Thornburgh v. American College of Obstetricians and Gynecologists

THORNBURGH, GOVERNOR OF PENNSYLVANIA, et AMERICAN COLLEGE OF OBSTETRICIANS

al.

AND GYNECOLOGISTS et al. Argued No. 84-495. November 1985 Decided June Blackmun, J., opinion Court, delivered the Brennan, in which Marshall, Powell, Stevens, JJ., joined. Stevens, and J., filed a con- curring opinion, Burger, post, p. J., 772. C. dissenting opinion, filed a White, J., post, p. 782. dissenting opinion, filed a Rehnquist, in which J., joined, post, p. O’Connor, J., 785. dissenting opinion, filed a in which Rehnquist, J., joined, post, p. 814.

Andrew Gordon, S. Senior Deputy General of Attorney Pennsylvania, argued the cause for With him appellants. the briefs were LeRoy Zimmerman, S. Attorney General, and Allen Warshaw, C. Chief Deputy General. Attorney Kolbert

Kathryn argued cause for With her appellees. on the brief was Thomas E. Zemaitis.*

* Briefs of amid curiae urging reversal were filed for the United States by Fried, Acting Acting Solicitor General Attorney Assistant General Wil lard, Deputy Kuhl, Cordes, Attorney Assistant General John F. and John Rogers; M. Right Committee, Inc., for the National by to Life James Jr.; Bopp, for the by United States Catholic Conference R. Caron Wilfred Mark E. Chopko; and for Humphrey by Senator Gordon J. et al. Robert A. Uddo; Bowes, Jr., Destro and Basile J. for Watson D. by et al. Steven McDowell; Frederick and for D. by John Lane et al. E. John McKeever.

Briefs of urging amici curiae Attorney affirmance were filed for the Abrams, by Attorney General, se, General New York Robert pro Robert Hermann, General, Rhodes, Solicitor Rosemarie Attorney Assistant Gen- eral, Kahn, Cohen, Olson, and Lawrence S. M. and Martha J. As- Sanford Attorneys General; sistant for the by American Civil Liberties Union et al. Hunter, Nan D. Janet Lynn; and Suzanne M. for the American Benshoof of the Court. opinion delivered Justice Blackmun from a United States judgment This an appeal the Third Circuit the District reviewing for Appeals Court of for preliminary injunction. a motion rulings Court’s upon held unconstitutional several provi- of Appeals Act, Control current Abortion Pennsylvania’s sions codified as Pa. Cons. Stat. Laws, Pa. Act No. now seq. (1982).1 §3201 et ruled invalid provisions by Among § “in- relating were Appeals portions the Court of §3208, information”; “printed consent”; concerning formed 3210(b) abortions; with having postviability §§ and to do (c), 3211(a) 3214(a) § §§ and (h), regarding reporting and and requirements.2 Heineman, Jr., by Phil- Benjamin W. Carter G. Medical Association et al. Minow, Lawton, Klein, I. Bierig, Stephan R. E. Joel lips, Newton N. Jack Allen; Jr., Keyes, Ann for Center Joseph A. and E. for Constitutional Taub, Simon, by Copelon, Rights Anne E. Nadine Rhonda and Ju- et al. by Levin; Shapiro, I. for the National Abortion Federation David Sid- dith Simon, Dickstein, Amy Applegate; M. for the Na-

ney Kenneth and G. Miller; by Lynn Rights League Action et al. I. for the tional Abortion Association, Inc., Family by Planning Reproductive Health National Crothers; Organization for et Robert T. for the National Women al. Thompson; Planned Parenthood Federation of Amer- Diane E. ica, Inc., Klassel Eve W. Paul. et al. Dara Psychological Briefs curiae were filed for the American Associa- of amici Ennis; by Lawyers’ N. and Bruce for the tion Donald J. Women’s Bersoff California, Schwartz, by et Angeles, of Los al. Susan R. Carol Association Loder; Gordon, Boyk, and Lorraine for the Unitarian Universalist Judith Kochen; by by Bob et al. Madeline for Senator Packwood et al. Association Sullivan; by H. Tribe Kathleen M. for Susan Bandes et al. Laurence and Kinoy; Bopp, and Gans et al. Jr. Arthur for Olivia James enjoined only preliminarily 1 The had held invalid and had District Court 3205(a)(2) requirement elapse § at least 24 hours must between receipt specified performance of a woman’s information and the her abor 1982). (ED 791, 797-798, Supp. 811 Pa. tion. 552 F. 2 3215(e) § invalid. That re Appeals also held section available, quires premium, policies to make at a lesser health-care insurers necessary excluding coverage expressly “for abortion services to avert

751 I approved by Act was The Abortion Control the Governor By 11, the Commonwealth on 1982. its own terms, June § however, Act, see 7 of the it was to become effective days following thereafter, is, 180 on the December 8. It pending regu- had been offered as an amendment to a bill to paramilitary training. late attempt,

The 1982Act was not the Commonwealth’s first after this Court’s 1973 decisions in Roe 410 Wade, v. U. S. impose Bolton, 179, and Doe v. 410 U. S. abortion re post-1973 Act, straints. The State’s first Abortion Control passed was Laws, 1974 Pa. Act No. 1974 over the litigation, provi veto. After extensive various Governor’s unconstitutional, sions of the 1974statute were ruled includ ing relating spousal parental consent, those or to the procedure postviability choice of for a and to abortion, proscription of abortion advertisements. Planned Par See (ED Fitzpatrick, Supp. enthood Assn. v. 401 F. 554 Pa. 1975),summarily part Fitzger aff’d in sub nom. Franklin v. (1976), summarily part ald, 428 U. S. 901 vacated in (1976), sub nom. Beal v. Franklin, remanded 428 U. S. 901 (No. 74-2440) (ED 1977), modified on remand Pa. aff’d sub (1979). Franklin, nom. v. 439 379 Colautti U. S. See also 1975). (MD Supp. Doe Zimmerman, v. 405 F. Pa. Pennsylvania Legislature attempted In 1978, to re- by limiting strict access to abortion medical-assistance fund- ing procedure. (pp. Laws, for the 1978 Pa. Act No. 16A 1506-1507) Laws, effort, and 1978Pa. Act No. 148. This successfully challenged Roe too, court, was federal (ED 1978), Casey, Supp. judgment 464 F. Pa. was affirmed the Third Circuit. 623 F. 2d 829 legislation proposed Pennsyl- In 1981, abortion was pending vania House as an amendment to a bill to out- Senate pregnancies by rape in- the death of woman or to terminate caused 3215(e) § ruling This is not before us. cest.” suggested competitions.”3 amendment, “tough-guy The law patterned limiting a stat- after model abortions, was aimed at nonprofit Chicago-based, developed by anti-abortion ute organization. Abortion Note, Toward Constitutional See Approach, Pennsylvania Legislation: Dick. L. The Control (1983). further underwent The bill 382, n. 84 373, Rev. change passed, legislative process was but, when in the (CA3 283, 288-289 737 F. 2d See vetoed the Governor. 1984). Finally, and formulated, enacted, 1982Act was approved. passage date, before its effective Act, of the but

After the litigation present Dis- the United States was instituted Pennsylvania. The Eastern District of for the trict Court plaintiffs, appellees American here, were the are the who Pennsylvania Gynecologists, College of Obstetricians Pennsylvania; clergy- physicians licensed Section; certain Pennsylvania purchases in- from a who an individual men; extending disability to abor- insurance health-care and surer providers. Pennsylvania abortion counselors tions; and Alleging Consti- Act violated the United States that the § sought plaintiffs, pursuant 1983, to U. S. C. tution, declaratory injunctive named relief. The defendants complaint Commonwealth, in the were Governor Attorney District for officials, and the other Commonwealth Montgomery County, Pa. preliminary promptly plaintiffs a motion for a filed

The accompanied injunction. Forty-one the motion. affidavits part, what the Court of their submitted defendants, comprehensive opposing equally Appeals as “an described 289. The District Court then 2d, 737 F. memorandum.” “stipulation parties submit a of uncontested ordered parties produced local rule. The facts,” as authorized plain- “solely purposes stipulation of a determination on persons competition” physical bout between “tough-guy A is a contact experience attempt render each other un professional and who who lack Note, 87 Dick. L. Rev. n. 84 See conscious.

753 preliminary injunction,” preju- tiffs’ motion for and “without any party’s right any prove dice to any to controvert facts or to any proceeding additional facts at later in this action.” App. 9a-10a.

Relying substantially opinions respective on the Appeals Reproductive Courts of in Akron Health, Center for (CA6 City 1981), Inc. v. Akron, 651 F. 2d 1198 later aff’d part part, (1983), in in and rev’d 462 U. S. 416 in and City Planned Parenthood Assn. Kansas v. 655 Ashcroft, (CA8 1981), part part, F. 2d 848 later aff’d and rev’d 462 (1983), U. 476 S. the District Court that, concluded with one exception, supra, plaintiffs see n. had failed to estab 1, lish a likelihood of success on the merits and thus were not preliminary injunctive Supp. entitled to (1982). relief. 552 F. Appellees appealed preliminary from the denial of the in junction, appellants cross-appealed respect and with to the single statutory provision as to which the District Court had granted appellees’ allowed relief. The Third Circuit then enjoin pending ap motion to enforcement of the entire Act peal. expedited briefing argument, After the court judgment pending anticipated withheld decisions supra, supra, Simopoulos in Akron, Ashcroft, v. (1981), Commonwealth, Va. 277 S. E. 2d 194 all of accepted argued, which had here, been for review had been and were under submission. Those three cases were decided by this Court on June 1983. See Akron Akron v. Center Reproductive Health, Inc., 462 U. S. Planned Parenthood 416; City, As sn. Missouri, Kansas Inc. v. Ashcroft, Simopoulos Virginia, 462 U. 476; S. 462 U. S. 506. After reargument light Appeals, decisions, of those the Court of judge concurring part dissenting part, with one provisions ruled that various of the Act were unconstitu (1984). Appellants’ petition tional. 737 F. 2d 283 for re hearing judges voting grant en denied, banc was with four petition. jurisdictional Id., at 316, 317. When a state- postponed further consideration of here, we ment was filed hearing jurisdiction question on the merits. our 471 U. S.

II initially question whether we with the are confronted We Appellants purport jurisdiction appellate in this ease. have appeal pursuant to 28 taken their to this Court to have 1254(2).4 parties appear § and the clear, It seems U. S. C. judgment Appellants agree, that the 21, Brief for see ordinary judgment Appeals not a final the Court of was meaning did not hold the entire Act of that term. The court provisions ruled, instead, that some unconstitutional, but Simopoulos, and Akron, Ashcroft, under and were invalid provisions might depend validity on evi- that the of other trial, 2d, 299-300, at the see 737 F. at dence adduced promulgated by Supreme procedural Court rules to be Pennsylvania, at 296-297. It remanded these id., see Id., District at 304. features of the case to the Court. (1929), 189-190 O’Connor, 188, v. 278 U. S.

Slaker (1891),surely suggest 661, 141U. S. 665-666 McLish v. Roff appellate circumstances, we do not have that, under these jurisdiction.5 also Carolina Electric & Gas Co. See South (1956). authority Although Flemming, 351 U. 901 v. S. questioned, Electric has and South Carolina been of Slaker unnecessary put the issue the Court to date has found Inn, 422 Inc., 922, Doran v. Salem U. S. 927 to rest. See (1975); Playtime Theatres, Inc., 41, Renton 475 U. S. v. (1986). raising 1 In some cases this issue of the 43-44, n. 4 part: pertinent 1254 reads in Section appeals may by Supreme in the courts of be reviewed Court

“Cases by following methods:

“(2) party relying by By appeal on a State statute held a court of Constitution, appeals repugnant as to the treaties or laws of to be invalid . . . .” the United States 5 10, Appellants Slaker Appellants ask that be overruled. See Brief for 22-25.

755 the Court has found final jurisdiction, any scope appellate to have been satisfied of the facts. ity light requirement g., Dukes, e. New Orleans v. 297, (1976); 427 U. S. 302 See, Chicago Atchison, T. F. R. Co., & S. 357 82-83 v. U. S. (1958). In has avoided the issue cases, other See, §2103 certiorari. granting U. S. C. utilizing g., Simmons, e. El Paso v. Doran, S., 422 U. at 927; County Escambia v. McMil (1965); U. S. see also lan, n. 4 48, 50, 466 U. S. that it is time that undecided issue

We have concluded this of McLish hold, therefore on the reasoning be resolved. We Roff, S., 665-668, U. a situation such as is not the case is one, final, where the where judgment facts, further we have no development remanded for 1254(2). § under appellate jurisdiction treat statement appellants’ jurisdictional We nevertheless certiorari, writ, as and move on to the grant a petition merits.6

Ill in assert that the Court of erred hold- Appeals Appellants of its scope of the Act unconstitutional since ing portions District Court’s denial of a preliminary injunc- review of the as to those sections should have been limited to deter- tion in trial discretion finding whether the court abused its mining of harm and a probability or absence presence irreparable on the limited that the would succeed merits. Such plaintiffs Inn, see Doran v. Salem review is normally appropriate, Chote, Brown v. Inc., 411 452, 422 at U. S. S., 931-932; U. of a (1973), prelimi- 456-457 inasmuch as the primary purpose the relative of the preserve positions is nary injunction University Texas Camenisch, 451 U. S. v. See parties. of (1981). Further, 395 for 390, necessity expeditious on a pro- often means that the issued injunction resolution 6 continue, however, parties appellants appel to refer to the as We lees, respectively.

756 prevails stringent at the sub that which than

cedure less injunctive application sequent for the merits of the trial on Corp. Assn. v. Fraternal States Steel relief. See United (CA3 1970); see also Steelhaulers, 431 F. 2d Canning Highlands Mayo Co., 309 U. S. v. Lakeland approach, This The is not inflexible. Court however, approved proceedings has occasion this area more than one Youngstown deviating In & the stated norm. Sheet from (1952), Sawyer, the District Court v. 343 U. S. Tube Co. Secretary injunction restraining preliminary issued a had seizing steel mills. The from the Nation’s of Commerce Appeals stayed injunction. This Court found Court of despite early stage ripe review, case was for that the litigation, Id., the merits. and went on to address Works, Iron 165 U. S. 518 585. And Smith Vulcan (1897), injunctions patent District Court issued two accounting. and referred them to a Master cases Appeals This ruled that the Court reversed. Court deciding Appeals properly in the merits since re- had acted interlocutory designed only permit appeals was view to obtain immediate relief but also certain the defendant expense litigation. parties of further cases to save Id., at 525. decision to address the constitutional

The Third Circuit’s support ity Pennsylvania Act finds further of the unconstitutionality decisions that when the Court’s challenge particular clear, action under a federal state addressing need not abstain from the constitutional court g., Bailey pending e. v. Pat See, state-court review. issue (1962); City Memphis, 31, Turner v. terson, 369 U. S. (1962); 241, Zwickler v. 389 U. S. 350, Koota, 369 353 U. S. (1967). Singleton 14 also v. 428 U. S. 251, n. See Wulff (1976). generally Spann, Simple 73 Justice, 121 106, See (1985).7 1041, 1055, L. n. 77 Geo. J.

7 analogy in an established doctrine of adminis principle This finds an Chenery Corp., (1943), 80 SEC In v. 318 U. S. Court trative law.

