of a medical emergency exempts compliance with the Act's informed consent, parental consent, and spousal notice requirements. See 18 Pa. Cons. Stat. §§ 3205(a), 3206(a), 3209(c) (1990). The Act defines a "medical emergency" as
"[t]hat condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will createPage 978serious risk of substantial and irreversible impairment of major bodily function." § 3203.
Petitioners argued before the District Court that the statutory definition was inadequate because it did not cover three serious conditions that pregnant women can suffer — preeclampsia, inevitable abortion, and prematurely ruptured membrane. The District Court agreed with petitioners that the medical emergency exception was inadequate, but the Court of Appeals reversed this holding. In construing the medical emergency provision, the Court of Appeals first observed that all three conditions do indeed present the risk of serious injury or death when an abortion is not performed, and noted that the medical profession's uniformly prescribed treatment for each of the three conditions is an immediate abortion. See947 F.2d, at 700-701. Finding that "[t]he Pennsylvania legislature did not choose the wording of its medical emergency exception in a vacuum," the court read the exception as intended to assure that compliance with its abortion regulations would not in any way pose a significant threat to the life or health of a woman.Id., at 701. It thus concluded that the exception encompassed each of the three dangerous conditions pointed to by petitioners.
We observe that Pennsylvania's present definition of medical emergency is almost an exact copy of that State's definition at the time of this Court's ruling inThornburgh, one which the Court made reference to with apparent approval.476 U.S., at 771("It is clear that the Pennsylvania Legislature knows how to provide a medical emergency exception when it chooses to do so").3We find that thePage 979interpretation of the Court of Appeals in these cases is eminently reasonable, and that the provision thus should be upheld. When a woman is faced with any condition that poses a "significant threat to [her] life or health," she is exempted from the Act's consent and notice requirements, and may proceed immediately with her abortion.
IV
For the reasons stated, we therefore would hold that each of the challenged provisions of the Pennsylvania statute is consistent with the Constitution. It bears emphasis that our conclusion in this regard does not carry with it any necessary approval of these regulations. Our task is, as always, to decide only whether the challenged provisions of a law comport with the United States Constitution. If, as we believe, these do, their wisdom as a matter of public policy is for the people of Pennsylvania to decide.
That is, quite simply, the issue in these cases: not whether the power of a woman to abort her unborn child is a "liberty" in the absolute sense; or even whether it is a liberty of great importance to many women. Of course it is both. The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the "concept of existence, of meaning, of the universe, and of the mystery of human life."Ibid. Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected — because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed.1Akron II, supra, at 520 (SCALIA, J., concurring).Page 981
The Court destroys the proposition, evidently meant to represent my position, that "liberty" includes only those practices, defined at the most specific level, that were protected against government interference by other rules of law when theFourteenthAmendment was ratified,ante, at 847 (citingMichael H. v. Gerald D.,491 U.S. 110,127, n. 6 (1989) (opinion of SCALIA, J.). That is not, however, whatMichaelH. says; it merely observes that, in defining "liberty," we may not disregard a specific, "relevant tradition protecting, or denying protection to, the asserted right,"ibid. But the Court does not wish to be fettered by any such limitations on its preferences. The Court's statement that it is "tempting" to acknowledge the authoritativeness of tradition in order to "cur[b] the discretion of federal judges,"ante, at 847, is, of course, rhetoric rather than reality; no government official is "tempted" to place restraints upon his own freedom of action, which is why Lord Acton did not say "Power tends to purify." The Court's temptation is in the quite opposite and more natural direction — towards systematically eliminating checks upon its own power; and it succumbs.
Beyond that brief summary of the essence of my position, I will not swell the United States Reports with repetition of what I have said before; and applying the rational basis test, I would uphold the Pennsylvania statute in its entirety. I must, however, respond to a few of the more outrageous arguments in today's opinion, which it is beyond human nature to leave unanswered. I shall discuss each of them under a quotation from the Court's opinion to which they pertain.
"The inescapable fact is that adjudication of substantive dueprocess claims may call upon the Court,Page 982in interpreting the Constitution, to exercise that same capacitywhich, by tradition, courts always have exercised: reasonedjudgment".Ante, at 849.
