The Supreme Court/The Supreme Court.iso/pc/ascii/1991/91_744/91_744.zx2

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SUPREME COURT OF THE UNITED STATES
                  --------
           Nos. 91-744 and 91-902
                  --------
     PLANNED PARENTHOOD OF SOUTHEASTERN
      PENNSYLVANIA, et al., PETITIONERS
91-744               v.
        ROBERT P. CASEY, et al., etc.

       ROBERT P. CASEY, et al., etc.,
                 PETITIONERS
91-902               v.
     PLANNED PARENTHOOD OF SOUTHEASTERN
             PENNSYLVANIA et al.
on writs of certiorari to the united states court of
        appeals for the third circuit
               [June 29, 1992]

  Justice Blackmun, concurring in part, concurring in the
judgment in part, and dissenting in part.
  I join parts I, II, III, V-A, V-C, and VI of the joint opinion
of Justices O'Connor, Kennedy, and Souter, ante.
  Three years ago, in Webster v. Reproductive Health Serv.,
492 U. S. 490 (1989), four Members of this Court appeared
poised to -cas[t] into darkness the hopes and visions of
every woman in this country- who had come to believe that
the Constitution guaranteed her the right to reproductive
choice.  Id., at 557 (Blackmun, J., dissenting).  See id., at
499 (opinion of Rehnquist, C.J.); id., at 532 (opinion of
Scalia, J.).  All that remained between the promise of Roe
and the darkness of the plurality was a single, flickering
flame.  Decisions since Webster gave little reason to hope
that this flame would cast much light.  See, e.g., Ohio v.
Akron Center for Reproductive Health, 497 U. S. 502, 524
(1990) (opinion of Blackmun, J.).  But now, just when so
many expected the darkness to fall, the flame has grown
bright.
  I do not underestimate the significance of today's joint
opinion.  Yet I remain steadfast in my belief that the right
to reproductive choice is entitled to the full protection
afforded by this Court before Webster.  And I fear for the
darkness as four Justices anxiously await the single vote
necessary to extinguish the light.
                      I
  Make no mistake, the joint opinion of Justices
O'Connor, Kennedy, and Souter is an act of personal
courage and constitutional principle.  In contrast to previ-
ous decisions in which Justices O'Connor and Kennedy
postponed reconsideration of Roe v. Wade, 410 U. S. 113
(1973), the authors of the joint opinion today join Justice
Stevens and me in concluding that -the essential holding
of Roe should be retained and once again reaffirmed.-  Ante,
at 3.  In brief, five Members of this Court today recognize
that -the Constitution protects a woman's right to terminate
her pregnancy in its early stages.-  Id., at 1.
  A fervent view of individual liberty and the force of stare
decisis have led the Court to this conclusion.  Ante, at 11.
Today a majority reaffirms that the Due Process Clause of
the Fourteenth Amendment establishes -a realm of personal
liberty which the government may not enter,- ante, at 5-a
realm whose outer limits cannot be determined by interpre-
tations of the Constitution that focus only on the specific
practices of States at the time the Fourteenth Amendment
was adopted.  See ante, at 6.  Included within this realm of
liberty is -`the right of the individual, married or single, to
be free from unwarranted governmental intrusion into
matters so fundamentally affecting a person as the decision
whether to bear or beget a child.'-  Ante, at 9, quoting
Eisenstadt v. Baird, 405 U. S. 438, 453 (1972) (emphasis in
original).  -These matters, involving the most intimate and
personal choices a person may make in a lifetime, choices
central to personal dignity and autonomy, are central to the
liberty protected by the Fourteenth Amendment.-  Ante, at
9 (emphasis added).  Finally, the Court today recognizes
that in the case of abortion, -the liberty of the woman is at
stake in a sense unique to the human condition and so
unique to the law.  The mother who carries a child to full
term is subject to anxieties, to physical constraints, to pain
that only she must bear.-  Ante, at 10.