757 ruling if Thus, indicate, as these cases a district court’s solely premise applicable a rests on as to rule of law, and controlling the facts are established or ruling may noof relevance, though appeal be reviewed even is from the entry preliminary injunction.8 Appeals of a The of Court properly recognized applied principles this case these when it observed: although appeal ruling

“Thus, quest this arises from on a re- preliminary injunction, for a have we before us unusually complete legal presentation factual and from important which to address the constitutional at issues customary stake. discretion accorded to a District ruling preliminary injunction yields on Court’s to our plenary scope applicable of review as to the law.” 737 F. at 290. 2d, appeals ordinarily

That a court will limit its in a review orderly ju- case of kind to abuse of rule discretion is a power. judicial dicial administration, not a limit on aWith full it on record before now us, issues before and with the intervening Simopoulos in Akron, decisions Ashcroft, Appeals justified proceeding hand, at was plenary review those issues. reviewing

ruled that a agency principle court could not affirm an on a Chenery agency might ruling not embrace. But required has not ICC, in futility. See Illinois v. 1341, courts to remand 722 F. 2d (CA7 1983); Chenery Friendly, 1348-1349 see also Revisited: Reflections Orders, on Reversal Remand of Administrative 1969 Duke L. J. 199. 8A presented, course, different situation is when there is no dis law, agreement probability as to the but the success the merits de See Delaware & Hudson pends likely emerge on facts are trial. Transportation Union, R. Co. v. United 159, App. 142, 146 D. U. S. C. (1971). Airco, 603, 620, denied, Inc. 450 F. 2d cert. U. 911 403 S. See also Energy Admin., (CA7 Development Research & 1294, v. 528 2dF. 1296 Younger Regional Planning ex rel. Tahoe 1975); Agency, v. 516 California (CA9), 215, 217 denied, (1975); Natural Resources F. 2d cert. 423 U. S. 868 Council, Morton, Inc. 5, 10, App. 148 U. S. C.D. 458 F. 2d Defense (CA9 Lodge, 827, Benda v. Grand (1972); 1978), 584 F. 314 2d Sunsites, dism’d, Inc., FTC v. Southwest (1979); cert. 441 U. S. 937 (CA5), denied, 2d F. cert. U. S. 973 758

IV us, constitutionality concerns the case, as it comes This Act that the Court of Pennsylvania of six provisions (“informed §3205 invalid: facially as struck down Appeals 3214(a) (h) §§ and information”); §3208 consent”); (“printed 3211(a) (determination § of viabil- requirements); (reporting 3210(b) abor- of care (degree required postviability § ity); 3210(c) We (second-physician requirement). § and tions); of the other sections of validity no reason to address have in the District Court.9 Act challenged 9 (definition (24-hour “abortion”); §3205 §3203 are: of Not before us 3214(f) 3207(b) (pub §§ and physician-only counseling); waiting period and hospitalization reports); (requirement § 3209 of for abor lic of disclosure 3210(a) § trimester); (penalties for abortion subsequent to the first tion 3215(c) thereto); viability, “complete (proscription § defense” after and 3215(e) services); (compulsory § public and funds for abortion of use services). availability excluding certain abortion insurance invalidated, development record or otherwise not and Remanded for us, operation § (parental of statute therefore not before are: consent — Supreme Pennsylvania enjoined of rules Court promulgation until (abortion 3207(b) § confidentiality disposition); promptness assuring and 3214(c), (d), §§ public disclosure); them and reports from facilities (other (f), reporting requirements challenges either not made or (g) — withdrawn). Court, 17, 1985, hearing, preliminarily District after en- On June (ED 3207(b) 3214(f). §§ Supp. 613 F. joined the enforcement of Pa.). 12, n. See infra. rules, Pennsylvania Supreme suggested men- Court of issued 26, above, 1984, appeal after the this ease was on November tioned 16.8, Pennsylvania Orphans’ Rules 16.1 to re- here. See docketed (Purdon 101-2507, Ann., pp. Supp. §§ printed in Pa. Tit. Stat. 1986-1987). thereupon Appellants filed motion with the District Court against App. § injunction enforcement of 3206 be vacated. 53a. that the however, motion, concluding jurisdic- court, that it had no That denied appeal [appellants] case order seek” while the was tion “to issue the Id., 57a, appellants’ suggestion 61a. decline that we now here. We rules, light for we con- this the case new examine feature development the District Court in should be considered clude that the first instance.

A years ago, Less than three this Court, Akron, Ashcroft, Simopoulos, challenges municipal and reviewed state to and legislation regulating performance In abortions. specifically Akron, the Court Roe Wade, reaffirmed v. (1973). Again

U. S., 420, S. See 462 at U. 426-431. today, general principles we reaffirm the laid down Roe and in Akron. years

In the since this Court’s Roe, decision States and municipalities adopted seemingly have a number of measures designed prevent physi- to a woman, with the advice of her exercising cian, from her freedom of choice. Akron is but example. principles one But the constitutional that led this provide compelling Court to its decisions 1973still rea- recognizing son for the constitutional a dimensions of wom- right pregnancy. “[I]t an’s to decide whether to end her go saying vitality should without that the of these constitu- principles yield simply tional cannot be allowed to because of disagreement them.” with Brown v. Board Education, (1955). 349U. S. 294, 300 The States not free, are under the guise protecting potential maternal health or intimi- life, to continuing pregnancies. Appellants date women into claim provisions statutory today legiti- that the before us further compelling mate interests of the Commonwealth. Close analysis provisions, they wholly of those however, shows that privacy subordinate constitutional interests and concerns with maternal health ing an a effort deter woman from mak- physician, that, a decision with her is hers to make.

B challenged We turn to the statutes: (“informed consent”) § (“printed 1. Section 3205 and 3208 information”). 3205(a)requires give Section that the woman “voluntary her informed consent” to abortion. Fail- § provisions subjects physician ure to observe of 3205 suspension any subjects license, or revocation of his in- relating information to provide person obligated other 3205(c). § A require- criminal penalties. consent to formed in- voluntary truly what give that the woman ment is, course, proper consent, general proposition, as formed Planned Parenthood See unconstitutional. and is not surely 52, 67 Danforth, Missouri 428 U. S. Central of information delivery may require But the State informed choice between influence the woman’s “to designed Akron, at 443-444. S., 462 U. or childbirth.” abortion ordinance, Appel- Brief for refer to the Akron Appellants in Akron itself, S., U. as did this Court lants ” “ and as ‘a of horribles’ parade of information” litany as “a to influence the woman’s validity plainly designed dubious situation, the Akron how- distinguish would They choice. that one. assert ever, Pennsylvania Appellants from the matter relevant to subject “describing general statutes consent,” ibid., “in terms the stating general and informed disclosed,” id., are and permissible, to be information statutes do no Pennsylvania further assert they than that. more like Akron’s ordi- that, We conclude agree.

We do 3208 fail the Akron measurement. The §§3205 and nance, “in- method for securing detail the prescribe two sections must kinds of information explicit consent.” Seven formed con- at least hours before her delivered to the woman and five of these must be presented sent is given, (a) are: the name of the physi- The five physician. woman’s (b) the “fact that there abortion, cian who will perform effects which and physical psychological be detrimental may (c) the medical foreseeable,” “particular not accurately are to be abortion particular procedure risks associated with (e) (d) and gestational age, the probable employed,” term.” her child to carrying “medical risks associated with (f) “fact that medical are categories The two remaining child- care, be available for may prenatal assistance benefits (g) care,” birth and neonatal and the “fact father is support, liable to assist” the child’s “even instances pay where father has offered to for the abortion.” 3205(a)(1) §§ and The woman also must be informed that printed supplied by materials and the Commonwealth that agencies offering describe the fetus and that list alternatives to are abortion for her available review. If she chooses to review the materials but unable read, the materials any “shall to her,” be read answer she seeks must be 3205(a)(2)(iii). “provided § language.” her her own She certify prior writing, must to the all abortion, that this has 3205(a)(3). § printed been done. materials “shall in- following clude the statement”:

“ many public private agencies willing ‘There are you help carry your and able to child term, and to you your your assist child after child is born, you keep your place whether choose to child or her or adoption. Pennsylvania him for The Commonwealth of strongly urges you making to contact them before a final requires your decision about abortion. The law physician agent give you opportunity or his to call agencies you undergo like these before an abortion.’” 3208(a)(1). § “probable

The materials must describe the anatomical and physiological characteristics of the unborn at child two-week gestational from increments fertilization to full term, includ- ing any possibility relevant information on the of the unborn 3208(a)(2). § child’s survival.” validity

In Akron, this Court noted: “The informed requirement pro consent thus rests on the State’s interest tecting pregnant the health of the woman.” 462 U. S., at 443. The Court went on to state:

“This does mean, however, not that State has authority unreviewable to decide what information a given woman must be she before chooses to have an responsibility primarily of the remains abortion. It appropriate physician to information is con- ensure that particular depending veyed patient, her circum- his to recognition State’s interest stances. Danforth’s justify ensuring given this information be will designed regulations influence the woman’s to abortion Id., at choicebetween abortion childbirth.” informed 443-444. requirements in the Akron ordinance

The informational “equally Id., reasons. at 445. for two decisive” were invalid required de- “much is The first was that information per- signed but rather to not to inform woman’s consent altogether.” at Id., it 444. The sec- her to withhold suade rigid specific body requirement that a ond was particu- irrespective given cases, in all of the information be upon patient, the discretion of the lar needs of intrudes thereby imposes physician pregnant the “unde- woman’s straitjacket” with which the Court sired and uncomfortable S., 8, at n. was concerned. Danforth, U. controlling apply equal with force to

These two reasons specific prescriptions and intrusive informational the Pennsylvania printed required by materials

statutes. nothing §§3205 to to be less than an out- and 3208 seem us wedge message right attempt dis- the Commonwealth’s privacy couraging into the of the informed-consent abortion physician. dialogue The man- between the woman her description intervals, of fetal characteristics 2-week dated plainly objective, how overinclusive. This is not no matter always to the woman’s information relevant medical punish may serve to confuse and her and decision, and anxiety, contrary accepted prac- heighten medical her listing agencies printed Pennsylva- in the tice.10 Even the Akron, consistently Following this lead in federal courts have Court’s fetal-description requirements inflammatory of their im because stricken g., League e. Planned Parenthood Massachusetts See, v. pact. 1021-1022 (CA1 1981); Carey, Bellotti, Charles 2d 2d 627 F. 641 F. presents problems; names of nia form serious it contains may step agencies be out of with the needs of the that well places physician particular in an awk- woman and thus infringes professional position upon his or her ward and Forcing physician pre- responsibilities. or counselor to the list to the woman makes him or her sent the materials and treating agent of the State the woman and effect imprimatur upon places his or her both the materials and Providence, Inc. v. Women’s Medical Center list. See (RI 1982). Supp. All is, Roberts, 1136, 530 F. imposed upon being, medicine close to state comes guidance professional seeks, medical she and woman, not the officially obviously intended to do— structures —as it was physician. dialogue the woman and her between 3205(a)(2)(i) (ii) §§ requirements that the woman may available, that medical assistance benefits be be advised responsible assistance in that the father is for financial similarly poorly disguised support are ele- of the child discouragement for the abortion decision. Much of ments of beyond physician’s nonmedical information this would be many patients, expertise would be irrelevant and, for area of life-threatening patient inappropriate. For a with may very pregnancy, “information” its rendition physician-patient relation- cruel as well as destructive ship. any experienced social worker or other counselor As responsibility often does not theoretical financial knows, rape equate should not fulfillment. And a victim of with perpetra- gratuitous an unidentified hear advice that have to support pregnancy if she continues the tor is liable for guise consent, of informed the Act re- Under the term. quires of information that is not relevant the dissemination legitimate no state and, thus, it advances consent, to such interest. City Ash (CA7 1980); Planned Parenthood Assn. Kansas

772, v. (CA8 1981); Medical Center Provi croft, 655 F. 2d Women’s (RI 1982). dence, Roberts, Inc. Supp. 1152-1154 530 F. 764 (iii) §§3205(a)(l)(ii) the requirements and of

The physical physician of “detrimental the be informed woman “particular psychological risks” all medical effects” and of and compound problem increase the attendance, medical of the upon physician’s anxiety, exercise patient’s and intrude type compelled judgment. proper professional This of of That the of informed consent. is the antithesis information compel surely simi- not, and would not, does Commonwealth necessary surgery every peril possible or lar disclosure simple character of reveals the anti-abortion vaccination, Pennsylvania, purpose. Akron, like and its real the statute subject describing general beyond merely gone “has far Akron, S., 462 U. at informed consent.” relevant to matter require phy- would In the Commonwealth addition, 445. judg- litany “regardless in his of whether recite its sician to personal patient’s] [the is relevant to the information ment statutory defects cannot be saved Ibid. These decision.” forthcoming subsequent might by any hear- at a facts requirements ing. therefore 3205’s informational Section facially unconstitutional.11 are

Appellants if however, so, that even this be assert, § remedy 3205to be severed and to allow the remainder of The radical dissec- We rule otherwise. effective. become § necessary leave 3205 with little resem- for this would tion Pennsylvania Legislature. intended to that

blance suggestion rejected as to the ordinance a similar We 11 conclusion, in appellants claim that the argument against this In their light in the of this must be held constitutional requirements formational Fitzpatrick, 428 in Franklin v. 901 U. S. summary affirmance Court’s Fitzpatrick, Assn. v. in Planned Parenthood (1976), judgment 1975). (ED litigation That concerned the Common Supp. Pa. F. provision, Act. Its informed-consent how Control wealth’s 1974 Abortion requests ever, plainly unconstitutional informational not contain such did Act, any physician-only counseling or 24-hour in the current as those summary preceded the affirmance also waiting-period requirements. all, Akron and, extent, any might if at be considered decision Akron, latter, course, controls. with be inconsistent despite presence Akron, U.S, 445, n. there severability broad clause. We reach the same conclusion present, reject plea here, where no such clause is See Co., severance. Carter Carter Coal 298 U. S.

312-313 3214(a) (h) 3211(a)(deter- § (reporting) 2. Sections viability). 3214(a)(8),part general mination of Section 3211(a). 3211(a) § reporting incorporates section, Section re- quires physician report to the basis for his determination applies only a “that child is not It viable.” after the first 3214(a) (h) §§ report required trimester. The and de- is among things, must include, tailed and other identification performing referring physicians facility and and of the agency; political as information to the woman’s subdivision age, residence, race, and State of marital and status, number prior pregnancies; period of of her last date menstrual probable gestational any age; judgment and the basis for emergency any a that medical existed; the basis for deter- nonviability; payment mination of and the of method for the report signed by attending physi- The abortion. is to be 3214(b). § cian. 3214(e)(2) §

Despite provides reports fact that that such public meaning records,” “shall not be deemed within the “Right-to-Know Law,” the Commonwealth’s Ann., Pa. Stat. (Purdon §66.1 seq. Supp. 1985), et Tit. 1959and each re- port public inspection copy- “shall be made available for and days ing receipt within 15 a in form which will not lead to identity any person filing report.”

the disclosure of the a Similarly, report required § complications, by 3214(h), open public inspection copying.” “shall be to A willful §3214 report required “unprofes- failure to file under physician’s noncomplying sional conduct” and the license §3214(i)(l). suspension subject “shall be to or revocation.” scope required availability The of the information and its to public any belie assertions the Commonwealth that it any advancing legitimate In interest. Planned Parent S., U. we Danforth, Missouri. Central hood of recordkeeping reporting provisions recognized “that preservation reasonably maternal directed are confidentiality respect patient’s properly health and reports required permissible.” privacy But the are go beyond today the health- Act us well under the before reports justify the Missouri that served to related interests Pennsylvania would re under consideration Danforth. pay quire, as method of not, Missouri did information as history, personal and as to the bases ment, as to woman’s reports judgments. The Missouri were be medical They “only purposes.” id., at 87. for statistical See used exception confidence, with the sole to maintained were explained public Akron, In the Court health officers. holding “The factor when it said: decisive its Danforth demonstrating its met burden of was that State important regulations furthered health-related state these S., at 430. U. concerns.” Pennsylvania reports, required hand, the other “public,” are nonetheless to to be available

while claimed not public copying. on Moreover, there no limitation the copiers public which the Commonwealth or the the use to proved persuasive may put The that for the them. elements ruling are to termi- absent here. decision Danforth intensely private pregnancy an that must one be nate anonymity. way protected in a that assures Ste- Justice opinion concurring judgment in the in Bellotti v. his vens, (1979), aptly Baird, 443 U. S. 622 observed: right “It in the to make the abortion decision is inherent may public scrutiny right that the be exercised without contrary sovereign opinion of the and in defiance parties.” at Id., third 655. other necessarily physician be more reluc- A woman and her will possibility if there exists a that her tant to choose an abortion identity publicly. Al- her will become known decision and require though specifically reporting the statute does not

767 name, woman’s the amount of information about her and the circumstances under which she had an abortion are so detailed that identification is Identification is likely. purpose obvious of these extreme reporting requirements.12 The “impermissible limits” that mentioned and that Danforth Missouri approached, see 428 U. S., 81, have been ex- ceeded here. note,

We as reach we that conclusion, the Court con- has sistently government refused allow to chill the exer- cise of constitutional rights by disclosure of requiring pro- e. but tected, sometimes activities. g., unpopular, See, Lamont v. Postmaster General, 381 (1965) (invali- U. S. Post Office dating requirement that addressee affirmatively request delivery “communist” materials order to receive (1960) (strik- Talley California, them); v. U. S. 64-65 ban unsigned handbills); NAACP ing down municipal ex rel. Alabama (1958) (in- Patterson, U. S. 462-465 list). validating disclosure of compelled NAACP membership Pennsylvania’s raise reporting requirements specter and public exposure harassment women who choose to ex- ercise their personal, private, intensely right, with their phy- sician, to end a pregnancy. Thus, they pose unacceptable us, Appellees Appellees 38-39, advise see they sought Brief for that preliminary Court a injunction against requirement District facility report quarterly identification report statistical public inspection made copying, available for 17,1985, on June hearing, after injunction full the District Court preliminary entered a against public-disclosure requirements. enforcement these Appel hearing lees assert that the record of pattern shows continuous against patients violence and harassment directed and staff of abortion clinics; that District Court concluded that by this would be increased public facility disclosure quarterly reports; of names and statistical and public impose right that disclosure would a burden on the woman’s to an by anxiety, her heightening discouraging phy abortion fear and and her because, offering doing, sician from an pres abortion so he would avoid record, course, sure from forces. anti-abortion That of now not before place upon us. need it We no reliance and we no from draw conclusion it. right, danger deterring of and must be the exercise that of invalidated. 3210(b) postviability (degree abor- of care for

3. Section tions) 3210(c) requirement § (second-physician when and viable). 3210(b)13 possibly forth two Section sets fetus is postviability independent requirements First, abortion. for a degree of such care “which exercise of that it demands the preserve required person to in order be to exercise would any to born and child intended be health of unborn life and technique employed Second, “the abortion not aborted.” opportunity provide for best would be that which shall physi- in the unless,” alive child to be aborted the unborn present technique judgment, good-faith a “would cian’s significantly greater the life health of medical risk to or knowing, pregnant intentional, An or reckless woman.” felony degree, a the third and standard is violation possibility imprisonment subjects to the for the violator years $15,000. to fine not more than more than seven §§1101(2) 1103(3) Pa. Stat. See 18 Cons. 3210(b) § Appeals unconstitu-

The ruled that was Court of required a “trade-off” between the woman’s tional because require that maternal and failed to survival, health and fetal 3210(b) Section reads: person performs or induces an abortion after unborn “Every who degree profes- been determined be viable shall exercise child has person skill, diligence required be to ex- care and which such would sional any preserve life health of unborn child intended ercise order technique employed be and not aborted and the abortion shall to be born provide opportunity the best the unborn child that which would unless, judgment physician, good in the faith aborted alive present technique significantly greater medical risk to method or would available pregnant life woman than would another or health reports judgment. for his technique physician and the basis method or potential impact or on the mother of the un- psychological emotional risk to the mother. survival not be deemed a medical born child’s shall intentionally, knowingly recklessly provi- violates the Any person who felony degree.” commits a of the third of this subsection sions physician’s paramount health be the consideration. 737 F. citing at 2d, Colautti v. Franklin, 439 U. S. (1979)(where Pennsylvania’s 397-401 1974Abortion Control reviewed). recognized Act was In Colautti, this Court “ undesirability any ‘trade-off’ between the woman’shealth percentage points and additional of fetal survival.” Id., at 400.