Assuming that the question before us is to be resolved at such a level of philosophical abstraction, in such isolation from the traditions of American society, as by simply applying "reasoned judgment," I do not see how that could possibly have produced the answer the Court arrived at inRoe v. Wade,410 U.S. 113(1973). Today's opinion describes the methodology ofRoe, quite accurately, as weighing against the woman's interest the State's "`important and legitimate interest in protecting the potentiality of human life.'"Ante, at 871 (quotingRoe, supra, at 162). But "reasoned judgment" does not begin by begging the question, asRoeand subsequent cases unquestionably did by assuming that what the State is protecting is the mere "potentiality of human life." See,e.g., Roe, supra, at 162;Planned Parenthood of Central Mo. v.Danforth,428 U.S. 52,61(1976);Colautti v. Franklin,439 U.S. 379,386(1979);Akron v. Akron Center for Reproductive Health, Inc.,462 U.S. 416,428(1983) (Akron I);Planned Parenthood Assn. of KansasCity, Mo., Inc. v. Ashcroft,462 U.S. 476,482(1983). The whole argument of abortion opponents is that what the Court calls the fetus and what others call the unborn childis a human life. Thus, whatever answerRoecame up with after conducting its "balancing" is bound to be wrong, unless it is correct that the human fetus is in some critical sense merely potentially human. There is, of course, no way to determine that as a legal matter; it is, in fact, a value judgment. Some societies have considered newborn children not yet human, or the incompetent elderly no longer so.
The authors of the joint opinion, of course, do not squarely contend thatRoe v. Wadewas acorrectapplication of "reasoned judgment"; merely that it must be followed, because ofstare decisis.Ante, at 853, 861, 871. But in their exhaustive discussion of all the factors that goPage 983into the determination of whenstare decisisshould be observed and when disregarded, they never mention "how wrong was the decision on its face?" Surely, if "[t]he Court's power lies . . . in its legitimacy, a product of substance and perception,"ante, at 865, the "substance" part of the equation demands that plain error be acknowledged and eliminated.Roewas plainly wrong — even on the Court's methodology of "reasoned judgment," and even more so (of course) if the proper criteria of text and tradition are applied.
The emptiness of the "reasoned judgment" that producedRoeis displayed in plain view by the fact that, after more than 19 years of effort by some of the brightest (and most determined) legal minds in the country, after more than 10 cases upholding abortion rights in this Court, and after dozens upon dozens ofamicusbriefs submitted in these and other cases, the best the Court can do to explain how it is that the word "liberty"mustbe thought to include the right to destroy human fetuses is to rattle off a collection of adjectives that simply decorate a value judgment and conceal a political choice. The right to abort, we are told, inheres in "liberty" because it is among "a person's most basic decisions,"ante, at 849; it involves a "most intimate and personal choic[e],"ante, at 851; it is "central to personal dignity and autonomy,"ibid.;it "originate[s] within the zone of conscience and belief,"ante, at 852 it is "too intimate and personal" for state interference,ibid.;, it reflects "intimate views" of a "deep, personal character,"ante, at 853; it involves "intimate relationships" and notions of "personal autonomy and bodily integrity,"ante, at 857; and it concerns a particularly "`important decisio[n],'"ante, at 859 (citation omitted).2But it is obvious to anyone applying "reasonedPage 984judgment" that the same adjectives can be applied to many forms of conduct that this Court (including one of the Justices in today's majority, seeBowers v. Hardwick,478 U.S. 186(1986)) has held arenotentitled to constitutional protection — because, like abortion, they are forms of conduct that have long been criminalized in American society. Those adjectives might be applied, for example, to homosexual sodomy, polygamy, adult incest, and suicide, all of which are equally "intimate" and "deep[ly] personal" decisions involving "personal autonomy and bodily integrity," and all of which can constitutionally be proscribed because it is our unquestionable constitutional tradition that they are proscribable. It is not reasoned judgment that supports the Court's decision; only personal predilection. Justice Curtis' warning is as timely today as it was 135 years ago:
"[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean."Dred Scott v. Sandford, 19 How. 393, 621 (1857) (dissenting opinion).