  The Court's reaffirmation of Roe's central holding is also
based on the force of stare decisis.  -[N]o erosion of principle
going to liberty or personal autonomy has left Roe's central
holding a doctrinal remnant; Roe portends no developments
at odds with other precedent for the analysis of personal
liberty; and no changes of fact have rendered viability more
or less appropriate as the point at which the balance of
interests tips.-  Ante, at 18.  Indeed, the Court acknowl-
edges that Roe's limitation on state power could not be
removed -without serious inequity to those who have relied
upon it or significant damage to the stability of the society
governed by the rule in question.-  Ante, at 13.  In the 19
years since Roe was decided, that case has shaped more
than reproductive planning--an entire generation has
come of age free to assume Roe's concept of liberty in
defining the capacity of women to act in society and to
make reproductive decisions.-  Ante, at 18.  The Court
understands that, having -call[ed] the contending sides . . .
to end their national division by accepting a common
mandate rooted in the Constitution,- ante, at 24, a decision
to overrule Roe -would seriously weaken the Court's
capacity to exercise the judicial power and to function as
the Supreme Court of a Nation dedicated to the rule of
law.-  Ante, at 22.  What has happened today should serve
as a model for future Justices and a warning to all who
have tried to turn this Court into yet another political
branch.
  In striking down the Pennsylvania statute's spousal
notification requirement, the Court has established a
framework for evaluating abortion regulations that re-
sponds to the social context of women facing issues of
reproductive choice.  In determining the burden imposed
by the challenged regulation, the Court inquires whether
the regulation's -purpose or effect is to place a substantial
obstacle in the path of a woman seeking an abortion before
the fetus attains viability.-  Ante, at 35 (emphasis added).
The Court reaffirms: -The proper focus of constitutional
inquiry is the group for whom the law is a restriction, not
the group for whom the law is irrelevant.-  Ante, at 53-54.
Looking at this group, the Court inquires, based on expert
testimony, empirical studies, and common sense, whether
-in a large fraction of the cases in which [the restriction] is
relevant, it will operate as a substantial obstacle to a
woman's choice to undergo an abortion.-  Id., at 54.  -A
statute with this purpose is invalid because the means
chosen by the State to further the interest in potential life
must be calculated to inform the woman's free choice, not
hinder it.-  Ante, at 35.  And in applying its test, the Court
remains sensitive to the unique role of women in the
decision-making process.  Whatever may have been the
practice when the Fourteenth Amendment was adopted, the
Court observes, -[w]omen do not lose their constitutionally
protected liberty when they marry.  The Constitution
protects all individuals, male or female, married or unmar-
ried, from the abuse of governmental power, even where
that power is employed for the supposed benefit of a
member of the individual's family.-  Ante, at 57-58.
  Lastly, while I believe that the joint opinion errs in
failing to invalidate the other regulations, I am pleased that
the joint opinion has not ruled out the possibility that these
regulations may be shown to impose an unconstitutional
burden.  The joint opinion makes clear that its specific
holdings are based on the insufficiency of the record before
it.  See, e.g., id., at 43.  I am confident that in the future
evidence will be produced to show that -in a large fraction
of the cases in which [these regulations are] relevant, [they]
will operate as a substantial obstacle to a woman's choice
to undergo an abortion.-  Ante, at 54.
                     II
  Today, no less than yesterday, the Constitution and
decisions of this Court require that a State's abortion
restrictions be subjected to the strictest of judicial scrutiny.
Our precedents and the joint opinion's principles require us
to subject all non-de minimis abortion regulations to strict
scrutiny.  Under this standard, the Pennsylvania statute's
provisions requiring content-based counseling, a 24-hour
delay, informed parental consent, and reporting of abortion-
related information must be invalidated.
                      A
  The Court today reaffirms the long recognized rights of
privacy and bodily integrity.  As early as 1891, the Court
held, -[n]o right is held more sacred, or is more carefully
guarded by the commonlaw, than the right of every individ-
ual to the possession and control of his own person, free
from all restraint or interference of others . . . .-  Union
Pacific R. Co. v. Botsford, 141 U. S. 250, 251 (1891).
Throughout this century, this Court also has held that the
fundamental right of privacy protects citizens against
governmental intrusion in such intimate family matters as
procreation, childrearing, marriage, and contraceptive
choice.  See ante, at 5-6.  These cases embody the principle
that personal decisions that profoundly affect bodily
integrity, identity, and destiny should be largely beyond the
reach of government.  Eisenstadt, 405 U.S., at 453.  In Roe
v. Wade, this Court correctly applied these principles to a
woman's right to choose abortion.