Appellants any proposition. do not take real issue with this Appellants They argue See Brief for 84-86. instead, as did Supp., the District Court, see 552 F. at that 806-807, “significantly greater statute’s words medical risk” for the life health of the woman do not mean some additional risk (in conceded) unconstitutionality apparently which case but only “meaningfully interpretation, increased” risk. That said the District renders Court, the statute constitutional. Appeals disagreed, pointing Id., at 807. The Court of out reading statutory language such a is inconsistent with the legislative language; and with the intent reflected in that “significantly” imposed the adverb modifies the risk on the “patently surplusage”; woman; the adverb is not and that language susceptible of the statute “is to a construc- require tion that does not the mother to bear an increased medical risk order to save her viable fetus.” 737 F. 2d, agree Appeals 300. We with the Court of and therefore facially find the statute to be invalid.14 3210(c)15 requires physician pres- Section that a second be during performed viability possi- ent an abortion when unnecessary This makes it appellees’ for us to argu consider further 3210(b) § ment that vagueness. is void for 3210(c) Section reads:

“Any person perform who intends to an abortion the method chosen for which, good judgment, in his faith preclude does not possibility abortion, surviving attendance, child arrange shall for the in the same completed, room which the abortion is to physician. of a Im- second mediately complete after the expulsion child, or extraction of the the sec- physician ond shall take control provide of the child and shall immediate child, medical care for the taking steps all necessary, reasonable in his physician is to “take control the child second ble. taking provide medical for the all child, . immediate care . . necessary, steps judgment, preserve in to his reasonable requirement of this is a life and health.” Violation child’s felony degree. of the third City, Missouri, Planned Assn. Kansas In Parenthood (1983), by a Court, 462 U. S. 476 5-4

Inc. v. Ashcroft, controlling single opinion, Mis not a ruled that a vote, but presence physician requiring the of a second dur statute souri viability ing performed after was constitutional. an abortion joined concluded Powell, Justice, Chief Justice compelling protecting interest the life that the State had a presence physician’s pro a viable and that second fetus protected assurance that the State’s interest was more vided physician fully only one at Id., than with attendance. recognized pass that, 482-486.16 Justice to con Powell exception an muster, the statute must contain for stitutional endangered situation the health of the mother was the by delay where physician. Recognizing in the arrival of the second clearly expressed exception” that there was “no on the face of emergency Missouri for the situation, statute Justice exception implicit statutory require in the found the Powell preserve “provided taken to the fetus it ment action be pose risk an increased to the life or health of the does n. 8. Id., woman.” 3210(c) § Pennsylvania statute,

Like the Missouri express exception emergency an statute contains no for situa- in the view statute, tion. While the Missouri of Justice sufficiently imply emergency Powell, was worded ex- ception, Pennsylvania’s comforting statute contains no such or preserve Any person judgment, the child’s life and health. who inten- tionally, recklessly knowingly provisions subsection violates felony degree.” a the third commits O’Connor, joined by Rehnquist,

16 Justice Justices White categorically second-physician somewhat was requirement stated S., at 505. constitutional. 462 U.

helpful language protect and evinces no intent to a woman 3210(a)17 may provides only whose life be at risk. Section a liability physician defense to criminal concluded, for a who good faith, that a fetus was nonviable “or that the abortion necessary preserve was maternal life or health.” It does second-physician requirement not relate to the and its words emergency. are not words of Pennsylvania Legislature

It is clear that the knows how to provide medical-emergency exception when it chooses to do emergency” “[m]edical general so. It defined terms § specifically provided medical-emergency 3203, and ex- § ception respect requirements, 3205(b); with to informational § parental post-first-trimester hospital- consent, 3206;for § public and for a ization, 3209; official’sissuance of an order n foran abortion without the express voluntary consent of the 3215(f). § necessarily legisla- woman, We conclude that the provide medical-emergency exception ture’s failure to a 3210(c)

§ chilling All was intentional. the factors are here for performance per- of a late abortion, which, more than one perhaps at an date, formed earlier tends to be under emer- gency conditions.

V rights always easily Constitutional do not have ascertain controversy meaning boundaries, able and over the of our Na majestic guarantees frequently tion’s most has been turbu judges, uphold lent. As we are sworn to however, the law gives dispute. even when its content rise to bitter See Coo (1958). per recognized very 358 U. 1 Aaron, v. S. We at the 17 3210(a) Section reads:

“Any person intentionally, recklessly performs knowingly who or or in- felony duces an abortion when the fetus is viable commits a of the third degree. complete any charge against It be a brought shall defense to a physician violating requirements of this section that he had con- faith, good judgment, cluded his best medical that the unborn child performed was not viable at the time the abortion was or induced or that necessary preserve the abortion was maternal life or health.” 772

beginning opinion 410 Roe, S., U. that abor- our spiritual questions over which honorable raises moral and tion profoundly. disagree sincerely persons and But those can disagreements of our and do not now relieve us did then faithfully. duty apply the Constitution long recognized have that the Constitution em- cases Our promise private sphere of that a certain individual bodies liberty government. largely beyond kept the reach of will be g., Population Carey 431 International, e. v. Services See, (1977); Cleveland, East 431 494 678 Moore v. U. S. U. S. (1972); (1977); 405 U. S. 438 v. Baird, Eisenstadt v. Griswold (1965); Society Sisters, Connecticut, U. S. 479 Pierce v. (1925);Meyer S. Nebraska, v. 262U. 268U. S. (1977). That 589, 598-600 Roe, 429 U. S. also Whalen

See promise as men. Few decisions extends to women as well private, personal properly intimate, more more are dignity autonomy, individual than a wom- more basic to guidance physician within decision—with her an’s specified pregnancy. to end her limits Roe—whether freely right to make that choice is fundamental. A woman’s protect inadequately Any view, in our would result, other liberty part sphere guarantees our law central equally to all. correctly Appeals specified

The Court of invalidated the Pennsylvania’s provisions Act. Its Abortion Control judgment is affirmed.

It is so ordered. Stevens, concurring. Justice scope liberty given interest in that is of the individual

protection Due Process Clause of Fourteenth judges matter which Amendment is a about conscientious long Although disagreed. I believe that that interest is have significantly does,1 than I have al- broader Justice White 1 Fano, g., in Meachum v. e. Compare, opinion for the Court 427 his id., my case, 229. (1976), 215 in that U. S. with dissent

ways highest respect subject.2 had the for his this views on although may In this case, differ, our ultimate conclusions it emphasize agreement be useful to of our some areas of clarity propo- order to ensure of certain fundamental sitions not forceful be obscured his rhetoric. begin

Let me with a v. Connecticut, reference Griswold (1965), holding may 381 U. S. 479 that State the case totally Although forbid the use of birth devices. control opinion “right privacy” Court’s relied on a of marital within “penumbra” Rights, of the Bill of id., at 481-486, Justice concurring opinion right went to the heart of the White’s issue. He wrote: unduly repetitious, belaboring

“It would be expound impact obvious, to on the of this statute on liberty guaranteed by the Fourteenth Amendment against arbitrary capricious denials or the nature liberty. say of this Suffice that this is not the first this time Court has had occasion to articulate that liberty protection entitled to under the Fourteenth right marry, Amendment includes the ‘to establish a bring up Meyer home and children,’ v. Nebraska, 262 liberty... upbring 399, U. S. 390, ‘the to direct the ing Society and education of children,’ Pierce v. Sis of among ters, 510, 534-535, 268 U. S. and that these are rights ‘the civil basic of man.’ Skinner Oklahoma, 535, U. S. 541. These decisions affirm that there is family a ‘realm of life which state cannot enter’ with justification. out substantial Prince v. Massachusetts, Surely right U. S. 166. invoked regulation free case, to be intimacies the mar riage relationship, ‘come[s]to this Court with a momen respect lacking appeal tum for when is made to liberties merely shifting arrange- which derive from economic 2See, g., Stevens, e. Restraint, Diego Judicial L. San Rev. 449-450 774 (opinion Cooper, of 77, 95 336 U. S. Kovacs v.

ments.’ J.).” J., concur- at 502-503 Id., Frankfurter, (White, judgment). ring in the constitutionally not be the statute could

He concluded explaining: persons, applied married sweeping justifying nothing record “I in this find telling the free- scope effect on statute, with its of this persons, conclude that it and therefore of married doms deprives process liberty persons of without due such at Id., 507. law.” part in on the that the statute fact

That relied conclusion liberty”3 part on the “sensitive areas involved any justification applying the for statute colorable absence couples. to married (1972), Justice Baird, v. 405 U. S. 438

In Eisenstadt statute was a similar Massachusetts concluded that White person applied iden- the record did not to a whom invalid as tify 464-465, unmarried, id., as married or either Population Carey International, 431 U. Services S. v. holdings (1977), explanation he subscribed this and Eisenstadt: Griswold fallacy argument appellants’] [the is that

“The fatal underlying premise of those decisions overlooks protects right ‘the of the individual that the Constitution pertinent, sure, for right “The is to be statutes nature of invaded do, Court, re liberty eases regulating sensitive areas of under the Oklahoma, 535, 541, Skinner v. scrutiny,’ U. S. and ‘must quire ‘strict light achieving in the means for the same basic be viewed less drastic Tucker, sig there a Shelton purpose.’ v. 364 U. S. 488. “Where upon liberty, may prevail only personal nificant encroachment the State Lit Bates v. upon showing subordinating compelling.’ interest which Florida, Rock, McLaughlin tle also v. 379 U. S. 361 U. S. 524. See statutes, necessary reasonably such if effectuation 184. But interest, capricious arbitrary and not legitimate and substantial state Zemel the Due application, are not invalid under Process Clause. Rusk, S., S. 1.” 381 U. at 503-504. U.

775 governmental ... free from unwarranted intrusion beget into . . . the decision whether bear or child.’ [Eisenstadt S.] Baird, v. 405 at U. 453. Griswold did by ‘forbidding contraceptives state that the use of rather regulating than sale,’ their manufacture or the Connecti impact’ cut had statute there ‘a maximum destructive on privacy rights. S., 381 U. at 485. This intrusion into precincts sacred ‘the of marital bedrooms’ made that particularly ‘repulsive.’ Id., statute at 485-486. But subsequent decisions have made clear that the constitu protection autonomy tional of individual in matters of childbearing dependent that not element. Eisen holding protection stadt v. Baird, that the not limited couples, protected right to married characterized the as beget the ‘decision whether bear or a child.’ 405 added). (emphasis Similarly, S.,U. at 453 Roe v. protects Wade, held that the Constitution ‘a de woman’s pregnancy.’ cision whether not to terminate her added). (emphasis S.,U. at 153 See also Whalen v. [429 Roe, 589,] U. S. n. 599-600, and 26. These deci put proper perspective. in sions Griswold Griswold may longer holding may no be read as that a State prohibit couple’s contraceptives. a married use of light progeny, teaching in Read of its of Griswold is protects Constitution individual in decisions childbearing by unjustified matters from intrusion S., State.” 431 at 687; id., U. con (White, J., result). curring pertinent part concurring in liberty aspect Thus, at stake case is free- governmental dom from unwarranted intrusion individ- into childbearing. ual decisions matters As Justice White explained aspect liberty Griswold, comes to this respect ap- lacking with momentum that is when peal merely shifting is made to liberties which derive from arrangements. economic in Griswold control statutes involved

Like the birth Wade, Roe involved Baird, statutes the abortion us today apply and in the case before 113 (1973), U. S. unmar- and made married persons to decisions equally cases, in those with his views Consistently ried persons. to choose an ability woman’s “a agrees Justice White to the subject general that is ‘liberty’ species abortion is a Post, at 790. His Due Clause.” of the Process protections ibid., is not “indisputable” proposition, with that agreement women by made pregnant limited to decisions or qualified form of it would be a and, indeed, strange are married who if limited. it were so liberty his is analysis, opinion in to this point

Up Justice White’s the accepted teachings the consistent with fully of Roe v. Wade. For reasons that premises with the major an- clear, however, abruptly entirely are not Justice White in a “liberty” implicated by the interest that is nounces that days is a after con- to bear a child that made few decision not made is fundamental than a decision comparable less ception Post, course, 791-792. There may, at conception. before of the counter- strength difference the significant be a I a decision on interest, but fail see how state vailing day after important conception becomes less childbearing more Indeed, if one decision is “funda- day than before. other, surely mental” to the individual’s freedom than decision that is the more serious. is the postconception how Justice White Thus, it difficult me understand upon the conclusion that restraints aspect reaches not “call into more than the liberty play anything woman’s do Post, at 790.4 judicial scrutiny.” minimal most analysis. At White’s rhetoric conflicts with his own times Justice instance, emphasis by people “the For his the lack of decision ... since,” 1787, 1791, 1868, 797, sharp any post, or time at stands contrast simplistic earlier, rejection of forthright to his “the view constitutional possibly meaning’ interpretation plain can be to ‘the limited Con Post, subjective stitution’s text or to the intention the Framers.” Similarly, at statement that an abortion decision should sub- 789. his If Justice White were correct regarding the post- decision of the conception question whether to bear a child as a relatively unimportant, interest, second-class sort of I with his agree view that might individual should be re to conform her quired decision to the will the majority. ifBut that decision commands the respect tradition associated with the ally “sensitive areas of liberty” protected by Constitution, as Justice White re characterized Griswold, productive decisions S., U. at no indi vidual be compelled should to surrender the freedom to make for herself decision her simply because “value prefer ences” are not shared by sense, In a majority.5 the basic is whether question “abortion decision” should be made “in individual im majority unrestrained ject people,” post, very to “the will of the does not take us far in determining people majorities which legislatures in state in- or the —the dividuals confronted with In pregnancies. agree- unwanted view his ment that species liberty” protected the decision about abortion “a of is by Constitution, moreover, 790, post, at and in view of the that fact “liberty” plays prominent Constitution, a sugges- rather role in our his tion that the evaluation of represents imposition Court’s that interest preferences,” post, 794, of “extraconstitutional value in- at seems to me explicable. analysis This of the characterization Court’s as “extraeonstitu- also not reflect recognition tional” does simultaneous Justice White’s announcing “[t]he that Constitution ... is a princi- document fundamental ples ample scope in terms that value-laden leave for the exercise of norma- by Post, judgment charged tive those with interpreting applying and it.” Finally, at I 789. fail to see good how fact that “men and women of high will and government,” commitment to post, constitutional at are helps on both of the sides abortion issue to resolve difficult constitu- question us; I disputants tional before take that it most constitutional society similarly controversies our free can be characterized. is, person wants, a “What what he his plan, determination of life concept of good, his of the expressions are most intimate of self- determination, by person’s a asserting responsibility for the results of this give liberty.” self-determination we concept substance to the of Fried, Right Wrong, C. 146-147 (the Fried, (1977) Correspondence, See also 6 Phil. & Aff. Pub. 288-289 concept privacy person belongs embodies the “moral him- fact that a to whole”). society self and not others nor as a preferences.” value own, of its extraconstitutional position quite wrong Justice White is surely at 794. But Post, preferences is value imposing that the Court suggesting Ibid.6 anyone else. that wrong suggesting surely

Justice White also life is equally fetal interest protecting the governmental of con- from the moment period the entire compelling during I Post, Again, at 795.' the moment of birth. until ception can made be theological argument that powerful recognize I is limited to jurisdiction our position, for that but believe I think state interests.7 should the evaluation secular in the protection the State’s interest obvious if as those that interest is defined “protecting embryo —even citizens,” ibid. —increases progressively will who to feel to ex- capacity pain, as the dramatically organism’s its survive, and to react surround- perience pleasure, fetus —and by day. development increases ings day conditions, static and the assertion itself —are not pregnancy ignores is static simply interest government’s reality. governmental interest as characterization White’s Justice if their lives in the

“protecting will be citizens are ended those who may much womb,” post, opinion that his be influenced as reveals preferences proper as his view about the allocation de his own value if responsibilities and the State. For cisionmaking between the individual decision, presum judges make must allow the State to the abortion federal may abort, may ably never some the State is free to decide a woman China, abort, or, always if People’s Republic as in the must abort times contrast, already large. represent family her In a consist too our cases responsible primarily reproductive ent view that the individual is deci sions, prohibit reproduction, v. Okla whether the seeks to Skinner State (1942), it, Wade, homa, v. S. 113 require 316 S. 535 or to Roe 410 U. U. born, nurturing newly as well as responsibility the soul of the unborn, parents, No matter rests with individual not with the State. be, surely may important baptism as a State could how sacrament such punish refusing baptize not child. a mother for her argue

Nor is it an answer to that life itself is not a static nonarbitrary separating condition, and “there is no line being,” post, a fetus from a child, indeed, adult human religious “per- For, at 792. unless the view that a fetus is a adopted son” is ibid, view Justice White refuses to embrace, —a well-recognized is a —there fundamental difference being; fetus between a and a human if indeed, there is not permissibility terminating such a difference, the the life scarcely leg- of a fetus could be left to the will state may if islatures.8 And distinctions be between drawn being fetus and a human in in terms the state interest their protection though represents fetus one of “those —even quite argue who will be citizens”—it to me seems odd to may distinctions not also be drawn between state interest protecting freshly egg fertilized and the state interest protecting 9-month-gestated, fully sentient fetus on Recognition supported the eve of birth. of this distinction logic, by history9 by but also our shared experiences.