Liberty finds no refuge in a jurisprudence of doubt.Ante, at 844.
One might have feared to encounter this august and sonorous phrase in an opinion defending the realRoe v. Wade, rather than the revised version fabricated today by the authors of the joint opinion. ThePage 985shortcomings ofRoedid not include lack of clarity: virtually all regulation of abortion before the third trimester was invalid. But to come across this phrase in the joint opinion — which calls upon federal district judges to apply an "undue burden" standard as doubtful in application as it is unprincipled in origin — is really more than one should have to bear.
The joint opinion frankly concedes that the amorphous concept of "undue burden" has been inconsistently applied by the Members of this Court in the few brief years since that "test" was first explicitly propounded by JUSTICE O'CONNOR in her dissent inAkron I, See462 U.S. 416(1983). Seeanteat 876.3Because the three Justices now wish to "set forth a standard of general application," the joint opinion announces that "it is important to clarify what is meant by an undue burden."Ibid. I certainly agree with that, but I do not agree that the joint opinion succeeds in the announced endeavor. ToPage 986the contrary, its efforts at clarification make clear only that the standard is inherently manipulable, and will prove hopelessly unworkable in practice.
The joint opinion explains that a state regulation imposes an "undue burden" if it "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."Ante, at 877; see alsoante, at 877-879. An obstacle is "substantial," we are told, if it is "calculated[,] [not] to inform the woman's free choice, [but to] hinder it."Ante, at 877.4This latterPage 987statement cannot possibly mean what it says.Anyregulation of abortion that is intended to advance what the joint opinion concedes is the State's "substantial" interest in protecting unborn life will be "calculated [to] hinder" a decision to have an abortion. It thus seems more accurate to say that the joint opinion would uphold abortion regulations only if they do notundulyhinder the woman's decision. That, of course, brings us right back to square one: defining an "undue burden" as an "undue hindrance" (or a "substantial obstacle") hardly "clarifies" the test. Consciously or not, the joint opinion's verbal shell game will conceal raw judicial policy choices concerning what is "appropriate" abortion legislation.
The ultimately standardless nature of the "undue burden" inquiry is a reflection of the underlying fact that the concept has no principled or coherent legal basis. As THE CHIEF JUSTICE points out,Roe'sstrict scrutiny standard "at least had a recognized basis in constitutional law at the timeRoewas decided,"ante, at 964, while "[t]he same cannot be said for the "undue burden" standard, which is created largely out of whole cloth by the authors of the joint opinion,"ibid. The joint opinion is flatly wrong in asserting that "our jurisprudence relating to all liberties save perhaps abortion has recognized" the permissibility of laws that do not impose an "undue burden."Ante, at 873. It argues that the abortion right is similar to other rights in that a law not designed to strike at the right itself, [but which] has the incidental effect of making it more difficult or more expensive to [exercise the right,] is not invalid.Ante, at 874. I agree, indeed I have forcefully urged, that a law of generalPage 988applicability which places only an incidental burden on a fundamental right does not infringe that right, seeR.A.V. v. St. Paul,505 U.S. 377, (1992);Employment Div.,Dept. of Human Resources of Ore. v.Smith,494 U.S. 872,878-882(1990), but that principle does not establish the quite different (and quite dangerous) proposition that a law whichdirectlyregulates a fundamental right will not be found to violate the Constitution unless it imposes an "undue burden." It is that, of course, which is at issue here: Pennsylvania hasconsciously and directlyregulated conduct that our cases have held is constitutionally protected. The appropriate analogy, therefore, is that of a state law requiring purchasers of religious books to endure a 24-hour waiting period, or to pay a nominal additional tax of 1¢. The joint opinion cannot possibly be correct in suggesting that we would uphold such legislation on the ground that it does not impose a "substantial obstacle" to the exercise ofFirstAmendment rights. The "undue burden" standard is not at all the generally applicable principle the joint opinion pretends it to be; rather, it is a unique concept created specially for these cases, to preserve some judicial foothold in this ill-gotten territory. In claiming otherwise, the three Justices show their willingness to place all constitutional rights at risk in an effort to preserve what they deem the "central holding inRoe."Ante, at 873.