  State restrictions on abortion violate a woman's right of
privacy in two ways.  First, compelled continuation of a
pregnancy infringes upon a woman's right to bodily integ-
rity by imposing substantial physical intrusions and signifi-
cant risks of physical harm.  During pregnancy, women
experience dramatic physical changes and a wide range of
health consequences.  Labor and delivery pose additional
health risks and physical demands.  In short, restrictive
abortion laws force women to endure physical invasions far
more substantial than those this Court has held to violate
the constitutional principle of bodily integrity in other
contexts.  See, e.g., Winston v. Lee, 470 U.S. 753 (1985)
(invalidating surgical removal of bullet from murder
suspect); Rochin v. California, 342 U.S. 165 (1952) (invali-
dating stomach-pumping).
  Further, when the State restricts a woman's right to
terminate her pregnancy, it deprives a woman of the right
to make her own decision about reproduction and family
planning-critical life choices that this Court long has
deemed central to the right to privacy.  The decision to
terminate or continue a pregnancy has no less an impact on
a woman's life than decisions about contraception or
marriage.  410 U.S., at 153.  Because motherhood has a
dramatic impact on a woman's educational prospects,
employment opportunities, and self-determination, restric-
tive abortion laws deprive her of basic control over her life.
For these reasons, -the decision whether or not to beget or
bear a child- lies at -the very heart of this cluster of
constitutionally protected choices.-  Carey v. Population
Services, Int'l, 431 U.S. 678 (1977).
  A State's restrictions on a woman's right to terminate her
pregnancy also implicate constitutional guarantees of
gender equality.  State restrictions on abortion compel
women to continue pregnancies they otherwise might
terminate.  By restricting the right to terminate pregnan-
cies, the State conscripts women's bodies into its service,
forcing women to continue their pregnancies, suffer the
pains of childbirth, and in most instances, provide years of
maternal care.  The State does not compensate women for
their services; instead, it assumes that they owe this duty
as a matter of course.  This assumption-that women can
simply be forced to accept the -natural- status and incidents
of motherhood-appears to rest upon a conception of
women's role that has triggered the protection of the Equal
Protection Clause.  See, e.g., Mississippi Univ. for Women
v. Hogan, 458 U. S. 718, 724-726 (1982); Craig v. Boren,
429 U. S. 190, 198-199 (1976).  The joint opinion recog-
nizes that these assumptions about women's place in society
-are no longer consistent with our understanding of the
family, the individual, or the Constitution.-  Ante, at 55.
                      B
  The Court has held that limitations on the right of
privacy are permissible only if they survive -strict- constitu-
tional scrutiny-that is, only if the governmental entity
imposing the restriction can demonstrate that the limitation
is both necessary and narrowly tailored to serve a compel-
ling governmental interest.  Griswold v. Connecticut, 381
U.S. 479, 485 (1965).  We have applied this principle
specifically in the context of abortion regulations.  Roe v.
Wade, 410 U. S., at 155.
  Roe implemented these principles through a framework
that was designed -to insure that the woman's right to
choose not become so subordinate to the State's interest in
promoting fetal life that her choice exists in theory but not
in fact,- ante, at 30.  Roe identified two relevant State
interests: -an interest in preserving and protecting the
health of the pregnant woman- and an interest in -protect-
ing the potentiality of human life.-  410 U. S., at 162.  With
respect to the State's interest in the health of the mother,
-the `compelling' point . . . is at approximately the end of
the first trimester,- because it is at that point that the
mortality rate in abortion approaches that in childbirth.
Roe, 410 U. S., at 163.  With respect to the State's interest
in potential life, -the `compelling' point is at viability,-
because it is at that point that the fetus -presumably has
the capability of meaningful life outside the mother's
womb.-  Ibid.  In order to fulfill the requirement of narrow
tailoring, -the State is obligated to make a reasonable effort
to limit the effect of its regulations to the period in the
trimester during which its health interest will be fur-
thered.-  Akron, 462 U. S., at 434.
  In my view, application of this analytical framework is no
less warranted than when it was approved by seven
Members of this Court in Roe.  Strict scrutiny of state
limitations on reproductive choice still offers the most
secure protection of the woman's right to make her own
reproductive decisions, free from state coercion.  No
majority of this Court has ever agreed upon an alternative
approach.  The factual premises of the trimester framework
have not been undermined, see Webster, 492 U.S., at 553
(Blackmun, J., dissenting), and the Roe framework is far
more administrable, and far less manipulable, than the
-undue burden- standard adopted by the joint opinion.