Turning to Justice White’s comments on stare he decisis, pointing is of course correct out that the Court “has not decisions, hesitated to overrule or even whole lines of cases, experience, scholarship, where and reflection demonstrated premises that their fundamental were not to found Post, Constitution.” But 787. has not Justice White premises” disavowed the “fundamental on which decision in Roe v. Wade rests. He has not disavowed Court’s prior approach interpretation “liberty” to the of the word or, narrowly, more the line of cases that culminated the un- equivocal holding, applied persons to unmarried and married persons protects alike, “that the Constitution individual deci- childbearing unjustified sions in matters of from intrusion suggested “person” of this No Member Court has ever that a fetus is a meaning of within the the Fourteenth Amendment. Wade, supra, See Roe at 129-147.

780 id., J., at 702 Carey, S., 431 U. at 687; the State.” (White, concurring part).10 pertinent of stare decisis is not fact that the doctrine does the

Nor of interpretations reexamination of past bar to the absolute that doc- underlying the values mean Constitution There is a summarily put strong to one side. may trine be conduct of our stability, orderly interest public 10 “liberty” however, concept by limited has, suggested that the of is He Post, at Like at stake. 790-791. two of values basic “definitions” “judges . roam about . . I share Justice Harlan’s concern White, Justice Ibid.; Stevens, 22 San field.” see also ing large at in the constitutional But use Rev., L. 449-450. I am convinced Diego Justice White’s process analy inadequate the difficult of is an substitute for “definitions” liberty requires, process a nowhere judgment guarantee that the sis and by expressed than Justice Harlan: better any formula; its content cannot process has not been reduced to be

“Due any can be code. The best that said determined reference represented it has the balance through the of this Court’s decisions course Nation, respect liberty the in- upon postulates built for the which our liberty dividual, organized and the demands of so- has struck between that concept supplying If the of content to this has ne- ciety. Constitutional certainly judges cessity process, it has not been one where been a rational speculation unguided might take them. The felt free to roam where have country, having speak I re- of which is the balance struck this balance history developed from it gard teaches are the traditions which as to what living a thing. which That tradition is well as the traditions from it broke. radically departs long A of this Court which from could decision likely has survive, a decision which builds on what survived while area, substitute, judgment serve sound. No formula could as and restraint. protection against must

“Each new claim to Constitutional be considered rationally they per- background purposes, Constitutional as have been developed. historically Though we exercise limited and ceived and yardstick,’ yet no ‘mechanical no sharply judgment, restrained there is must apparently The decision of an novel claim de- ‘mechanical answer.’ closely well-accepted principles pend grounds on and crite- which follow place ‘its in relation to what went before ria. The decision must take new California, a channel for what is come.’ Irvine [cut] further Ullman, opinion).” (dissenting Poe v. U. S. U. S. (1961) J., (Harlan, dissenting). 542-544 by affairs, that is served a of consistent course constitutional adjudication. Acceptance premises of the fundamental that appli- underlie the in Roe Wade, decision v. as aswell the premises places primary in cation of those case, that the responsibility childbearing squarely for in decision matters of private society.11 majority in the sector of our remains preach free to the of evils birth control and abortion and to persuade others make correct decisions while the individ- reality having ual faced with the of a difficult choice serious personal consequences major importance and her own perhaps to the salvation of her soul— own immortal future — remains free to seek sympathetic guidance

and obtain from preferences. those who share her own value analysis, holding presumes In the final in Roe Wade v. permit that it is far better to some individuals to incor- make deny right rect decisions than to all individuals the to make profound upon destiny. decisions that have a effect their Arguably very primitive society protected a been would have against eating apples; majority from evil a rule familiar experience might with Adam’s such favor a rule. But the placed special premium protection lawmakers who on 11“These with protection. cases do deal in individual’s interest attention, comment, public from exploitation. They deal, unwarranted or rather, right with unusually important the individual’s to make certain own, family’s, destiny. decisions will affect his his The Court has values,’ referred to such implicating decisions as ‘basic as being ‘funda mental,’ being dignified by history as and tradition. The character of in language the Court’s brings origins these cases to mind the Ameri heritage can abiding liberty of freedom —the interest individual certain right makes state intrusions the citizen’s he to decide how will by history, respect live his own life intolerable. Guided our tradition of for dignity individual choice matters conscience and the restraints implicit system, federal judges accepted federal have responsibil ity recognition protection rights appropriate of these eases.” Fitzgerald (CA7 Hospital, v. Porter 716, Memorial F. 2d 719-720 1975) (footnotes omitted), denied, cert. 425 U. S. 916 liberty recognized values are that certain have individual majority.12 important will of a transient than the more Burger, dissenting. Chief Justice agree and Justice I much with White’s Justice companion my in the In concurrence O’Connor’s dissents. I Wade, S. noted: Roe U. case to today having holdings as read Court’s “I do not sweeping consequences the dis- attributed to them senting dissenting views discount the real- Justices; physicians ity majority of observe the the vast profession, act on the basis of of their standards carefully relating judgments to life medical deliberated any Plainly, today rejects Court claim health. and requires on demand.” Constitution abortions that the (1973). Bolton, 410 U. 208 Doe v. S. (1977), I Roe, in v. U. S. 481 stated Maher

Later, my view holdings

“[t]he Roe Doe v. Bolton . . . . . and . Court’s simply require that a not create absolute bar- State to an abortion.” to woman’s decision have rier concurring my I in Roe and Maher on the statements based opinion principle expressed in Roe that the in the Court’s unqualified right and must be consid- to an “is not abortion regulation.” against important state interests ered every In the Roe short, Member of S.,U. 154-155. rejected the on demand. The Court’s Court idea abortion plainly important today, opinion however, undermines that subjects very Rights Bill of to withdraw certain purpose “The of a was controversy, beyond political place to them from vicissitudes of majorities legal principles them to and officials and to establish as reach of life, liberty, property, to right to and free applied the courts. One's worship assembly, and other funda speech, press, a free freedom vote; they depend rights may not on the outcome of mental be submitted Barnette, Virginia Education West Board 319 U. S. no elections.” 624, 638 I principle, regretfully conclude some the con- cerns of the dissenting Roe, Justices well as as the I concerns expressed my separate opinion, now have been realized. extent which Court has from limi- departed

tations in Roe is In expressed readily apparent. Roe, the Court emphasized

“that the State does have an important and legitimate interest preserving the health of protecting Id., woman . . .” pregnant . at 162.

Yet the Court today astonishingly so far as to goes say that may State even that a woman require contemplating an abortion be with accurate medical provided information the risks inherent in the medical concerning procedure which she is about to and the undergo availability state-funded if alternatives she not to elects run those risks. Can anyone doubt that State could impose a similar with requirement other medical respect procedures? Can doubt anyone doctors similar routinely information give concerning risks in countless less procedures having far life and impact health, both and emotional than an physical abortion, and risk a if lawsuit fail to do so? malpractice they

Yet concludes that the impose State cannot in simple the abortion information-dispensing requirement context is where the decision with serious fraught physical, and moral concerns of the order. psychological, highest Can be that Court the is that the possibly saying Constitution the communication of critical such information to a forbids woman?* We have apparently already passed the at point astounding holding

* The Court’s rationale for such this is that informa abortion,” ante, might tion have of “discouraging the effect at as though something abortion is to be and encouraged. advocated This is at with Roe odds our subsequent not but with abortion decisions as well. Matheson, for the Court in H. L. v. my opinion I As stated in 450 U. S. notify upholding requiring parents a Utah a doctor (1981), statute seeking compel of a minor “The abortion: Constitution does not a state merely If the statute on demand. abortion available which will not even invalidated, to the “demand” issue here is at of an informed choice. result have to be the recognized “has that the State The in Roe further “sep- important legitimate interest” which another still protecting in maternal from the interest arate and distinct” “protecting potentiality of an interest health, e., i. point The at which these interests be- life.” Ibid. human viability “compelling” Id., at of the fetus. Roe is under come Today, abandons that standard however, the Court 163. solemnly 1973 Roe concerns of the stated and renders opinion mere shallow rhetoric. for the interests states physi- requires issue this case second The statute at viability, during present performed after an abortion cian be physician can “take control of the child so that the second taking provide medical . all reasonable . . immediate care. . . preserve necessary, judgment, steps his life to child’s §3210(c) 18 Pa. Cons. and health.” Stat.

Essentially provision simply fetus states that viable power destroyed. governmental No for, is to be cared every protec- say that a viable fetus should not have exists preserve Undoubtedly Pennsyl- required its life. tion second-physician requirement Legislature added the vania assumption Court meant what it mistaken that this said concerning “compelling interest” in Roe of the states viability. potential life after opinion today is but the most recent indication Court’s Perhaps impor traveled since Roe. the first distance holding in Planned Parent

tant road marker was the Court’s (1976), Danforth, hood Central Missouri U. S. (over held the Court dissent which White Justice encourage fine-tune its statutes so as to faciliate abortions. To except contrary, ‘encouraging urgent action childbirth in the most state ‘rationally legitimate objec- governmental related to the circumstances’ McRae, Id., Harris potential protecting (quoting life.’” at 413 tive (1980)). 297, 325 448 U. S. joined by myself) and that the State Rehnquist Justice may require seeking not that minors an abortion first obtain parental judges consent. Parents, not or social workers, right responsibility have the inherent to advise their chil- sensitivity consequence. dren matters of this Can one imagine surgeon performing amputation an or even an appendectomy 14-year-old girl on a without the of a consent parent guardian except emergency or in an situation? today goes beyond by remanding Yet the Court Danforth provisions Pennsylvania’s

for further consideration of the requiring seeking statute that a minor an abortion without parental petition appropriate consent court for authoriza- agree if I requires tion. Even were to that the Constitution may provide parental that the states that a minor receive undergoing certainly consent before I abortion, would hold judicial approval may required. keeping This is longstanding principle may with the common-law that courts parentis parents function in loco neglectful, when are unavailable or though very satisfactory even courts are not sub- 16-year-old stitutes when the issue is whether 12-, 14-, girl my unmarried should have an In abortion. view, no necessary point statutory remand is on this because the provision question is constitutional. discovering regula-

In constitutional infirmities state history tions of abortion that are in accord with our and tradi- may judges “roaming large tion, we have lured into in the constitutional field.” Griswold v. Connecticut, U. S. (1965) (Harlan, concurring). 479, 502 J., The soundness of holdings purport our must be tested the decisions that today’s holding really follow If them. mean Danforth they say, agree what seem I we should reexamine Roe. White, Rehnquist Justice with whom Justice joins, dissenting.

Today the Court carries forward the “difficultand continu ing process,” venture substantive due Planned Parent (1976) hood Central Missouri v. Danforth, 428 U. 52S. 786 in Roe with the decision J., dissenting), began that

(White, (1973), has the Court further S. led Wade, U. in that decision was years the since and further afield in in Roe and am I was in dissent v. Wade handed down. I I to below, In Part I state continue be- today. why dissent fundamentally misguided this has been lieve that venture In I even II, accepting Part submit that inception. since its no Wade, underlying by concerns that decision Roe v. the In- today. the results reached justify command means area, our this a deed, my view, applied precedents with of constitutional principles consistent sound manner of the Court of on Appeals reversal adjudication, require before us are ground facially that provisions constitutional.1

I if case-by-case of stare decisis is essential judicial rule is to be reconciled with the principle decisionmaking shall, part, 1 I leave one side the Court’s somewhat for the most to disagree extraordinary procedural strongly I not with rulings. do 1254(2), § finality requirement S. read a into 28 U. C. Court’s decision to thought explain why to although I have it incumbent on the Court would Appeals’ judgment statutory provisions toas before us the Court of represents ruling constitutionality, their is today, a definitive not which satisfy jurisdictional interpreted sufficiently “final” to statute as Court. ruling permissible appellate court

As for the Court’s for an grant preliminary injunction appeal from the or the denial resolve an statute, constitutionality I do by issuing judgment a final as to the cases, may, appropriate disagree this rare be an course of action are clear. I would stress that this is no where the constitutional issues cases, in the run of and I preferred means course of action assume that opinion contrary. disagree I do majority’s quite strongly is not to the here, believe, I majority's application principle contrary as with the quite that the us is majority, that it is evident statute before con- believe, evident, I its face. also as will become least stitutional on inappropriate pre- rulings exceedingly in view of the one of the Court’s if liminary majority’s legal premises even are posture of this case accepted. governing legal open

rule of law, for when standards are every deciding revision case, cases becomes a mere exer- judicial arbitrary unpredictable will, cise of with results. upon judicial But stare decisis is not the constraint de- cisionmaking. Cases—like this one—that involve our as- power grounds unconstitutionality sumed to set aside on representing democratically state or federal statute ex- pressed people play. will of the call other considerations into Because the Constitution itself is ordained and established people adjudication of the United States, constitutional theory any this Court in not, does rate, frustrate the authority people govern through of the themselves institu- devising principles tions of their own in accordance with choosing. of their own But decisions that in find the Con- principles fairly stitution or values that cannot be read into usurp people’s authority, that document for such deci- represent people sions choices that the have never made and they through legislation. cannot disavow corrective For power reason, it is essential that this Court maintain the authority proper possessors by correcting to restore to its constitutional that, decisions on reconsideration, are found to be mistaken.

The Court has therefore adhered to the rule that stare rigidly applied involving decisis is not in cases constitutional (1962) issues, see Glidden Co. v. 370 Zdanok, U. S. (opinion J.), of Harlan, and has not hesitated to overrule experience, decisions, or even whole lines of cases, where scholarship, and reflection demonstrated that their funda- premises mental were not to be found the Constitution. way Stare decisis did not stand of the Justices who, swept away the late 1930’s, constitutional doctrines that had placed power unwarranted restrictions on the of the State legis- and Federal Governments to enact social and economic Darby, (1941); lation, see United States v. 312 U. S. 100 West (1937). Hotel Coast Co. v. Parrish, 300 U. S. 379 Nor did years stare decisis deter a different set of Justices, some 15 rejecting prevailing view that the from the theretofore later, permitted the States maintain Fourteenth Amendment segregation. system Education, Board of racial Brown v. (1954). history In has been far instances, S. 483 both 347 U. departed precedent those from than to those kinder to who blindly the rule of stare decisis. would have followed who today’s majority opinion author Term, And last apparent again us that “when it has become reminded once departed proper prior has from a understand- that a decision ing” Constitution, that must overruled. decision Metropolitan Authority, Transit v. San Antonio Garcia U. S. my recognize Roe v. view,

In the time has come to by the no less than the cases overruled Wade, just “departs proper cited, I from a under- decisions have standing” I of the Constitution and to overrule it. do arguments support proposition of this are claim that they in ones or that were not considered the Court new or in the it. Cf. Akron v. Akron Roe cases succeeded Reproductive Health, Inc., 462 U. S. 419-420 Center for argument ifBut an that a constitutional decision justify overruling in novel to is erroneous must be order precedent, in Lochner York, the Court’s decisions v. New (1905), Plessy Ferguson, and 198 U. S. 163 U. S.

(1896), in law, would remain the for the doctrines announced incisively eloquently those decisions were nowhere more or dissenting opinions than in of Justices Holmes criticized the Lochner) (in cases). (in Harlan both That the flaws opinion at the were evident time it was down is handed adhering hardly to a reason for it.