The rootless nature of the "undue burden" standard, a phrase plucked out of context from our earlier abortion decisions, see n. 3,supra, is further reflected in the fact that the joint opinion finds it necessary expressly to repudiate the more narrow formulations used in JUSTICE O'CONNOR's earlier opinions.Ante, at 876-877. Those opinions stated that a statute imposes an "undue burden" if it imposes "absoluteobstacles orseverelimitations on the abortion decision,"Akron I,462 U.S., at 464(dissenting opinion) (emphasis added); see alsoThornburgh v.American College of Obstetricians and Gynecologists,476 U.S. 747,828Page 989(1986) (dissenting opinion). Those strong adjectives are conspicuously missing from the joint opinion, whose authors have, for some unexplained reason, now determined that a burden is "undue" if it merely imposes a "substantial" obstacle to abortion decisions. See,e.g.,ante, at 895, 901. JUSTICE O'CONNOR has also abandoned (again without explanation) the view she expressed inPlanned Parenthood Assn. ofKansas City, Mo., Inc. v. Ashcroft,462 U.S. 476(1983) (dissenting opinion), that a medical regulation which imposes an "undue burden" could nevertheless be upheld if it "reasonably relate[s] to the preservation and protection of maternal health,"id., at 505 (citation and internal quotation marks omitted). In today's version, even health measures will be upheld only "if they do not constitute an undueburden," ante, at 878 (emphasis added). Gone too is JUSTICE O'CONNOR's statement that "the State possessescompellinginterests in the protection of potential human life . . . throughout pregnancy,"AkronI, supra, at 461 (dissenting opinion) (emphasis added); see alsoAshcroft, supra, at 505 (O'CONNOR, J., concurring in judgment in part and dissenting in part);Thornburgh, supra, at 828 (O'CONNOR, J., dissenting); instead, the State's interest in unborn human life is stealthily downgraded to a merely "substantial" or "profound" interest,ante, at 876, 878. (That had to be done, of course, since designating the interest as "compelling" throughout pregnancy would have been, shall we say, a "substantial obstacle" to the joint opinion's determined effort to reaffirm what it views as the "central holding" ofRoe. SeeAkronI,462 U.S., at 420, n. 1). And "viability" is no longer the "arbitrary" dividing line previously decried by JUSTICE O'CONNOR inAkron I, id., at 461; the Court now announces that "the attainment of viability may continue to serve as the critical fact,"ante, at 860.5Page 990It is difficult to maintain the illusion that we are interpreting a Constitution, rather than inventing one, when we amend its provisions so breezily.
Because the portion of the joint opinion adopting and describing the undue burden test provides no more useful guidance than the empty phrases discussed above, one must turn to 23 pages applying that standard to the present facts, for further guidance. In evaluating Pennsylvania's abortion law, the joint opinion relies extensively on the factual findings of the District Court, and repeatedly qualifies its conclusions by noting that they are contingent upon the record developed in these cases. Thus, the joint opinion would uphold the 24-hour waiting period contained in the Pennsylvania statute's informed consent provision, 18 Pa. Cons. Stat. § 3205 (1990), because "the record evidence shows that, in the vast majority of cases, a 24-hour delay does not create any appreciable health risk,"ante, at 885. The three Justices therefore conclude that, "on the record before us, . . . we are not convinced that the 24-hour waiting period constitutes an undue burden."Ante, at 887. The requirement that a doctor provide the information pertinent to informed consent would also be upheld because there is no evidence on this record that [this requirement] would amount, in practical terms, to a substantial obstacle to a woman seeking an abortion.Ante, at 884. Similarly, the joint opinion would uphold the reporting requirements of the Act, §§ 3207, 3214, because "there is no . . . showing on the record before us" that these requirements constitute a "substantial obstacle"Page 991to abortion decisions.Ante, at 901. But, at the same time, the opinion pointedly observes that these reporting requirements may increase the costs of abortions, and that "at some point, [that fact] could become a substantial obstacle."Ibid. Most significantly, the joint opinion's conclusion that the spousal notice requirement of the Act, see § 3209, imposes an "undue burden" is based in large measure on the District Court's "detailed findings of fact," which the joint opinion sets out at great length,ante, at 888-891.