  Nonetheless, three criticisms of the trimester framework
continue to be uttered.  First, the trimester framework is
attacked because its key elements do not appear in the text
of the Constitution.  My response to this attack remains the
same as it was in Webster:
-Were this a true concern, we would have to abandon
most of our constitutional jurisprudence.  [T]he `critical
elements' of countless constitutional doctrines nowhere
appear in the Constitution's text . . . .  The Constitu-
tion makes no mention, for example, of the First
Amendment's `actual malice' standard for proving
certain libels, see New York Times Co. v. Sullivan, 376
U.S. 254 (1964). . . .  Similarly, the Constitution makes
no mention of the rational-basis test, or the specific
verbal formulations of intermediate and strict scrutiny
by which this Court evaluates claims under the Equal
Protection Clause.  The reason is simple.  Like the Roe
framework, these tests or standards are not, and do not
purport to be, rights protected by the Constitution.
Rather, they are judge-made methods for evaluating
and measuring the strength and scope of constitutional
rights or for balancing the constitutional rights of
individuals against the competing interests of
government.-  492 U.S., at 548.

  The second criticism is that the framework more closely
resembles a regulatory code than a body of constitutional
doctrine.  Again, my answer remains the same as in
Webster.
-[I]f this were a true and genuine concern, we would
have to abandon vast areas of our constitutional juris-
prudence. . . .  Are [the distinctions entailed in the
trimester framework] any finer, or more `regulatory,'
than the distinctions we have often drawn in our First
Amendment jurisprudence, where, for example, we
have held that a `release time' program permitting
public-school students to leave school grounds during
school hours receive religious instruction does not
violate the Establishment Clause, even though a
release-time program permitting religious instruction
on school grounds does violate the Clause?  Compare
Zorach v. Clauson, 343 U.S. 306 (1952), with Illinois ex
rel. McCollum v. Board of Education of School Dist. No.
71, Champaign County, 333 U.S. 203 (1948). . . .
Similarly, in a Sixth Amendment case, the Court held
that although an overnight ban on attorney-client
communication violated the constitutionally guaranteed
right to counsel, Geders v. United States, 425 U.S. 80
(1976), that right was not violated when a trial judge
separated a defendant from his lawyer during a
15-minute recess after the defendant's direct testi-
mony.  Perry v. Leake, 488 U.S. 272 (1989).  That
numerous constitutional doctrines result in narrow
differentiations between similar circumstances does not
mean that this Court has abandoned adjudication in
favor of regulation.-  Id., at 549-550.

  The final, and more genuine, criticism of the trimester
framework is that it fails to find the State's interest in
potential human life compelling throughout pregnancy.  No
member of this Court-nor for that matter, the Solicitor
General, Tr. of Oral Arg. 42-has ever questioned our
holding in Roe that an abortion is not -the termination of
life entitled to Fourteenth Amendment protection.-  410
U.S., at 159.  Accordingly, a State's interest in protecting
fetal life is not grounded in the Constitution.  Nor, consis-
tent with our Establishment Clause, can it be a theological
or sectarian interest.  See Thornburgh, 476 U.S., at 778
(Stevens, J., concurring).  It is, instead, a legitimate
interest grounded in humanitarian or pragmatic concerns.
See ante, at 4-5 (opinion of Stevens, J.).
  But while a State has -legitimate interests from the
outset of the pregnancy in protecting the health of the
woman and the life of the fetus that may become a child,-
ante, at 4, legitimate interests are not enough.  To overcome
the burden of strict scrutiny, the interests must be compel-
ling.  The question then is how best to accommodate the
State's interest in potential human life with the constitu-
tional liberties of pregnant women.  Again, I stand by the
views I expressed in Webster:
-I remain convinced, as six other Members of this
Court 16 years ago were convinced, that the Roe
framework, and the viability standard in particular,
fairly, sensibly, and effectively functions to safeguard
the constitutional liberties of pregnant women while
recognizing and accommodating the State's interest in
potential human life.  The viability line reflects the
biological facts and truths of fetal development; it
marks that threshold moment prior to which a fetus
cannot survive separate from the woman and cannot
reasonably and objectively be regarded as a subject of
rights or interests distinct from, or paramount to, those
of the pregnant woman.  At the same time, the viability
standard takes account of the undeniable fact that as
the fetus evolves into its postnatal form, and as it loses
its dependence on the uterine environment, the State's
interest in the fetus' potential human life, and in
fostering a regard for human life in general, becomes
compelling.  As a practical matter, because viability
follows `quickening'-the point at which a woman feels
movement in her womb-and because viability occurs
no earlier than 23 weeks gestational age, it establishes
an easily applicable standard for regulating abortion
while providing a pregnant woman ample time to
exercise her fundamental right with her responsible
physician to terminate her pregnancy.-  492 U.S., at
553-554.