A posits right Roe v. Wade that woman has fundamental pregnancy, right may terminate her and that this be re- to only compelling of stricted the service two state interests: (which compelling the interest maternal health becomes stage pregnancy at the at which an abortion becomes term) carrying pregnancy more than hazardous the to (which protecting the interest life of the fetus becomes compelling only point viability). of A reader of the might surprised encompassed Constitution be to find that it obviously rules, these detailed for the text no contains refer- pregnancy reproduction abortion, nor, indeed, ences to or generally; highly and, of course, it doubtful that the au- any provisions thors of the Constitution believed they giving protection prior were to abortion. As its clearly cases show, however, Court does not subscribe to simplistic interpretation pos- view that constitutional can sibly “plain meaning” limited of the Constitution’s subjective text or to the intention of the Framers. The Con- setting precise stitution is not a deed forth the metes and subject bounds its matter; rather, it is a document an- nouncing principles fundamental in value-laden terms that ample scope judgment by leave exercise normative charged interpreting applying particu- those with it. In Due lar, the Process Clause Fourteenth Amendment, deprivation liberty, property which forbids the of “life, or process by majority due of law,” without has been read enough provide protec- to be broad substantive against infringement range tion state of a broad of individual Cleveland, interests. See Moore v. East 431 U. S. (1977) dissenting). (WHITE, J., 541-552 protection In instances, most the substantive afforded liberty property of an individual the Fourteenth Amend- extremely impinging ment is limited: State action on individ- only scrutiny ual interests need be rational to survive under rationality the Due Process Clause, determination of heavy policy is to be made with of dose deference to the Only legislature. rights choices “fundamental” are protection provided by judicial entitled to the added strict scrutiny legislation impinges upon of id., them. at See J.); (Stewart, (opinion joined by id., of Powell, at 537 J., dissenting); J., dis- id., 547-549 J., (White, Rehnquist, certainly agree proposition senting). I with the I can —which ability indisputable abor- to choose an woman’s deem —that general pro- “liberty” subject species that is to the tion a of is agree, I cannot how- of Due Process Clause. tections liberty is “fundamental” that restrictions that this so ever, anything upon play more than the most minimal it call into scrutiny. judicial clearly pres- and interests are most

Fundamental liberties specific recog- provides textual Constitution ent when the importance. Thus, the Court of their existence nition relatively ground the lib- firm when it deems certain of Rights Bill of to be fundamental and erties set forth incorporated in them the Fourteenth Amend- therefore finds deprive any guarantee may person that no ment’s liberty State process ven- without due of law. When “fundamental” that are further and defines as liberties tures (or present in the Constitution that are nowhere mentioned specifically “penumbras” enumerated in the so-called necessity, rights), caution, it act more lest it must, with identifying open that, in the name of itself to the accusation people principles to which the have consented constitutional framing nothing Constitution, their Court has done upon impose choices of more than its own controversial value people. Attempts operate to articulate the constraints that must upon employs Due Process the Court when Clause to protect specifically in the liberties not enumerated text produced varying have definitions “funda- Constitution approach limit has been to the class mental liberties.” One “implicit are liberties those interests that fundamental liberty” liberty concept of ordered such that “neither [they] justice if exist sacrificed.” Palko v. nor would were (1937); see Moore v. Connecticut, U. S. (Stewart, joined by Cleveland, S., 431 U. at 537 East J., dissenting). approach Another, broader J., Rehnquist,

791 “deeply to define fundamental as those that liberties are history rooted this Nation’s and tradition.” Id., at 503 (opinion J.); of Powell, see Connecticut, also Griswold v. (1965) (Harlan, concurring). 381 S.U. 501 J., These possible approaches distillations of the to the identification of rights purport unenumerated fundamental are not do precise legal yardstick^],” to be tests or “mechanical Poe v. (1961) (Harlan, dissenting). Ullman, 367 U. S. 544 J., utility identify Their lies in their effort to some source of philosophical predi- constitutional value that reflects not the judges, lections of individual but basic choices made people constituting system govern- themselves their country,” ment— “the balance struck at 542 id., added) (emphasis they through seek to achieve this end —and locating rights fundamental either in the traditions and con- society logical implications sensus of our as a or in whole system recognizes liberty of a both individual and demo- approaches cratic order. Whether either of these can, as hoped, prevent “judges roaming large Justice Harlan from at supra, in the field,” Griswold, constitutional 502, debat- subject able. What me is not to debate, however, is that either of the basic definitions of liberties, fundamental taken seriously, illegitimacy indicates of the Court’s decision in Roe v. Wade. justified recognition

The Court has of a woman’sfunda- right pregnancy by invoking mental to terminate her deci- upholding personal autonomy sions claims of in connection family rearing with the conduct life, children, mari- privacy, contraceptives, preserva- tal the use of capacity procreate. Carey tion of the individual’s See v. Population (1977); Services International, 431 U. S. 678 supra; Cleveland, Moore v. East Baird, Eisenstadt v. (1972); supra; U. S. 438 v. Connecticut, Griswold Skinner v. (1942); Society Oklahoma, 316 S.U. Pierce v. Sisters, (1925); Meyer 268 U. S. 510 Nebraska, U. S. 390 correctly if Even each of these cases was decided rights “implicit grounded properly in in that are be and could liberty” “deeply concept in this Na- or rooted of ordered the history in dif- issues the cases cited tradition,” and the tion’s the concerned. As stake where abortion is fer from those at preg- “[t]he recognized appropriately Wade, in Roe v. privacy,” atS., in her 410 U. isolated woman cannot be nant pregnancy typically involves the de- of a the termination 159; entity: one answers the fetus. However struction of another theological question metaphysical the fetus is or whether the “person” legal question being” a or whether is a “human the least Constitution, in the one must at as that term is used entity recognize, in its the fetus is an that bears first, that genetic information that a member all the characterizes cells distinguishes sapiens species and an individual homo the species others, from all and second, of that member nonarbitrary separating line a fetus from a child is no there being. that the continued an adult human Given or, indeed, say, development is to such existence life—of —that directly entity in the decision are so at stake woman’s pregnancy, her that decision whether or not terminate generis, recognized in from sui different kind must be as protected per- that the Court has under the rubric others family privacy autonomy.2 Accordingly, sonal Griswold, decision, protected in abortion like the decisions That Carey, (or, family Eisenstadt, generally, childbearing concerns more life) holding liberty in no that the to choose abortion sense necessitates That involves the of the fetus “fundamental.” the decision destruction from in first different kind the decision not to conceive renders it go merely weight inter place. This difference does not the state abortion; as lib regulating it affects well the characterization est in liberty if to make re erty interest itself. For certain decisions with “fundamental,” spect contraception governmental without constraint only “important” decisions are “serious” and to the it is not because those ante, (Stevens, J., individual, concurring), at 776 but also because see autonomy privacy implicit some value of or individual is somehow supports of ordered liberties established Constitution the scheme government’s decisions are none of business. judgment that such opinion decisions cited the Court both in Roe and in its today precedent as liberty for the fundamental nature of the accepted to choose abortion do if not, even all are as valid, dictate the Court’s classification. liberty

If the woman’s to choose an abortion is funda- (aside any precedents mental, then, it is not because of our itself) justify from Roe command or that result; it can protection unique because “implicit for this choice is itself concept liberty” perhaps, “deeply of ordered or, rooted history this Nation’s and tradition.” It seems clear to me opinion that it is neither. The Court’s Roe itself convinc- ingly liberty deeply refutes the notion that the abortion is history people, in rooted or tradition of our as does the continuing deep people division of the themselves over question of abortion. As for the notion that in choice implicit concept matter of abortion in of ordered lib- erty, apparent egalitarian, it seems to me that a free, society presuppose any particular democratic does not rule or respect again, set of rules with to abortion. And the fact many good high that men and women of will and commitment government place to constitutional themselves on both sides controversy strengthens my of the abortion own conviction animating compel that the values the Constitution do not rec- where, here, same cannot be said as the individual is not “isolated her privacy.” My point by can drawing be illustrated on a related area in which funda- liberty mental interests have been childrearing. found: The Court’s deci- Cleveland, sions in Moore v. Society Sisters, East Pierce v. Meyer v. Nebraska can be read for the proposition parents have a funda- liberty respect mental to make upbringing decisions with to the of their suggest liberty children. But no one would that this fundamental extends upon parents. to assaults committed children their It is not the case parents liberty have a engage fundamental in such activities and may prevent only that the State intrude to them compel- because it has a children; ling well-being rather, activities, interest in the such their nature, very should be scope viewed as outside the of the fundamental lib- erty interest. liberty

ognition In so de- as fundamental. of the abortion liberty, engages nominating constitu- the Court imposition interpretation, of its in the unrestrained but tional preferences.3 value own, extraconstitutional B equally error infects the Court’s decision A basic second, governing re- detailed set of rules state Roe Wade. The in Roe that the first articulated strictions on abortion Court only presupposes not since refined and elaborated and has liberty to choose an abortion is funda- that the woman’s countervailing interest in also that the State’s mental, but (or, “potential protecting it, would have fetal life as 159) “compelling” S., at at life,” human U. becomes point As at which the fetus viable. O’Con- Justice years ago pointed Akron v. out three her dissent nor Reproductive Health, Inc., S., at Center U. Akron viability point at as the which 461, the Court’s choice entirely arbitrary. compelling is interest becomes State’s “explanation” line has that the for the drawn is Court’s viability compelling becomes “because State’s interest meaningful capacity presumably life out- then has the fetus S.,U. at 163. As one critic side the mother’s womb.” asserts, ante, in Justice “quite wrong sug at I am Stevens that preferences anyone gesting imposing that Court is value on else” when (in liberty to “fundamental” contra it denominates the choose abortion as other, liberty to nonfundamental liberties as the use distinction to such governmental dangerous drugs operate a business without interfer to ence) majorities thereby disempowers legislating state from and electoral respond in that I cannot of a definition of the this area. I can conceive preferences” encompass the Court’s phrase “imposing value that does not action. Stevens

Justice suggests legislative majority it is the that also that own, imposition of extraconstitutional engaged has in “the unrestrained its availability legislature a preferences” when state restricts of value court, power Ibid. But a legislature, unlike a has the inherent abortion. constitutionally forbidden, which, my in its to do so unless choices are view, is not the case here.

of Roe has observed, argument this “mistakes a definition for a The A syllogism.” Ely, Wages Crying of Wolf: Comment Wade, on Roe v. 82 Yale L. J.

The interest is in governmental at issue protecting those who will be citizens if their lives in are ended the womb. The in of this interest no substantiality way dependent is on the probability that the fetus may capable surviving outside the womb any given its point development, as of fetal survival possibility is state contingent medical and practice technology, factors that are essence and morally constitutionally irrelevant. The State’s interest inis the fetus as an entity itself, the character of this does not at the entity point of under conven- change viability tional medical wisdom. the State’s Accordingly, interest, if after compelling viability, is equally before compelling viability.4 ibid,.,

4 Contrary to suggestion, Justice Stevens’ is no more a position “theological” judgment than is the viability Court’s own that point at which the compelling. (Interestingly, state interest becomes Justice any judgment.) Stevens omits real effort defend this to The point specific recognized interest the Court has as compelling is, point viability protecting “potential after the the interest —that present viability, human point viability life” —is as well before and the relationship strength seems to bear no discernible interest. Thus, no concluding there is basis for that the essential character of the point viability. state interest becomes transformed at the Further, legislative it is self-evident that neither decision assert a viability judicial state in fetal life recog- interest before nor decision to impermissible compelling “religious” nize that interest as constitutes de- merely cision religions. because coincides with the belief of one or more Certainly prohibition the fact that the of murder coincides with one of the Ten Commandments does not render a State’s interest in its murder stat- compelling, legislative judicial utes are less than nor decisions concern- ing penalty correspondence the use of the death tainted their to varying religious subject. simple, perhaps unfortunate, on that views fact determining of the matter is that whether to assert an interest in fetal life, taking position correspond cannot avoid will State some reli- gious and contradict others. The same is true to extent beliefs some with respect characterizing choice in to the this Court faces an asserted state

c as funda- liberty of the abortion characterization Both the interest preserv- of the State’s denigration mental and the detailed to the fetuses are essential nonviable the lives of ing to limit the devised the Court rules constitutional set of If or both of these either abortion. regulate power States’ limita- a range broad rejected, Roe v. Wade were facets of are now prohibition) (including outright abortion tions on constitutional become again to the States would unavailable possibilities. desir- highly state of affairs would be view, such a my

In is a Abortion of the Constitution. standpoint from the able issues, our and issue. Such political contested moral hotly either as resolved the will of the people, are to be society, general princi- through legislation through expressed into the Constitution already incorporated have they ples the people Roe v. Wade implies have they adopted.6 “compelling” life, denying an interest is a one for that such interest fetal “religious” issue of the hu- necessarily negative resolution of the entails fetus, compelling interest as accepting the State’s manity of the whereas congruent decision that is with least tolerance for state reflects at begins conception. Faced position that human life at equally “religious” is decision, appropriate course of action for the Court the most with such a words, in other if a state legislative resolution of the issue: defer to a life, I no satisfac- protecting interest in fetal can see legislature asserts an denying compelling. tory basis ante, n. finds a contradiction Stevens, 776-777, see Justice analysis requires than more my recognition that constitutional between Framers, specific intent of the analysis or a search for mere textual people ultimately the will of the my assertion that it is supra, at incorporated in values are the Constitution. that is the source of whatever rejection argument glaring. The fallacy of Justice Stevens’ Ely, interpretivism, J. as “clause-bound” of what has been characterized necessarily carry a re Democracy does not with it (1980), and Distrust adjudication is a search for values jection the notion that constitutional (and explicit) rights implicit the structure principles that are implications created. The people that the have themselves institutions many if not most particular issues will values for the resolution of those were explicitly the values themselves have been considered when cases not

797 have resolved the already by debate into the Con- weaving stitution the values and that answer the issue. As principles I I argued, have believe it is clear the that have people 1787, 1791, never —not in 1868, or at any time since —done I any such return thing. would the issue to the by people Roe v. overruling Wade.

II it in As has evolved the of Court, decisions the free- dom in recognized by the Court Roe v. Wade its progeny is essentially negative one, based not on the notion that itself, abortion is a but on the view good that le- that be gitimate goals may served state coercion of private choices abortion regarding are, at least under circum- some stances, outweighed by individual damage autonomy such that coercion entails. In other privacy words, the evil of abortion does not the evil of it. justify Cf. forbidding v. Stanley But U. S. 557 Georgia, precisely be- Roe cause v. Wade is not on premised the notion that abor- (either tion is itself desirable as a matter of en- constitutional titlement or of policy), social the decision does not command the States to fund or encourage abortion, or even to approve indeed, there will be some cases which those who framed the chosen — provisions incorporating principles certain into the Constitution will be found to have been incorrect in their consequences assessment of the See, g., Education, their decision. e. Brown v. Board S.U. (1954). Nonetheless, the hallmark of a correct decision constitutional principles law that it people through rests on selected their Con stitution, merely personal philosophies, they on the libertarian authoritarian, majority. the judges of the While constitutional adjudication judgments value, it involves remains the case that some “extraconstitutional,” they values are indeed that have no roots people Constitution have chosen. The in Lochner Court’s decision York, (1905), wrong v. New 198 U. S. 45 was because rested on the liberty belief engage occupation Court’s a trade or with governmental regulation out was somehow fundamental —an assessment of unsupported by value that was I Roe Constitution. believe that today’s similarly Wade — and decision as well —rests extraconstitutional liberty assessments of value of to choose an abortion. may legiti- recognized that the States Rather, we have

of it. policy encouraging mately adopt childbirth rather normal through pol- long as measures which so than abortion icy implemented compulsion do not amount direct regarding McRae, 448 abortion. Harris v. woman’s choice (1977); (1980); Beal v. Roe, 432 U. S. Maher U. S. provisions The before the Court 432 U. S. Doe, today quite imple- obviously represent to the State’s effort policy. ment such a majority’s opinion no the evinces deference toward

The majority legitimate policy. it makes clear Rather, State’s any attempt by simply disapproves it from the outset history legislate Pennsylvania to this area. decade-long legislature’s pass effort a constitutional state to if it of some recounted as were evidence abortion statute is conspiracy. ante, fact, course, See at 751-752. In sinister predict legislature’s past failure to evolution right recognized in Roe first v. Wade is understandable and ground leg- Moreover, for condemnation. itself no willingness pursue permissible policies through to islature’s by existing precedents go to limits allowed means that majority, sign however, of mens rea. The seems to find no by changing necessary respond rules to to invalidate permissible. The have seemed result is a what before would justification previous no in the that finds Court’s decision principles holdings, departs from of constitutional and sound unduly statutory interpretation, power limits the State’s (and legitimate implement com- some circumstances encouraging preference pelling) policy normal childbirth to abortion.

A by striking statutory provisions begins The Court down de- signed an that the woman’s choice of abortion is ensure only fully is, that she is aware not of the rea- informed—that having abortion, also of the risks associated sons for an but availability might and the of assistance that with abortion make the alternative of normal childbirth more attractive might appear. than it otherwise At first blush, the Court’s extraordinary: purports action seems all, after Roe v. Wade statutory provisions to be about freedom of choice, re- quiring seeking that woman an abortion be in- afforded regarding formation her decision not do limit her ability appear abortion, to choose but' also would enhance by helping her freedom of choice to ensure her decision pregnancy whether not to terminate her is an informed one. patient’s Indeed, maximization the freedom of choice—not liberty generally perceived his restriction of or her to be —is principal justifying imposition value of disclosure re- quirements upon physicians: premise concept, root

“The is the fundamental in jurisprudence, ‘[ejvery being American human years right adult and sound mind has a to determine ’ body. what shall be done with his own . . . True con- happens sent what to to one’s is self the informed exer- opportunity choice, cise of a entails to evalu- knowledgeably options ate the available and the risks upon average patient attendant each. The has little or understanding ordinarily no arts, medical has physician enlightenment his to whom he can look for intelligent with which to reach an decision. From these springs almost axiomatic considerations the need, and requirement, divulgence by in turn of a reasonable physician patient possible.” to to make such a decision Canterbury Spence, App. 150 U. C. 263, S. D. (1972).