I do not, of course, have any objection to the notion that, in applying legal principles, one should rely only upon the facts that are contained in the record or that are properly subject to judicial notice.6But what is remarkable about the joint opinion's fact-intensive analysis is that it does not result in any measurable clarification of the "undue burden" standard. Rather, the approach of the joint opinion is, for the most part, simply to highlight certain facts in the record that apparently strike the three Justices as particularly significant in establishing (or refuting) the existence of an undue burden; after describing these facts, the opinion then simply announces that the provision either does or does not impose a "substantial obstacle" or an "undue burden." See,e.g., ante, at 880, 884-885, 887, 893-894, 895, 901. We do not know whether the same conclusions could have been reached on a different record, or in what respects the record would have had to differ before an opposite conclusionPage 992would have been appropriate. The inherently standardless nature of this inquiry invites the district judge to give effect to his personal preferences about abortion. By finding and relying upon the right facts, he can invalidate, it would seem, almost any abortion restriction that strikes him as "undue" — subject, of course, to the possibility of being reversed by a Court of Appeals or Supreme Court that is as unconstrained in reviewing his decision as he was in making it.
To the extent I can discern any meaningful content in the "undue burden" standard as applied in the joint opinion, it appears to be that a State may not regulate abortion in such a way as to reduce significantly its incidence. The joint opinion repeatedly emphasizes that an important factor in the "undue burden" analysis is whether the regulation "prevent[s] a significant number of women from obtaining an abortion,"ante, at 893; whether a "significant number of women . . . are likely to be deterred from procuring an abortion,"ante, at 894; and whether the regulation often "deters" women from seeking abortions,ante, at 897. We are not told, however, what forms of "deterrence" are impermissible or what degree of success in deterrence is too much to be tolerated. If, for example, a State required a woman to read a pamphlet describing, with illustrations, the facts of fetal development before she could obtain an abortion, the effect of such legislation might be to "deter" a "significant number of women" from procuring abortions, thereby seemingly allowing a district judge to invalidate it as an undue burden. Thus, despite flowery rhetoric about the State's "substantial" and "profound" interest in "potential human life," and criticism ofRoefor undervaluing that interest, the joint opinion permits the State to pursue that interest only so long as it is not too successful. As JUSTICE BLACKMUN recognizes (with evident hope),ante, at 926, the "undue burden" standard may ultimately require the invalidation of each provision upheld today if it can be shown, on a better record, that the State is too effectively "express[ing] aPage 993preference for childbirth over abortion,"ante, at 883. Reason finds no refuge in this jurisprudence of confusion.
"While we appreciate the weight of the arguments . . . thatRoeshould be overruled, the reservations any of us may have inreaffirming the central holding ofRoeare outweighed by theexplication of individual liberty we have given combined with theforce ofstare decisis.Ante, at 853.
The Court's reliance uponstare decisiscan best be described as contrived. It insists upon the necessity of adhering not to all ofRoe, but only to what it calls the "central holding." It seems to me thatstare decisisought to be applied even to the doctrine ofstaredecisis, and I confess never to have heard of this new, keep-what-you-want-and-throw-away-the-rest version. I wonder whether, as applied toMarbury v. Madison, 1 Cranch 137 (1803), for example, the new version ofstare decisiswould be satisfied if we allowed courts to review the constitutionality of only those statutes that (like the one inMarbury) pertain to the jurisdiction of the courts.