  Roe's trimester framework does not ignore the State's
interest in prenatal life.  Like Justice Stevens, I agree
that the State may take steps to ensure that a woman's
choice -is thoughtful and informed,- ante, at 29, and that
-States are free to enact laws to provide a reasonable
framework for a woman to make a decision that has such
profound and lasting meaning.-  Ante, at 30.  But
-[s]erious questions arise when a State attempts to
`persuade the woman to choose childbirth over abor-
tion.'  Ante, at 36.  Decisional autonomy must limit the
State's power to inject into a woman's most personal
deliberations its own views of what is best.  The State
may promote its preferences by funding childbirth, by
creating and maintaining alternatives to abortion, and
by espousing the virtues of family, but it must respect
the individual's freedom to make such judgments.-
Ante, at 6 (opinion of Stevens, J.).
As the joint opinion recognizes, -the means chosen by the
State to further the interest in potential life must be
calculated to inform the woman's free choice, not hinder it.-
Ante, at 35.
  In sum, Roe's requirement of strict scrutiny as imple-
mented through a trimester framework should not be
disturbed.  No other approach has gained a majority, and
no other is more protective of the woman's fundamental
right.  Lastly, no other approach properly accommodates the
woman's constitutional right with the State's legitimate
interests.
                      C
  Application of the strict scrutiny standard results in the
invalidation of all the challenged provisions.  Indeed, as this
Court has invalidated virtually identical provisions in prior
cases, stare decisis requires that we again strike them
down.
  This Court has upheld informed and written consent
requirements only where the State has demonstrated that
they genuinely further important health-related state
concerns.  See Danforth, 428 U. S., at 65-67.  A State may
not, under the guise of securing informed consent, -require
the delivery of information `designed to influence the
woman's informed choice between abortion or childbirth.'-
Thornburgh v. American College of Obstetricians & Gynecol-
ogists, 476 U. S. 747, 760 (1986), (quoting Akron, 462 U. S.,
at 443-444).  Rigid requirements that a specific body of
information be imparted to a woman in all cases, regardless
of the needs of the patient, improperly intrude upon the
discretion of the pregnant woman's physician and thereby
impose an -`undesired and uncomfortable straitjacket.'-
Thornburgh, 476 U. S., at 762 (quoting Danforth, 428 U. S.,
at 67, n. 8).
  Measured against these principles, some aspects of the
Pennsylvania informed-consent scheme are unconstitu-

tional.  While it is unobjectionable for the Commonwealth
to require that the patient be informed of the nature of the
procedure, the health risks of the abortion and of childbirth,
and the probable gestational age of the unborn child,
compare 3205(a)(i)-(iii) with Akron, 462 U. S., at 446, n.
37, I remain unconvinced that there is a vital state need for
insisting that the information be provided by a physician
rather than a counselor.  Id., at 448.  The District Court
found that the physician-only requirement necessarily
would increase costs to the plaintiff-clinics, costs that
undoubtedly would be passed on to patients.  And because
trained women counselors are often more understanding
than physicians, and generally have more time to spend
with patients, see App. 366a-387a, the physician-only
disclosure requirement is not narrowly tailored to serve the
Commonwealth's interest in protecting maternal health.
  Sections 3205(a)(2)(i)-(iii) of the Act further requires that
the physician or a qualified non-physician inform the
woman that printed materials are available from the
Commonwealth that describe the fetus and provide informa-
tion about medical assistance for childbirth, information
about child support from the father, and a list of agencies
offering that provide adoption and other services as
alternatives to abortion.  Thornburgh invalidated biased
patient-counseling requirements virtually identical to the
one at issue here.  What we said of those requirements fully
applies in this case:
-the listing of agencies in the printed Pennsylvania
form presents serious problems; it contains names of
agencies that well may be out of step with the needs of
the particular woman and thus places the physician in
an awkward position and infringes upon his or her
professional responsibilities.  Forcing the physician or
counselor to present the materials and the list to the
woman makes him or her in effect an agent of the
State in treating the woman and places his or her
imprimatur upon both the materials and the list.  All
this is, or comes close to being, state medicine imposed
upon the woman, not the professional medical guidance
she seeks, and it officially structures-as it obviously
was intended to do-the dialogue between the woman
and her physician.