464 F. 2d majority’s opinion convincing One searches vain for a why apparently policy promoting reason laudable of in- subject formed consent becomes unconstitutional when the is majority purports support abortion. The to find in Akron Reproductive Health, v. Akron Inc., Center 462 U. S. for controlling. But Akron is not The informed- provisions case, as characterized struck down that consent physician majority, required to advance tenden- question concerning the unanswerable tious statements merely speculative descrip- begins, offer human life when of the fetus carried tions the anatomical features “parade seeking abortion, and to recite a woman particularly suggesting is “a dan- that abortion horribles” quarrel gerous procedure.” I Id., have no with at 444-445. general proposition, to stand, which I read Akron campaign state-promulgated disinformation cannot that a justified in consent” or “freedom name of “informed be Pennsylvania us cannot But the statute before of choice.” sharing the flaws the ordinance issue be accused majority concedes, not, the statute does Akron. As the require patient given any that the information face, its unquestionable it is Moreover, false or unverifiable. required would the information be relevant that all of many whether or not to obtain an cases to woman’sdecision abortion. major-

Why, then, is the statute unconstitutional? primarily appears ity’s argument, rhetorical, offer while provided First, three the information that must be answers. the woman’s will in some cases be irrelevant decision. pertinence question to the of the statute’s This is true. Its beyond Legislators constitutionality, me. are however, general- ordinarily proceed of rational entitled to on the basis subject legislation, matter of exist- izations about the per- particular a feature of a ence of cases which statute (or counterproductive) ordinarily forms no function even render the statute unconstitutional or even consti- does not suspect. Only subject tutionally where the statute is impingement heightened scrutiny virtue its some employment right suspect or its of a fundamental classifica- imprecision tion of the “fit” between the statute’s does damning. potentially Here, ends become there and means scrutiny, trigger nothing to such for the statute does not di- rectly infringe allegedly right fundamental at issue—the right woman’s to choose an abortion. I Indeed, fail to see providing how a woman with accurate information—whether impair any relevant or irrelevant —could ever be deemed (even constitutionally protected majority interest if, as the her). hypothesizes, may upset the information Thus, the majority’s may require pro- observation that the statute vision of irrelevant information in some cases is itself an irrelevancy. majority appears

Second, to reason that the informed- provisions they consent are invalid because the information require may “anxiety” proce- increase the woman’s about the Again, dure and even “influence”her her choice. both ob- undoubtedly they by servations are true; 'but no means cast constitutionality provisions question. into It is very provisions they may nature of informed-consent produce anxiety patient some in the and influence her her pro- choice. This is in fact their reason for existence, and— required vided that the information is accurate and non- misleading entirely salutary is an reason. If information —it may reasonably patient’s patient affect the choice, the should authority have that information; and, as one has observed, greater particular “the the likelihood that information will patient’s] [the influence the more decision, essential the in- arguably securing formation becomes for her informed con- Appleton, sent.” Doctors, Patients and the Constitution, provi- Wash. U. L. That Q. 183, the result of the may forgo sion of information be that some women will abor- suggests providing tions no means the information is objective unconstitutional, for the ostensible Roe v. Wade maximizing maximizing is not the number of abortions, but Moreover, choice. our decisions in Maher, Beal, and Harris may encourage v. McRae all indicate that the State women to make their choice in favor of childbirth rather than abortion, provision regarding and the of accurate information abortion of achiev- is a reasonable and fair means its alternatives and objective. ing that majority concludes that the informed-consent

Third, the they upon “intrud[e] provisions the dis are invalid because physician,” pregnant vio ante, woman’s cretion of dialogue privacy of the informed-consent between late “the “officially physician,” and struc ibid., and her the woman ture]” dialogue, provisions thus con ante, at 763. The that “infringes upon physician’s] [the stitute “state medicine” responsibilities.” professional I Ibid. This is nonsensical. protection its that the Constitution extends can concede autonomy personal privacy, see Griswold certain zones concurring in S., 381 U. at 502 Connecticut, (White, J., judgment), if understand, share, I the notion can protection may to a woman’s decision re that that extend possibility garding I abortion. But cannot concede the protection provides more than minimal for the Constitution physician practices pro her in which a his or the manner “dialogues” in he or she chooses to or for the which fession treating patients. thought participate I course of had practice regu regulation medicine, like it clear that professions generally, and of economic affairs lation of other legisla peculiarly competence a matter within the was regulation subject for and that such was to review tures, rationality. g., Optical e. Lee See, Williamson v. Okla homa, 348 U. S. 483 Inc., scrutiny about the need for strict

Were the Court serious infringe “judgment” pro- regulations on the of medical patients, their relations with their fessionals, “structure” many telling medicine,” to “state there is no how amount (not principles of state state and federal statutes mention law) practice might governing the of medicine be con- tort why course, there would be no reason demned. And professional for freedom could be confined to the concern profession: nothing in the Constitution indicates medical liberty lawyers, preference of doctors over that of Accordingly, accountants, bakers, or if brickmakers. may dialogue State not “structure” the between doctor and patient, may it should also follow that the State for ex not, ample, require attorneys to disclose to their clients informa concerning representing par tion the risks of the client in a proceeding. upheld course, ticular Of we such disclosure requirements only last Term. See Zauderer v. Dis Officeof ciplinary Counsel, 471 U. S. 626 regulate practice

The rationale for state efforts to of a profession simple: government or vocation is is entitled profession police not to trust members of a to themselves, accordingly legislature may part impose for the most practice profession such restrictions on the of a or as business may necessary protection public. find to the This is precisely infringing professional the rationale for freedom by imposing requirements upon of doctors “Respect disclosure them: patient’s right par- for the of self-determination on therapy physicians ticular demands a standard set law for physicians may may impose rather than one which not upon Canterbury Spence, App. themselves.” 150 U. S. willing C., D. 464 F. at 784. Unless one is 2d, entirely respect legitimacy recast the law with to the of state regulation professional rationality of conduct, the obvious policy promoting patient informed choice on the sub- ject any of abortion must defeat claim that the disclosure requirements imposed by Pennsylvania are invalid because they infringe “professional “physician- freedom” or on the patient relationship.” really pro-

I do not believe that the Court’s invocation of signals principle fessional freedom a retreat from the largely the Constitution is unconcerned with the substantive aspects governmental regulation professional and busi- Clearly, majority ness relations. is uninterested un- dermining post-New the edifice of Deal constitutional law extending holding its that do not concern issue cases majority if I assumes, do, of abortion. But one as that the part implications unwilling to the to commit itself process rights of economic due rhetoric which smacks of its “infringe- physicians, that the talk of it becomes obvious for dressing professional responsibility” is mere window ment grounds. holding And must stand or fall on other infringe provisions do the informed-consent because right right to choose of the woman at issue—the essential pro- majority’s that the conclusion have an abortion—the foundation. unconstitutional is without visions are B reporting majority’s re to strike down the

The decision extraordinary. equally quirements The re of the statute is obviously legitimate purposes. in quirements serve highly reports relevant to the formation contained 3210(a) § statute, which for efforts to enforce State’s necessary except to the fetuses when of viable bids abortion concerning complications health. The information mother’s goal advancing legitimate plainly of the state of serves knowledge concerning maternal and fetal health. medical v. Danforth, Parenthood Central Missouri Planned See of subject is a mat that the of abortion S., 428 U. at 80. Given (constrained public interest and debate ter of considerable pre-emptive of this effect extent, course, some of decisions), the collection ill-conceived constitutional Court’s concerning demographic information of and dissemination goal public policy. clearly legitimate of More abortions required re little reason to believe that the over, there is fairly impose though ports, detailed, would an undue burden ability patients impede physicians of their to ob and required neces of the information would abortions, tain as all performed readily physician sarily had available to a who Accordingly, prior decisions under this Court’s an abortion. reporting requirements are constitutional. area, City, Missouri, Inc. Assn. Kansas Planned Parenthood (1983) (opinion Pow- 486-490 462 U. S. Ashcroft, v. J.); id., J.); Planned Par O’Connor, at 505 (opinion ell, supra, enthood Central Missouri Danforth, at 79-81. majority reporting Nonetheless, the strikes down re- quirements notwithstanding explicit because finds that statutory reports public only command be made in a ensuring anonymity, manner “the amount of information patient] [the about and the circumstances under which had she likely,” are abortion so detailed that ante, identification is purpose is the obvious “identification reporting requirements,” these extreme ibid. Where these “findings” mysterious, say come from is the least. The Appeals any findings Court of did not make such on the expressly it, record before and the District Court found that 3214(e) requirements § confidentiality regarding “the identity patient physician prevent any of both inva- privacy present legally significant sion of which could bur- (ED Supp. den on the abortion decision.” 552 F. 791, 804 1982). pointing anything Pa. Rather than in the record that demonstrates that the District Court’s conclusion is majority handy, erroneous, the resorts to the mistaken, but substituting solution of own its view of the facts strikes down the statute. accept proposition purpose

I can that a statute whose and effect are to allow harassment and citi- intimidation of constitutionally protected for zens their conduct is uncon- majority’s striking but the stitutional, action in down the Pennsylvania procedurally statute on this basis is and sub- stantively complete indefensible. a First, it reflects disre- gard principle, for the embodied in Federal Rule of Civil Pro- 52(a), appellate cedure that court must defer to a trial findings findings clearly court’s of facts unless those are erro- expressly applicable findings The is neous. Rule of fact grounds grant- that constitute the for a district court’s action ing refusing preliminary injunction, a and, of course, the degree any Rule this limits Court to the same itas does other Dynam States v. General court, see United federal appellate Corp., ics 415 U. S. 486 seriously has erred

Second, majority purporting of fact, of conclusive the con- a final determination make in- a for statute, preliminary of the on motion stitutionality In the Court overlooks doing, principle so junction. a for of fact on motion findings a district court’s

although entitled to deference on appeal are preliminary injunction a relief, “the of findings or denial of grant preliminary from the . . . a court a granting preliminary injunction fact made trial merits” “a preliminary on the because binding are on the basis of injunction customarily granted procedures less than complete are formal evidence that is less University Camenisch, Texas on merits.” a trial of added). Came- (1981) What 451 U. S. (emphasis nisch true in case: customarily to be true is also stated which the motion preliminary injunction the record on of solely in the trial court consisted affidavits was decided facts, none of which stipulation undisputed provides and a on the ques- a sufficient basis for conclusive finding complex motive and effect of reporting requirements tion of the statute’s protection anonymity adequacy what amounts to a final patients. Issuing of doctors and constitutionality the statute declaratory judgment is highly inappropriate. under these circumstances flawed, in addition the ma- Finally, being procedurally substantively information holding suspect. jority’s in the identifies the on the basis reports patient contained status, marital subdivision” age, race, “political of the information in the residence; the remainder included It is concerns the medical of the abortion. aspects reports could be identified on particular patient implausible in- identifying the basis of the combination general in re- specific formation and the medical information these (at minimum) a who did not know by anyone already ports had obtained an that the woman been abortion. pregnant or Accordingly, pose little no threat to the provisions woman’s privacy. sum,

In there no basis here even for a preliminary injunction against statute, of the reporting provisions much less for a final determination that are provisions unconstitutional.

C The majority resorts to linguistic nit-picking striking the provision down fe- requiring physicians aborting viable tuses to use the method abortion most likely to result fetal survival unless method would a pose “significantly medical risk to the life greater or health of the pregnant woman” than would other available methods. The majority concludes that the statute’s use in- of the word “significantly” dicates the statute represents an unlawful “trade-off” between the health woman’s and the chance of fetal survival. Not is this conclusion based on a in- wholly unreasonable statute, but the terpretation statute would also con- be even if stitutional it meant what majority it means. says The majority the Court of adopts Appeals’ view that “ use of statute’s the term “significantly” renders it 'not sus to a construction that ceptible does not require mother an bear increased medical risk order save her viable (CA3 1984)). Ante, fetus.’” (quoting 737 F. 2d 283, The term “significant” context, natu however, is most read as rally with the terms synonymous “meaningful,” “cog nizable,” “appreciable,” “nonnegligible.” is, That the stat requires only ute risk be a real identifiable one. if Surely, State’s interest the life preserving of a viable is, as Roe fetus purported recognize, one, compelling is at State least entitled to very demand that that interest subordinated to purported maternal health risk that is in fact wholly statute, insubstantial. de face, its mands no more of a than this doctor performing abortion a viable fetus.

808 interpreted properly Pennsylvania as

Even if statute is seeking pregnant requiring of a viable a woman abortion protect of chosen to fetus'to endure method abortion despite of fetus the existence an alternative that health protective degree own is more her some substantial the statute is unconstitu- health, I am not convinced that opinion in its seems to read earlier tional. Court (1979), incorporating a 439 U. as Franklin, v. S. Colautti holding pregnant the health of the that tradeoffs between of her constitution- and the survival viable fetus are woman ally impermissible Roe course, under v. Wade. Colautti Of thing: no the Court there stated that it did held such “serious ethical and constitutional difficulties” address the present. S., such a would 439 U. at 400.6 tradeoff any Nothing previous the Court’s abortion Colautti adopts compels per se “tradeoff” rule the Court decisions today. ruling respect in this consistent

The Court’s not even In con- Roe, its decision Roe Wade. Court with preserving interest in the life a via- ceded that the State’s compelling one, has dis- ble fetus is a never holds that this avowed that concession. The Court now compelling justify any regulation im- interest cannot upon pregnant poses quantifiable woman medical risk attempting if to seeks to abort a viable fetus: save who any injury imposes woman, to the she fetus additional risk hardly permitted holding kill it. This must be to accords understanding “compelling the term inter- with the usual governmental we used weighty describe those est,” which have justify substantial and interests that are so as impermissible impositions ordinarily on the individual—im- thought, positions I the infliction of that, had could include to have Interestingly, the Court’s statement seems assumed authority questions” had over “ethical as “con Court would have the same illuminating had them —an revelation stitutional issues” it chosen reach jurisprudence in this area. of the state of the Court’s degree physical some of risk of harm. The most il- obvious principle may opinion lustration of this be found in the elder Justice Harlan Jacobson v. Massachusetts, U. S. (1905): liberty 11, 29 “The secured the Fourteenth part, right person Amendment. . . in consists, of a ‘to Allgeyer live and work where he will,’ Louisiana, yet may compelled, by 578; U. S. he be if be, force need against regard personal his will and without to his wishes or pecuniary place his interests, ... to take his in the ranks of army country being of his and risk the chance of shot holding down in pro- its defense.” The actual of Jacobson pertinent vides particular another illustration, more to this regulation case: requiring the Court there sustained a all Cambridge, adult citizens of Massachusetts, to be vaccinated against smallpox, notwithstanding exposure to vaccina- possibility tion carried with it a statistical of serious illness examples and even If, death. as I believe these demon- compelling may justify imposition strate, a state interest physical danger upon of some an individual, and if, as the compelling held, Court has the State has a interest preservation majority’s of the life of a viable I fetus, find the unwillingness imposition any nonnegligible to tolerate the injury pregnant protect risk of to a woman order to the life baffling. of her viable fetus the course of an abortion ruling today any The Court’s tradeoff between the impermissible woman’shealth and fetal survival is is not recognition compelling inconsistent with Roe’s of a in- state directly terest viable fetal life; contradicts one of the es- holdings may sential is, Roe—that that the State forbid all postviability except necessary protect abortions when pregnant life or health woman. As evident, holding itself involves a tradeoff between maternal health protection plainly permits of the fetus, for it the State to postviability forbid a abortion even when such an abortion may statistically carrying pregnancy safer than medically necessary.7 provided is not that the abortion term, Pennsylvania statute, even as in the The tradeoff contained by majority, interpreted in kind: the is no different State simply required kind is an abortion of some that when has spare medically necessary, so as to it shall be conducted (to possible) greatest degree method less unless a fetus protective medically degree nec- itself to some

of the fetus is may essary the im- That this choice involve for the woman. undergoing position the abortion of some risk on the woman prohibition that a no more troublesome than should be may imposi- nonnecessary postviability involve the abortions thereby to con- on women who are forced tion of some risk yet pregnancies reason, the for some term; tinue their the tradeoffs it devises are Court concludes that whereas essentially indistinguish- compelled by Constitution, the attempted This has is foreclosed. able tradeoff the State cannot be the law. rights devised

The framework of and interests may pro- just in Roe v. indicates that as a State Wade necessary protect postviability unless it is to hibit a abortion may require that woman, health of the the State the life or postviability using the method most abortions be conducted protective protective a less method is nec- of the fetus unless essary protect life health of the woman. Under this Pennsylvania require statute —which does not standard, accept any significant protect health risks to woman plainly the fetus—is constitutional.