I am certainly not in a good position to dispute that the Courthassavedthe "central holding" ofRoe, since, to do that effectively, I would have to know what the Court has saved, which in turn would require me to understand (as I do not) what the "undue burden" test means. I must confess, however, that I have always thought, and I think a lot of other people have always thought, that the arbitrary trimester framework, which the Court today discards, was quite as central toRoeas the arbitrary viability test, which the Court today retains. It seems particularly ungrateful to carve the trimester framework out of the core ofRoe, since its very rigidity (in sharp contrast to the utter indeterminability of the "undue burden" test) is probably the only reason the Court is able to say, in urgingstaredecisis, thatRoe"has in no sense proven `unworkable,'"ante, at 855.Page 994I suppose the Court is entitled to call a "central holding" whatever it wants to call a "central holding" — which is, come to think of it, perhaps one of the difficulties with this modified version ofstaredecisis. I thought I might note, however, that the following portions ofRoehave not been saved:
* UnderRoe, requiring that a woman seeking an abortion be provided truthful information about abortion before giving informed written consent is unconstitutional if the information is designed to influence her choice.Thornburgh,476 U.S., at 759-765;Akron I,462 U.S., at 442-445. Under the joint opinion's "undue burden" regime (as applied today, at least) such a requirement is constitutional.Ante, at 881-885.
* UnderRoe, requiring that information be provided by a doctor, rather than by nonphysician counselors, is unconstitutional.Akron I, supra, at 446-449. Under the "undue burden" regime (as applied today, at least) it is not.Ante, at 884-885.
* UnderRoe, requiring a 24-hour waiting period between the time the woman gives her informed consent and the time of the abortion is unconstitutional.Akron I, supra, at 449-451. Under the "undue burden" regime (as applied today, at least) it is not.Ante, at 885-887.
* UnderRoe, requiring detailed reports that include demographic data about each woman who seeks an abortion and various information about each abortion is unconstitutional.Thornburgh, supra, at 765-768. Under the "undue burden" regime (as applied today, at least) it generally is not.Anteat 900-901.
"Where, in the performance of its judicial duties, the Court decides acase in such a way as to resolve the sort of intensely divisivecontroversy reflected inRoe. . ., its decision has a dimension thatthe resolution of the normal case does not carry. It is the dimensionpresent whenever the Court's interpretation of the Constitution callsthe contending sides of a national controversy to end their nationalPage 995division by accepting a common mandate rooted in the Constitution.Ante, at 866-867.
The Court's description of the place ofRoein the social history of the United States is unrecognizable. Not only didRoenot, as the Court suggests,resolvethe deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level, where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress beforeRoe v. Wadewas decided. Profound disagreement existed among our citizens over the issue — as it does over other issues, such as the death penalty — but that disagreement was being worked out at the state level. As with many other issues, the division of sentiment within each State was not as closely balanced as it was among the population of the Nation as a whole, meaning not only that more people would be satisfied with the results of state-by-state resolution, but also that those results would be more stable. Pre-Roe, moreover, political compromise was possible.Roe'smandate for abortion on demand destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level. At the same time,Roecreated a vast new class of abortion consumers and abortion proponents by eliminating the moral opprobrium that had attached to the act. ("If the Constitutionguaranteesabortion, how can it be bad?" — not an accurate line of thought, but a natural one.) Many favor all of those developments, and it is not for me to say that they are wrong. But to portrayRoeas the statesmanlike "settlement" of a divisive issue, a jurisprudential Peace of Westphalia that is worth preserving, is nothing less than Orwellian.Roefanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court,Page 996in particular, ever since. And by keeping us in the abortion-umpiring business, it is the perpetuation of that disruption, rather than of anyPax Roeanathat the Court's new majority decrees.
"[T]o overrule under fire . . . would subvert the Court'slegitimacy. . ..
". . . To all those who will be . . . tested by following, the Courtimplicitly undertakes to remain steadfast. . . . The promise ofconstancy, once given, binds its maker for as long as the powerto stand by the decision survives and . . . the commitment [isnot] obsolete. . ..
"[The American people's] belief in themselves as . . . a people[who aspire to live according to the rule of law] is not readilyseparable from their understanding of the Court invested with theauthority to decide their constitutional cases and speak beforeall others for their constitutional ideals. If the Court'slegitimacy should be undermined, then so would the country be inits very ability to see itself through its constitutional ideals."Ante, at 867-868.