     -The requirements . . . that the woman be advised
that medical assistance benefits may be available, and
that the father is responsible for financial assistance in
the support of the child similarly are poorly disguised
elements of discouragement for the abortion decision.
Much of this . . ., for many patients, would be irrele-
vant and inappropriate.  For a patient with a life-
threatening pregnancy, the `information' in its very
rendition may be cruel as well as destructive of the
physician-patient relationship.  As any experienced
social worker or other counselor knows, theoretical
financial responsibility often does not equate with
fulfillment . . . .  Under the guise of informed consent,
the Act requires the dissemination of information that
is not relevant to such consent, and, thus, it advances
no legitimate state interest.-  476 U. S., at 763.

  -This type of compelled information is the antithesis of
informed consent,- id., at 764, and goes far beyond merely
describing the general subject matter relevant to the
woman's decision.  -That the Commonwealth does not, and
surely would not, compel similar disclosure of every possible
peril of necessary surgery or of simple vaccination, reveals
the anti-abortion character of the statute and its real
purpose.-  Ibid.
  The 24-hour waiting period following the provision of the
foregoing information is also clearly unconstitutional.  The
District Court found that the mandatory 24-hour delay
could lead to delays in excess of 24 hours, thus increasing
health risks, and that it would require two visits to the
abortion provider, thereby increasing travel time, exposure
to further harassment, and financial cost.  Finally, the
District Court found that the requirement would pose
especially significant burdens on women living in rural
areas and those women that have difficulty explaining their
whereabouts.  App. to Pet. for Cert. in No. 91-902, pp.
380a-382a (hereinafter App.).  In Akron this Court invali-
dated a similarly arbitrary or inflexible waiting period
because, as here, it furthered no legitimate state interest.
  As Justice Stevens insightfully concludes, the manda-
tory delay rests either on outmoded or unacceptable
assumptions about the decisionmaking capacity of women
or the belief that the decision to terminate the pregnancy is
presumptively wrong.  Ante, at 8.  The requirement that
women consider this obvious and slanted information for an
additional 24 hours contained in these provisions will only
influence the woman's decision in improper ways.  The vast
majority of women will know this information-of the few
that do not, it is less likely that their minds will be changed
by this information than it will be either by the realization
that the State opposes their choice or the need once again
to endure abuse and harassment on return to the clinic.
  Except in the case of a medical emergency, 3206
requires a physician to obtain the informed consent of a
parent or guardian before performing an abortion on an
unemancipated minor or an incompetent woman.  Based on
evidence in the record, the District Court concluded that, in
order to fulfill the informed-consent requirement, generally
accepted medical principles would require an in-person visit
by the parent to the facility.  App. 399a.  Although the
Court -has recognized that the State has somewhat broader
authority to regulate the activities of children than of
adults,- the State nevertheless must demonstrate that there
is a -significant state interest in conditioning an abortion
. . . that is not present in the case of an adult.-  Danforth,
428 U. S., at 74-75 (emphasis added).  The requirement of
an in-person visit would carry with it the risk of a delay of
several days or possibly weeks, even where the parent is
willing to consent.  While the State has an interest in
encouraging parental involvement in the minor's abortion
decision, 3206 is not narrowly drawn to serve that
interest.
  Finally, the Pennsylvania statute requires every facility
performing abortions to report its activities to the Common-
wealth.  Pennsylvania contends that this requirement is
valid under Danforth, in which this Court held that
recordkeeping and reporting requirements that are reason-
ably directed to the preservation of maternal health and
that properly respect a patient's confidentiality are permis-
sible.  428 U. S., at 79-81.  The Commonwealth attempts to
justify its required reports on the ground that the public
has a right to know how its tax dollars are spent.  A
regulation designed to inform the public about public
expenditures does not further the Commonwealth's interest
in protecting maternal health.  Accordingly, such a regula-
tion cannot justify a legally significant burden on a
woman's right to obtain an abortion.