D second-physician the statute’s re- The Court strikes down quirement view, in its the existence of a medical because, emergency requiring an immediate abortion to save the life of pregnant prosecution to a woman would not be a defense argued any delivery than Surely it cannot be abortion that is safer medically necessary, since under such a definition an abortion would be is medically necessary pregnancies. in all question proposi-

under the statute. The Court does not second-physician tion, established in the case, that a Ashcroft requirement accompanied by exception emergencies for is permissible vindicating compelling means of state inter- protecting Accordingly, est the lives of viable fetuses. majority’s ruling on this issue does not on its face involve departure previous a substantial from the Court’s decisions. disturbing opinion point What is about the Court’s on this general principle is not the rests, which it but the manner principle applied. in which that is The Court brushes aside the fact that the section of the statute in which the second- physician requirement imposed “[i]t states that shall be a complete any charge brought against physician defense to violating requirements this section that he had good judgment, concluded, faith, his best medical . . . necessary preserve that the abortion was maternal life added). 3210(a) (emphasis § or health” 18 Pa. Cons. Stat. language obviously susceptible This of the con- namely, struction the State advances: that it is a defense to a charge violating second-physicianrequirement that the physician performing performing the abortion believed that physician an abortion in the absence of a second was neces- sary to the life or health of the mother. rejection

The Court’s of this construction is based on its statutory language conclusionthat the “does not relate to the second-physician requirement” and that “its words are emergency.” reasoning Ante, words at 771. This eludes necessity any charge me. The defense of medical “relates” to requirements that a doctor has violated one of the of the sec- appears, second-physician require- tion which it and the imposed by quite ment is that section. The defense thus evi- dently second-physician requirement. “relates” to the True, emergency,” the “words” of the defense are not “words of but necessity. Why words of this should make a difference is necessity fully protec- unclear: a defense of medical is as pregnant tive of the interests of the woman as a defense of “emergency.” ibid., falls on back, provide The the notion medical-emergency legislature how to a “knows the exception the to so.” No But when it chooses do doubt. provide obviously legislature to a medical- also “knows how” Why exception necessity exception, it has so. this done inexplicable. unexplained and is insufficient is perfectly plausible reading rejection a of the The Court’s today principle I face of the until flies the statute —which thought applicable as to other to abortion statutes well as had legislative “[wjhere fairly possible, courts enactments —that danger to avoid a unconstitu should construe statute City, tionality.” Mis Planned Parenthood Assn. Kansas souri, Inc. v. 462 U. at 493. Court’s read Ashcroft, S., entirely principle: ing obviously different is based permissible involving reading abortion, of a statute cases sharing viewpoint, I at all costs. Not is to be avoided accept majority’s conclusionthat does cannot the the statute equivalent emergency.8 provide for the of a defense of

E preliminary Finally, majority the in- refuses to vacate against junction parental no- entered enforcement provisions statute. See ante, tice and consent propriety injunc- n. 9. The reason offered that the of the recently pro- depends adequacy upon rules, tion mulgated Pennsylvania Supreme setting Court, forth accept majority’s if I conclusion that the medical- Even were to 3210(a) necessity applicable § specifically charges is not to defense of 3210(c), § brought under I would not strike down statute. Under law, defense, justification see Pennsylvania criminal is a 18 Pa. Cons. Stat. (1982), and, general justification, § rule of under conduct is deemed necessary avoid justified [it] if “the actor believes a harm or evil to another,” sought and “the harm or evil to be avoided . . . such conduct sought prevented by to be law greater defining than that the offense 503(a)(1). Pennsylvania ap § little charged.” I have doubt that a court plying noncompliance second-physician find with the this statute would necessary justified pregnant life of the rule where save the woman. procedures by desiring may speed- which a minor an abortion ily confidentially judicial approval obtain either of her judicial decision obtain an abortion or a determination that capable proce- she herself is an informed consent to the dure. The Court concludes that of the review rules is best in carried out the first instance the District Court. compels

The Court’s decision in Ashcroft, however, the directing conclusion that the Third Circuit erred in that the operation parental provisions of the notice and consent enjoined pending promulgation required rules; accord- ingly, injunction irrespective should be vacated adequacy Appeals apparently rules. those As the Court of recognized, Pennsylvania on its statute, face, sub- stantively upheld by identical to that the Court in Ashcroft; injunction by sole for thus, the basis ordered the Court of Appeals procedural implementing was the absence of rules Appeals recognize the statute. What the Court of failed to plaintiffs challenging was Court denied relief to the despite purported the statute same defect: Ashcroft Supreme yet pro- case, this, as in the State had not mulgated establishing expedited procedures rules called opin- Nonetheless, the statute. as Justice Powell’s plaintiffs explained, any ion were not entitled to relief against statutory “[t]here scheme, enforcement as [the State] expedite any no reason believe that will not appeal prior opinions.” consistent with the mandate in our Similarly, n. S., 462 U. 16. was there no reason here Appeals Pennsylvania for the Court of to believe that would provide adequate, expedited procedures for the contem- plated entry injunction against statute; thus, its of an enforcement the statute was erroneous.

Ill today appears symptomatic The decision of the Court’s insecurity own its over handiwork Roe v. Wade following cases that decision. Aware that Roe it essen- nothing tially something out of and that there are created basically many country hold that decision to be in this who defensively. responds Perceiving, illegitimate, in the Court prefer- legitimate policy implementing of the State’s a statute ring or of the deci- abortion, threat to criticism childbirth indiscriminately majority strikes Wade, Roe v. sion statutory provisions way no contravene the down warped point right recognized in I Roe. do not share the of path majority, can I of nor follow tortuous view the majority proceeding to strike down statute be- treads fore us. I dissent. with whom Justice Rehnquist O’Connor,

Justice dissenting. joins, already decisions have worked a

This Court’s abortion jurisprudence. major in the Court’s constitutional distortion Reproductive Health, Inc., Akron v. Akron Center See for (1983) dissenting). J., 452 To- 462 U. S. (O’Connor, painfully day’s goes it clear further, and makes decision legal no by rule or doctrine is safe from ad hoc nullification application its in a

this when an occasion for arises Court permissible involving regulation case state of abortion. The regulation scope is not the constitutional abortion except divided, it issue which this Court when but — generally comes Court has refused to let to abortion—the deeply disagreements, longstanding felt, such however evenhandedly applying legal prevent it from uncontroversial it. doctrines to cases that come before See Heckler v. (1985); Chaney, id., 2 839-840, 470 U. S. n. (differences concurring) validity J., over (Brennan, penalty Eighth the death under Amendment should not question statutory consideration of a influence Court’s law). That scheme administrative the Court’s unworkable regulation constitutionalizing the has abortion had institutionally debilitating surprising, effect should not be expansive since Court is suited role however, began has claimed for itself the series of cases that with Wade, Roe v. S.U. today “[t]he Appeals

The Court holds that Court cor rectly specified provisions Pennsylvania’s invalidated the doing, 1982Abortion Control Act.” In Ante, at 772. so prematurely questions decides serious constitutional inadequate princi on an record, contravention of settled ples adjudication procedural of constitutional fairness. constitutionality challenged provisions was not properly Appeals, properly before the Court of and is not before this Court. There has been trial on no the merits, appellants opportunity develop have had no to facts that might bearing constitutionality a have on the of the statute. question only properly The before the Court is whether or injunction preliminary not a should have been issued to re challenged provisions pending strain of enforcement the trial on the merits. This Court’s decisions Akron v. Akron Reproductive supra, Center Health, Planned Parenthood for City, Assn. Missouri, Kansas Inc. v. 462 Ashcroft, U. S. (1983), Simopoulos Virginia, (1983), 476 462 U. S. 506 appellees do not establish a likelihood that would succeed on the merits of their constitutional claims sufficient to warrant overturning preliminary the District Court’s denial a in junction. approach regulation Under the to abortion out my dissenting opinion in Akron, lined I to which adhere, preliminary injunction it is even that no clearer should have I issued. therefore dissent.

I The issue before the District this case was grant appellees’ preliminary injunc- whether motion for a against Pennsylvania’s tion enforcement of Abortion Control Act. limited record before the District Court consisted parties’ appellees, of affidavits submitted the memoranda including findings Pennsylva- itself, the Act law, of the Legislature, stipulation nia and a of uncontested facts. As stipulation Judge into “was entered noted, District this preliminary injunc- solely purpose of motion for for 1982). (ED Supp. Indeed, n. 1 Pa. 791, 794, tion.” F. provided stipulation parties expressly should any any party’s right prejudice to controvert “without any prove any proceeding later additional facts at facts or to App. light stipulation In 9a-10a. of the in this action.” testimony or evidence was submitted facts, no uncontested preliminary injunction. hearing motion on the Judge’s circumstances, In these the District consideration governed letter motion him was black of the before recapitulated University Camenisch, Texas v. law (1981): S. U. merely injunction purpose preliminary

“The of a parties preserve positions relative until a trial purpose, on the merits can be held. Given limited necessary given posi- if the haste that is often those preserved, preliminary injunction tions are to be procedures customarily granted the basis that are on complete in a and evidence that is less than less formal party required to merits. A thus is not trial hearing, preliminary injunction prove case full at a his findings the of law made a fact conclusions preliminary injunction binding granting a are court not light considerations, In at trial on the merits. of these generally inappropriate it is for a federal court at the give preliminary-injunction stage judgment to a final on the merits. expedited appro-

“Should an decision on the merits be 65(a)(2) priate, Rules of Proce- Rule of the Federal Civil provides securing per- a one. That Rule dure means on mits a to ‘order the trial the action the merits court hearing the of the to be advanced consolidated with may application.’ however, Before issue, such order commonly required parties the courts have ‘the normally unambiguous [of clear and notice should receive hearing] the intent court’s to consolidate the trial and the hearing either before commences or at a time which parties opportunity present will still afford the a full to (citations omitted). respective their cases’” Judge scrupulously The District to adhered these settled granted principles. preliminary injunction He as to one provision preliminary Act, of the and denied relief as to all challenged provisions. Having the other no seen occasion properly rendering issue a Rule 65 order, he from refrained judgment by declaratory judgment final on the merits Judge prelimi- otherwise. That the District understood nary proceedings, accordingly, nature of the and ruled incontrovertible: applied applicable

“I have the traditional a criteria injunction: preliminary motion for likelihood of success irreparable merits, harm if the relief is granted, possibility non-moving party, harmof to the public. and where harm to the relevant, Given the im- portance right litigation, involved I have plaintiffs if assumed that were able show likeli- irreparable merits, hood of success on the then the harm requirement I would be met. that in conclude one waiting period, plaintiffs the 24-hour instance, did the carry demonstrating their burden of likelihood of success on the merits.

“My adjudication plaintiffs’request limited to preliminary injunction. It is circumscribed produced by parties arguments record and the ad- applying vanced in the briefs After on this motion. preliminary injunction, criteria for I conclude that the only portion plaintiffs of the Act which have demon- preliminarily enjoined strated should be is the 24-hour waiting period. respects, plaintiffs In all other the have right preliminary injunction pending a failed to show to a 818 ” Supp., F. at on the merits. 552

the of the trial outcome original). (emphasis correctly “[t]he Judge tradi- The discerned that District requires preliminary injunction granting a for tional standard plaintiff of he will show that in the absence its issuance likely prevail irreparable injury he is and also that suffer Inn, 422 U. S. Inc., Doran v. Salem on merits.” (1975). Unsurprisingly, on the the likelihood of success Judge’s emerged, in as the most im- view, merits portant the District determining injunction should factor whether Judge In the District denied sum, issue this case. when injunction, faithfully appellees’ preliminary he motion for a ruling applied such motions uncontroversial criteria for on any sense intended a decision that “was not and rendered constitutionality challenged as a final decision as to the Chote, Brown S. statute.” U. Appeals appeal taken to the Court of for

When the was Circuit, court’s should have been lim- the Third that review determining District had abused ited to whether the Court denying 'preliminary supra, Doran, relief. its discretion Appeals supra, If Brown, at 457. 931-932; legal that the District Court had committed errors concluded appellees its assessment the likelihood that infected Appeals merits, should would succeed the Court remaining up factors that make then have addressed preliminary injunction inquiry. If it concluded denial injunction preliminary discretion, an abuse of was entry judgment providing it have entered of a should preliminary injunction. it not have done, What should binding was declaration on the do, final, what did to issue appellees’ constitutional claims. merits of appeals that a court of should ordi- Court concedes narily preliminary injunction of a under an review denial standard, and it that a court of abuse appeals discretion concedes ordinarily assessing “prob- confineitself to should ability plaintiffs would succeed on the merits.” purports exception

Ante, at 755. But the Court find Youngstown to this rule the decisions Sheet Tube& Co. Sawyer, (1952), 343 U. S. and Smith v. Vulcan Iron Works, 165 U. S. 518 It asserts that these cases ruling solely indicate that “if a district court’s rests on a premise applicable as to the law, rule of and the facts are es- controlling ruling may tablished or of no relevance, that though appeal entry pre- reviewed even is from the of a liminary injunction.” Ante, at 757. The Court then an- requirement appellate nounces that proceed review under the deferential abuse of discretion standard is “a rule orderly judicial judicial administration, not a limit on power.” Postulating Ibid. Appeals that the Court of had a “full record before it on the issues now us,” ibid., before Court concludes that this “full record,” and the fact that this Simopoulos Court’s decisions Akron, Ashcroft, were during pendency appeal, justified handed down of the Appeals proceeding plenary Court of “in review of those Ante, issues.” at 757. analysis proceedings

This mischaracterizes the in the Dis- unsupported by precedent logic. trict Court and is No legal premises one doubts that the on which the District Judge proceeded were reviewable. But the fact is that Judge “ruling” District did not make the final, definitive imputes only “ruling” merits the Court to him. The Appeals respect Court of had before it with to the merits was a determination of “likelihood of success” based on facts stipulated only purposes preliminary which were injunction arguments motion, and on framed with a view to- upon ward those facts. Nor was there a “full record” Appeals which the Court of could decide the merits. The precisely pointed Court falls into the error out Camenisch, unanimously rejected 451 U. S., where this Court proposition propriety prelimi- that determinations on the nary underlying relief are “tantamount to decisions on the “improperly equates merits,” because that view ‘likelihoodof important, ig- ... ‘success,’ with and what more success’ significant procedural prelimi- differences between nores injunctions.” nary permanent Appeals that was convinced the District

The Court of Appeals Judge, in on the of the Courts of reliance decisions in Akron had taken Ashcroft, were later reviewed applicable of law which this Court’s decisions a view the Citing Apple to be erroneous. cases demonstrated those Computer Corp., Computer, 1240, Franklin 714F. 2d Inc. v. (CA3 1983), 53, Court’s Rule 464 cert. dism’d under this 1242 “[t]he (1984), Appeals stated that of 1033 U. S. ruling customary a court’s on accorded to a district discretion yields injunction plenary scope preliminary review to our of applicable Apple to the law.” 737 F. 2d 290 283, as Judge Friendly’s Computer, opinion for turn, relied on 263, in Donovan v. Bierwirth, the Second Circuit F. 2d (1982): “Despite re denied, cert. U. S. oft 269, preliminary injunc peated that the issuance of a statements judge the trial tion rests the discretion of whose decisions appeals ‘abuse’, for court of must will be reversed proceeded if on the district court has the basis reverse applicable of the or of the law, an erroneous view standards (cita interlocutory governing granting or denial of relief” omitted). tions reasoning, goes only however,

Donovan’s standard appellate review, not to the extent of the issues to be approach sound, it reviewed. Whether not Donovan’s court does not have discretion to rule is clear a district misapprehension controlling law. But the basis of a assuming, arguendo, appeals de- that, where a court even may engage in de novo error, then review of tects such injunction preliminary determination whether a should 2d, at such discretion does not ordi- issue, 270, see 680 F. narily deciding controversy the merits with extend to Friendly finality. thing Judge in Donovan, id., did no such Apple Computer, nor did the Third Circuit see 714 F. 2d, at 1242. legal principle. is at matter of

What issue here is a As previous has on a occasion: observed Justice Blackmun injunction preliminary “The distinction between and final stages proceeding of a The more than formalism. mere pressures request preliminary injunc- time involved a for a require tion courts make determinations without the aid briefing development, of full or factual and make all such de- necessarily provisional.” Firefighters terminations v. Stotts, (1984)(dissenting opinion). 603-604, 467 U. S. n. 7 holding today expense of the Court thus comes at the principle underlying basic the framework set out in Came- ruling preliminary injunction: nisch on motion afor parties adjudication disputes to the fairness and reliable require binding rulings controversy final, on the merits of a only opportunity to made after each an side has had to disputed its establish version or to facts establish that dispute. are facts not Equally neglected by principle, a is second closely related to the first:

“Ordinarily appellate give an court does consideration procedural to issues not raised below. For our scheme contemplates parties shall to come issue in the trial authority questions forum vested with to determine parties may fact. This is essential in order that have the opportunity they offer all the evidence believe relevant competent to the issues which the trial tribunal alone equally litigants decide; essential order that may surprised appeal by not be on final decision there of upon they opportunity issues which have hád no to intro- Helvering, duce evidence.” Hormel v. 312 U. S. 552, Singleton (1976); See v. also 428 U. 120-121 Wulff, S. cf. (1949) curiam) (per Filson, Fountain 336 U. S. (reversing summary judgment appeal a order “made on on a opposite party opportunity no had to which the issue as new court”). on present The cases before the trial a defense simply support the short shrift do not which the Court relies gives principles. these basic the Court Youngstown in- Co., Truman, Tube President Sheet & In precipi- voking threat to the national defense immediate industry, nationwide strike the steel a threatened tated Secretary mills the steel of Commerce to seize ordered keep running. at 583. steel com- S., 343 U. them injunc- declaratory judgment, preliminary sought panies injunction against permanent seizure, on the and a tion, authority grounds it. had no to order that the President Although “mo- Court had before it the District Ibid. Supp. injunctions” temporary ruled, 103F. when it tions for (DC 1952), light presented, the “in the of the facts 569, 572 delaying decision of the saw no reason District Court validity Youngstown Sheet & of the orders.” constitutional supra, Indeed, 585. the District Court had Co., Tube “com[e] . . . that defendant’s acts are to a fixed conclusion Nothing illegal. at such trial . . that could be submitted . legal I have reached.” facts alter conclusion would Supp., F. at 576. injunction preliminary the District Court’s Thus, Youngstown Tube Co. on what amounted to a & rested Sheet constitutionally declaratory judgment the orders were departure pronounced from nor That itself was a invalid. proper although practice, in the one that this Court found mal Youngstown presented highly Sheet unusual circumstances manifestly essence,* time Tube where was Co., & had been no contention that the Government and there was deprived present opportunity to facts that could have of an compa extraordinary importance prompt resolution of the steel * The granted certiorari before by the fact that this Court nies’ claims shown ruled, days the District Court Appeals three after judgment the Court later, days “[djeeming it argument nine best and set the case for S., promptly this Court.” 343 U. 584. raised be decided issues question. altered the resolution of the constitutional To the contrary, “[plaintiffs preliminary injunc- when moved for a hearing, [defendant opposed tion before answer or the mo- filing tion, uncontroverted affidavits of Government officials describing underlying the facts the President’s order.” 343 (Vinson, dissenting). U. S., at 678 J.,C. foregoing justifications