The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life-tenured judges — leading a Volk who will be "tested by following," and whose very "belief in themselves" is mystically bound up in their "understanding" of a Court that "speak[s] before all others for their constitutional ideals" — with the somewhat more modest role envisioned for these lawyers by the Founders.
"The judiciary . . . has . . . no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will, but merely judgment. . . ." The Federalist No. 78, pp. 393-394 (G. Wills ed. 1982).
Or, again, to compare this ecstasy of a Supreme Court in which there is, especially on controversial matters, no shadow of change or hint ofPage 997alteration ("There is a limit to the amount of error that can plausibly be imputed to prior Courts,"ante, at 866), with the more democratic views of a more humble man:
"[T]he candid citizen must confess that, if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal." A. Lincoln, First Inaugural Address (Mar. 4, 1861), reprinted in Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, p. 139 (1989).
It is particularly difficult, in the circumstances of the present decision, to sit still for the Court's lengthy lecture upon the virtues of "constancy,"ante, at 868, of "remain[ing] steadfast,"ibid.;,, and adhering to "principle,"ante, passim. Among the five Justices who purportedly adhere toRoe, at most three agree upon theprinciplethat constitutes adherence (the joint opinion's "undue burden" standard) — and that principle is inconsistent withRoe. See410 U.S., at 154-156.7To make matters worse, two of the three, in order thus to remain steadfast, had to abandon previously stated positions. See n. 4,supra;seesupraat 988-990. It is beyond me how the Court expects these accommodations to be accepted as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make.Ante, at 865-866. The only principle the Court "adheres"Page 998to, it seems to me, is the principle that the Court must be seen as standing byRoe. That is not a principle of law (which is what I thought the Court was talking about), but a principle ofRealpolitik— and a wrong one, at that.
I cannot agree with, indeed I am appalled by, the Court's suggestion that the decision whether to stand by an erroneous constitutional decision must be strongly influenced —againstoverruling, no less — by the substantial and continuing public opposition the decision has generated. The Court's judgment that any other course would "subvert the Court's legitimacy" must be another consequence of reading the error-filled history book that described the deeply divided country brought together byRoe. In my history book, the Court was covered with dishonor and deprived of legitimacy byDred Scott v. Sandford, 19 How. 393 (1857), an erroneous (and widely opposed) opinion that it did not abandon, rather than byWest Coast Hotel Co. v.Parrish,300 U.S. 379(1937), which produced the famous "switch in time" from the Court's erroneous (and widely opposed) constitutional opposition to the social measures of the New Deal. BothDred Scottand one line of the cases resisting the New Deal rested upon the concept of "substantive due process" that the Court praises and employs today. Indeed,Dred Scottwas very possibly the first application of substantive due process in the Supreme Court, the original precedent forLochner v. New YorkandRoe v. Wade. D. Currie, The Constitution in the Supreme Court 271 (1985) (footnotes omitted).
But whether it would "subvert the Court's legitimacy" or not, the notion that we would decide a case differently from the way we otherwise would have in order to show that we can stand firm against public disapproval is frightening. It is a bad enough idea, even in the head of someone like me, who believes that the text of the Constitution, and our traditions, say what they say and there is no fiddling with them. But when it is in the mind of a Court that believes the ConstitutionPage 999has an evolving meaning, seeante, at 848; that theNinthAmendment's reference to "othe[r]" rights is not a disclaimer, but a charter for action,ibid.;and that the function of this Court is to "speak before all others for [the people's] constitutional ideals" unrestrained by meaningful text or tradition — then the notion that the Court must adhere to a decision for as long as the decision faces "great opposition" and the Court is "under fire" acquires a character of almost czarist arrogance. We are offended by these marchers who descend upon us, every year on the anniversary ofRoe, to protest our saying that the Constitution requires what our society has never thought the Constitution requires. These people who refuse to be "tested by following" must be taught a lesson. We have no Cossacks, but at least we can stubbornly refuse to abandon an erroneous opinion that we might otherwise change — to show how little they intimidate us.