Neither of the for the District Youngstown Court’s unusual decision to reach the merits in present emergency Sheet remotely & Tube is here. No com- parable Youngstown the one Sheet Tube& confronted Appeals, granted appellees’ the Court of which motion to enjoin pending appeal, enforcement of the entire Act judgment withheld until after this Court had ruled Akron companion and its Appellants cases. 737 F. 2d, at 290. Appeals provisions conceded in the Court of that several the Abortion Act were unconstitutional the wake of those appellants provisions decisions, but did not concede that the Appeals dispositively on which the Court of ruled were un- any suggestion appellants constitutional. Nor is there Appeals conceded in the Court of that there were no factual bearing constitutionality issues that could have a on the provisions. Consequently, preliminary these if even a in- junction proper should have issued, the course would have been to remand for final determination of the merits. Youngstown since

Indeed, Sheet & Tube Co. was decided expressly this Court has reaffirmed that “a state statute should not be declared unconstitutional a district if court a preliminary injunction granted plaintiff protect a his in- during ensuing litigation.” terests Withrow v. Larkin, (1975). Mayo Highlands U. S. See v. Lakeland Canning improper Co., 309 U. S. 310 If it is for a declaratory judgment district court to enter such when it grants preliminary injunction, improper then a it is fortiori appeals for a court of to do so when the district court has appraised hap- the likelihood of success on the merits. What pened Appeals, here is even more extreme: the Court of re- injunction, preliminary in the held viewing a the denial of nothing trial at a could be submitted first instance that “most-of its conclusion alter merits would on the by appellants as a unconstitutional provisions are attacked Nothing Youngs 287. 2d, F. at law.” 737 matter of proper remotely suggests that it was Tube Co. & town Sheet extraordinary step. Appeals take this Court of for the party’s a en that a determination makes clear “Camenisch separate injunction preliminary issue from is a titlement to underlying party’s merits of the of the determination the legal reviewing confuse the court should not and that claim, dissenting). J., S., 467 U. at Stotts, two.” (Blackmun, strays invokes afieldwhen it Smith further even The Court Appeals’ de- of the Court defense Iron Works v. Vulcan despite the fact that the the merits reach and resolve cisionto giving parties done so and without Court had not District present opportunity their cases.” of a full “the benefit... in Smith, trial court at 396. The Camenisch, S., 451 U. patent infringement equity for an “upon of a for the a bill adjudging interlocutory decree, an . entered invention ... infringed, granting patent an valid and had been was that the referring injunction, take an ac- case to a master to (emphasis damages.” profits S., 165 U. count added). alleged challenged court’s the trial The defendant holding patent and that it had valid, was that the “error Appeals infringed.” re- Court of Ibid. Circuit been plaintiff’s rejecting contention that decree, versed injunction only should be “whether an rule on it could plain that under the lan- This Court held Ibid. awarded.” conferring jurisdiction guage Circuit statute appeal Appeals, authorized “from the whole an was part interlocutory not from that decree, order of such injunction,” grants and conse- or continues which “authority quently and de- to consider the statute conferred upon court, at 525. The trial Id., case its merits.” cide the deciding already precisely the issue that, done course, had liability parties joined after the had issue on the merits, referring damages while the matter of to a master. Reliance misplaced, on Smith repeat, this case is therefore for, the District properly Court did not decide—and could not appellees’ have decided—the merits of constitutional claims grant preliminary injunction. when it refused to analogy The Court also seeks comfort to the rule that pending a federal court need not abstain, state-court review, reviewing challenge from validity a constitutional to the of a fairly subject interpretation state statute that is not to an question. that will avoid the constitutional Zwickler v. Koota, 389 U. S. 241, 251, and n. 14 When a federal district court declines to abstain, however, it does not so doing question decide the merits of the constitutional if even parties opportunity have not had a full to air them. The simply proceeds court to decide the case in accordance with procedural requirements safeguard the normal par- rights ties’ to be A heard. refusal to abstain therefore in- fringes principle judgment neither the that final should follow opportunity a full legal to be heard on the factual and merits principle “parties case, nor the shall come to issue authority in the trial ques- forum vested with to determine tions of fact.” Hormel, S.,U. at 556. The same cannot Appeals be said of what the Court of did here. exceptions justify

Whatever the which would a district finallyresolving court in prelimi- an issue on the merits at the nary injunction stage, exception applicable no such was here. appeals Nor is justified this a case in which the court of was resolving passed an issue not on in the district court be- proper beyond any grave cause injus- resolution was doubt or might tice Singleton result from failure to do so. See Appeals Wulff, 428 U. at S., 121. The Court of de- by ruling cided to stand in the shoes of the District Court on passed upon an issue not below—it ruled on an issue on extraordinary which, absent circumstances, the District “ unambiguous Court could not have ruled without ‘clear and “ ” parties opportunity ‘afford the a full notice’ that would present supra, respective at 895. Camenisch, their cases.’” attempts impropriety decision The of its to veil procedural despite posture affirm the merits this challenged provisions patently by implying that are case unsupported this claim too unconstitutional. But concerning regulation state of abortion. Court’s decisions today discretionary exception the Court fashions will prove Parties now face the also vexatious to administer. ruling against the merits will entered risk that a final on be appeal appeals an taken from them a court of when the preliminary injunction, grant of a for a al- or denial motion though the district court made initial assessment of moving party on the that the would succeed the likelihood predictable parties respond It is that will at- merits. preliminary injunction tempting proceedings turn into con- to summary judgment or on the tests over full-scale trials mer- tendency injunction preliminary the its. That will make less serving preserving its intended function sta- useful making quo pending judgment final on the while merits, tus litigation expensive, If reliable, fair. more less and less may regulation of abortion, case did not involve state adopt, entertain, that the Court would let alone such doubted precedents. departure from its II appellants argue judgment that Court,

In this Appeals vacated and the District Court of should be Court’s Appellants preliminary injunction denial of a sustained. they present that “intend to to the District Court have stated dispo- complete factual record which . . . could affect the specific indicated case,” sition of this and have some of they propositions Brief would seek establish. for factual argument, appellants Appellants 44-48. for At oral counsel second-physician exception of that, with the reiterated requirement, way justifications by “there are additional challenged provi- facts that canwe offer” as to each Arg. sions. Tr. of Oral 13. These assertions alone would justify vacating judgment Appeals of the Court of insofar entry preliminary as that did court more than direct the of a injunction. Singleton supra, In v. Wulff, exam- ple, Appeals’ this Court reversed the Court of decision to though reach the merits of that even case, this Court had “no any, petitioner idea what if evidence, would, or could, offer “petitioner statute,” defense of this because it clear was that opportunity proffer had has no such evidence.” I would apply reasoning persuaded if here even I were not challenged provisions as to several additional factual development example, concerning facts the costs associ- —for reporting provisions, ated with the and informed consent problems Pennsylvania seeking extent of was to cor- Appellants rect—could affect the decision the merits. prove they opportu- should not have are entitled to an nity to be heard. declaratory

Since it rendered “what amounts to a final judgment constitutionality on the of the statute,” ante, at dissenting), Appeals necessarily J., 806 (White, the Court of light companion appel- in believed that Akron and its cases lees had established a sufficient likelihood of success the preliminary injunction. merits to warrant issuance ofa Penn- sylvania ruling contends that this is erroneous even under supervening decisions of this In Court. the alternative, Pennsylvania suggests constitutionality that the facial challenged provisions may of its Act Abortion be sustained on this record. agree with much of what Justice White has in written

I dissenting opinion, arguments II Part of his and the he has might provisions framed well sufficeto show at issue facially proper are I Nonetheless, constitutional. believe Appeals course to decide this case as the Court of should appellees very prejudice it, have decided lest suffer appellants. Court sees fit to inflict on me, then, For of suc- question of the “likelihood of “success” but is not one Pennsylvania asked the has not addition, In because cess.” 410 U. S. 113 Wade, Roe v. or overrule to reconsider question. (1973), I not address that do my expressed in dissent the views remain of do, however,

I compelling The State has at 459-466. Akron, S., in 462 U. poten- protecting ensuring and in maternal health in interests “throughout preg- exist these interests life, human tial nancy.” dissenting). Under J., at 461 Id., (O’Connor, scrutiny judicial fundamental-rights jurisprudence, Court’s regulation should be limited to whether of abortion state purposes relationship legitimate a rational state law bears compelling with interests, of these such as the advancement scrutiny heightened in for instances which State reserved imposed on the abortion decision. an “undue burden” has dissenting). An undue bur- J., 461-463 Id., at (O’Connor, involving generally “in absolute found situations will den decision,” not limitations on the abortion or severe obstacles “may regulation to some ‘inhibit’abortions a state wherever dissenting). degree.” if a J., And Id., at 464 (O’Connor, to an ex- the abortion decision does interfere with state law unduly that it becomes “neces- burdensome, so tent that is exacting sary apply id., at 467 review,” standard of possibility dissenting), remains that J., (O’Connor, scrutiny. id., at the stricter See will withstand statute dissenting); S., 462 U. J., Ashcroft, 473-474 (O’Connor, part concurring judgment in and dis- J., (O’Connor, senting part). evaluating regulation principles state of abortion

These dissenting opinion newly my Akron. minted were not Apart framework, the “un- trimester from Roe’s outmoded applied duly articulated and standard had been burdensome” consistency as Harris v. this Court cases such fair with (1980), Roe, Maher v. 432 U. S. 297, 314 McRae, 448 U. S. (1977), (1977), 446 438, Beal 432 U. S. Doe, 473 (1976). In Akron and Baird, 428 U. S. Bellotti v. Court, in my view, distorted and misapplied Ashcroft standard, Akron, see S., U. at 452-453 (O’Connor, J., dissenting), but made no clean break with in- precedent and deed this approach” “follow[ed] some of the assessing regu- lations before it Id., those cases. at J., 463 (O’Connor, dissenting). today Court well goes beyond mere distortion of the

“unduly burdensome” standard. By each of the holding provisions challenged facially unconstitutional aas matter law, no conceivable facts appellants might offer could alter this result, as its appears adopt new se rule under per test a which any regulation touching abortion must be invalidated if it “an poses dan- unacceptable that right.” Ante, at 767. ger deterring exercise Under this prophylactic test, seems that the mere possi- that some will bility women be less likely to choose to have an abortion virtue of the presence of a particular state suffices regulation to invalidate it. Simultaneously, Court strains to discover “the anti-abortion character statute,” ante, 764, and, at as Justice out, points White invents canon unprecedented of construction under which “in cases involving abortion, a permissible of a reading stat- Ante, ute is to avoided at all costs.” (dissenting). I shall not belabor the dangerous of this extravagance dual because I approach, hope it represents merely a temporary aberration rather than a portent of lasting change settled of constitutional principles law. Suffice it to that I say dis- wisdom but pute legitimacy also Court’s to discredit and attempt state abortion pre-empt regulation regardless of interests it serves and the impact it has.

Under the “unduly test, burdensome” the District Judge’s conclusion that were appellees not entitled to a preliminary injunction was clearly Indeed, correct. the District Judge applied essentially test, after suggesting that no “mean- ingful can distinction be made between the plaintiffs’ ‘legally significant and defendants’ ‘undue burden.’” burden’ Supp., begin, Court, I as the with the Act’s 796. does F. at provisions. informed consent specific features of informed

The condemns some § provisions condemna- 3205, and issues blanket consent entirety provisions dis- in their as irrelevant or tion tressing intruding relationship and -as on the in some cases physician. her woman and between Justice White general convincingly argues that none of the Court’s criti- clearly appropriate, the information is relevant is since cisms many inform than intimi- and is calculated to rather cases requirements from must, all informed consent date, since very existence, for their intrude to some extent rationale judge physician’s what discretion to be sole on “parade patient to of horribles” or her needs know. his missing swpra, Akron, is at the Court invalidated 3205(a)(iii) § example, requires that the woman be For here. medically informed, accurate,” the risks associated “when §3205(a)(v) procedure, particular re- abortion with “[t]he physician quires to inform the woman of medical carrying to with her child term.” This is the risks associated thought I information have all could kind of balanced would agree a woman’s informed consent. relevant requiring physician possibility not that

I do dismiss printed if the to read aloud State’s materials or counselor to them but cannot read raises First wishes access woman requirement Even the Amendment concerns. women availability informed of the of those materi- can read be who request, may them some als, and furnished with create physician being required possibility that the or counselor is supra, ideology.” [the State’s] Akron, “communicate Wooley dissenting); Maynard, see J., n. 16 (O’Connor, Appeals the Court did not 430 U. S. 705 Since appellees’ appellees claim, First Amendment and since reach potential I not this here, need decide whether do raise sufficiently problem of a would be serious warrant issuance preliminary injunction §3205 portions as to those incorporate printed §3208. provisions information many points I note, however, one of on which development, including fuller factual the actual contents of printed materials, could affect resolution of the merits. singles specific required out criticism the de- scription, printed in the materials, of fetal characteristics at 2-week materials, intervals. These will course, be shown only inspect to the woman if she chooses to them. If the ma- sufficiently inflammatory terials were and inaccurate the fact necessarily that the woman must ask them to see would not preclude finding an burden, undue but there is no indication description that true of the of fetal characteristics the contemplates. Accordingly, unlikely statute I think it that appellees making showing could succeed the threshold point, an undue burden on this and the information is cer- tainly rationally ensuring related to the State’s interests protecting potential informed consent and in human life. Similarly, appellees I see little chance that can establish that unduly §by require- the abortion decision is burdened 3205’s availability ments that the woman be informed the of medi- legal responsibility. cal assistance benefits and of the father’s again, indisputably many Here the information is relevant in appear place cases and would not to a severe limitation on abortion decision. striking reporting

The Court’s rationale for down the re- § quirements as shows, rests on an Justice White unsupported finding of fact this Court to the effect that purpose “[^Identificationis the obvious of these extreme re- Court). porting requirements.” (opinion Ante, at 767 of the “finding,” contrary preliminary The Court’s which is to the finding Judge confidentiality of the District that the statute’s requirements any protected against privacy invasion of Supp., could burden decision, the abortion see 552 F. simply consequence another of the Court’s determination prevent parties developing

to from the facts. I do not “the is correct stating know whether Justice White no threat to the woman’s privacy,” little or provisions pose ante, I leave that determina- and would (dissenting), at 807 can hear evidence on this Court, which tion for the District however, see a not, I do findings. its before point making statute, of the face of identification substantial threat identity the woman’s disclosure of which does not require shall be disclosed anyone, reports and which provides not lead to the disclosure in “a which will form public 3214(e)(2). I § filing report.” identity any person correctly District ruled Judge conclude that therefore establishing unlikely are succeed that appellees from the stemming on the abortion decision undue burden of identification. possibility has with the Court mis- fully agree

I White Justice §3210(b)’s meaning intended requirement construed the the abortion method that is most that physicians employ unless, physician’s the fetus good-faith to save likely present greater that method “would significantly judgment, or health of the woman.” Since pregnant risk to life 3210(b) read to that the risk be fairly require “only § can one,” ante, J., and at dis- a real identifiable (White, is little that woman’s abortion possibility there senting), burdened risks unduly by falling will be below decision 3210(b) § preliminar- should not be Accordingly, threshold. I no as at which opinion point ily enjoined, express the health of the a “trade-off” between woman and sur- to the level of an undue vival of the fetus would rise burden. that no further fact- appellees agree Since appellants 3210(c)’s §to challenge concerning appellees’ needed finding I am to assume that willing second-physician requirement, I are before us. have challenge properly the merits of to Justice White’s demonstration that this add nothing constitutional under because Act provision Ashcroft exception for an this effectively making require- provides I emergency agree ment situations. likewise inapplicable injunction preliminary entered that the with Justice White parental against the Act’s notice and consent enforcement of provisions there vacated, since, Ashcroft, as should be provide that the will not reason here to believe State is no expedited procedures called for its statute. See for the J.). (opinion S., 491, at n. 16 Ashcroft, U. Powell, explanation for its refusal to fol- I add that the Court’s the new rules “should be considered low Ashcroft—that at n. 9— instance,” ante, the District Court in the first resolving square the rest of does not with its insistence opportunity giving the District Court an this case without do so. my today’s makes bad constitutional law view, In decision “ procedural law. ‘undesired uncomfortable

and bad straitjacket’” in is not the one the case, ante, Pennsylvania’s purports statute; it is the Court to discover respectfully I has tailored for the 50 States. one dissent.

Case Details

Case Name: Thornburgh v. American College of Obstetricians and Gynecologists

Court Name: Supreme Court of the United States

Date Published: Jun 11, 1986

Citation: 476 U.S. 747

Docket Number: 84-495

Court Abbreviation: SCOTUS