Of course, as THE CHIEF JUSTICE points out, we have been subjected to what the Court calls "`political pressure'" by both sides of this issue.Ante, at 963. Maybe today's decisionnotto overruleRoewill be seen as buckling to pressure fromthatdirection. Instead of engaging in the hopeless task of predicting public perception — a job not for lawyers but for political campaign managers — the Justices should do what islegallyright by asking two questions: (1) WasRoecorrectly decided? (2) HasRoesucceeded in producing a settled body of law? If the answer to both questions is no,Roeshould undoubtedly be overruled.
In truth, I am as distressed as the Court is — and expressed my distress several years ago, seeWebster,492 U.S., at 535— about the "political pressure" directed to the Court: the marches, the mail, the protests aimed at inducing us to change our opinions. How upsetting it is, that so many of our citizens (good people, not lawless ones, on both sides of this abortion issue, and on various sides of other issues as well) think that we Justices should properly take into accountPage 1000their views, as though we were engaged not in ascertaining an objective law, but in determining some kind of social consensus. The Court would profit, I think, from giving less attention to thefactof this distressing phenomenon, and more attention to thecauseof it. That cause permeates today's opinion: a new mode of constitutional adjudication that relies not upon text and traditional practice to determine the law, but upon what the Court calls "reasoned judgment,"ante, at 849, which turns out to be nothing but philosophical predilection and moral intuition. All manner of "liberties," the Court tells us, inhere in the Constitution, and are enforceable by this Court — not just those mentioned in the text or established in the traditions of our society.Ante, at 847-849. Why even theNinthAmendment — which says only that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" — is, despite our contrary understanding for almost 200 years, a literally boundless source of additional, unnamed, unhinted-at "rights," definable and enforceable by us, through "reasoned judgment."Ante, at 848-849.
What makes all this relevant to the bothersome application of "political pressure" against the Court are the twin facts that the American people love democracy and the American people are not fools. As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers' work up here — reading text and discerning our society's traditional understanding of that text — the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality, our process of constitutional adjudication consists primarily of makingvalue judgments;if we can ignore a long and clear tradition clarifying an ambiguous text, as we did, for example, five days ago in declaring unconstitutional invocations and benedictions at public high school graduation ceremonies,Lee v. Weisman,505 U.S. 577(1992); if, as I say, our pronouncement of constitutional law rests primarilyPage 1001on value judgments, then a free and intelligent people's attitude towards us can be expected to be (oughtto be) quite different. The people know that their value judgments are quite as good as those taught in any law school — maybe better. If, indeed, the "liberties" protected by the Constitution are, as the Court says, undefined and unbounded, then the peopleshoulddemonstrate, to protest that we do not implementtheirvalues instead ofours. Not only that, but the confirmation hearings for new Justicesshoulddeteriorate into question-and-answer sessions in which Senators go through a list of their constituents' most favored and most disfavored alleged constitutional rights, and seek the nominee's commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidentally committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward. JUSTICE BLACKMUN not only regards this prospect with equanimity, he solicits it.Ante, at 943.
* * *
There is a poignant aspect to today's opinion. Its length, and what might be called its epic tone, suggest that its authors believe they are bringing to an end a troublesome era in the history of our Nation, and of our Court. "It is the dimension" of authority, they say, to cal[l] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.Ante, at 867.
There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82nd year of his life, the 24th of his Chief Justiceship, the second after his opinion inDred Scott. He is in black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair. He sits facing the viewer and staring straight out. TherePage 1002seems to be on his face, and in his deep-set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the lustre of his great Chief Justiceship came to be eclipsed byDred Scottcannot help believing that he had that case — its already apparent consequences for the Court and its soon-to-be-played-out consequences for the Nation — burning on his mind. I expect that, two years earlier, he, too, had thought himself call[ing] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.
It is no more realistic for us in this litigation, than it was for him in that to think that an issue of the sort they both involved — an issue involving life and death, freedom and subjugation — can be "speedily and finally settled" by the Supreme Court, as President James Buchanan, in his inaugural address, said the issue of slavery in the territories would be. See Inaugural Addresses of the Presidents of the United States, S.Doc. No. 101-10, p. 126 (1989). Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.
We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.Page 1003
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