  The confidential reports concerning the identities and
medical judgment of physicians involved in abortions at
first glance may seem valid, given the State's interest in
maternal health and enforcement of the Act.  The District
Court found, however, that, notwithstanding the confidenti-
ality protections, many physicians, particularly those who
have previously discontinued performing abortions because
of harassment, would refuse to refer patients to abortion
clinics if their names were to appear on these reports.  App.
447a-448a. The Commonwealth has failed to show that the
name of the referring physician either adds to the pool of
scientific knowledge concerning abortion or is reasonably
related to the Commonwealth's interest in maternal health.
I therefore agree with the District Court's conclusion that
the confidential reporting requirements are unconstitutional
insofar as they require the name of the referring physician
and the basis for his or her medical judgment.
  In sum, I would affirm the judgment in No. 91-902 and
reverse the judgment in No. 91-744 and remand the cases
for further proceedings.
                     III
  At long last, The Chief Justice admits it.  Gone are the
contentions that the issue need not be (or has not been)
considered.  There, on the first page, for all to see, is what
was expected: -We believe that Roe was wrongly decided,
and that it can and should be overruled consistently with
our traditional approach to stare decisis in constitutional
cases.-  Post, at 1.  If there is much reason to applaud the
advances made by the joint opinion today, there is far more
to fear from The Chief Justice's opinion.
  The Chief Justice's criticism of Roe follows from his
stunted conception of individual liberty.  While recognizing
that the Due Process Clause protects more than simple
physical liberty, he then goes on to construe this Court's
personal-liberty cases as establishing only a laundry list of
particular rights, rather than a principled account of how
these particular rights are grounded in a more general right
of privacy.  Post, at 9.  This constricted view is reinforced by
The Chief Justice's exclusive reliance on tradition as a
source of fundamental rights.  He argues that the record in
favor of a right to abortion is no stronger than the record in
Michael H. v. Gerald D., 491 U. S. 110 (1989), where the
plurality found no fundamental right to visitation privileges
by an adulterous father, or in Bowers v. Hardwick, 478
U. S. 186 (1986), where the Court found no fundamental
right to engage in homosexual sodomy, or in a case involv-
ing the -firing of a gun . . . into another person's body.-
Post, at 9-10.  In The Chief Justice's world, a woman
considering whether to terminate a pregnancy is entitled to
no more protection than adulterers, murderers, and so-
called -sexual deviates.-  Given The Chief Justice's
exclusive reliance on tradition, people using contraceptives
seem the next likely candidate for his list of outcasts.
  Even more shocking than The Chief Justice's cramped
notion of individual liberty is his complete omission of any
discussion of the effects that compelled childbirth and
motherhood have on women's lives.  The only expression of
concern with women's health is purely instrumental-for
The Chief Justice, only women's psychological health is a
concern, and only to the extent that he assumes that every
woman who decides to have an abortion does so without
serious consideration of the moral implications of their
decision.  Post, at 25-26.  In short, The Chief Justice's
view of the State's compelling interest in maternal health
has less to do with health than it does with compelling
women to be maternal.
  Nor does The Chief Justice give any serious consider-
ation to the doctrine of stare decisis.  For The Chief
Justice, the facts that gave rise to Roe are surprisingly
simple: -women become pregnant, there is a point some-
where, depending on medical technology, where a fetus
becomes viable, and women give birth to children.-  Ante, at
13.  This characterization of the issue thus allows The
Chief Justice quickly to discard the joint opinion's reliance
argument by asserting that -reproductive planning could
take . . . virtually immediate account of a decision overrul-
ing Roe.-  Id., at 14 (internal quotations omitted).
  The Chief Justice's narrow conception of individual
liberty and stare decisis leads him to propose the same
standard of review proposed by the plurality in Webster.
-States may regulate abortion procedures in ways rationally
related to a legitimate state interest.  Williamson v. Lee
Optical Co., 348 U. S. 483, 491 (1955); cf. Stanley v. Illinois,
405 U. S. 645, 651-653 (1972).-  Post, at 24.  The Chief
Justice then further weakens the test by providing an
insurmountable requirement for facial challenges:  petition-
ers must -`show that no set of circumstances exists under
which the [provision] would be valid.'-  Post, at 30, quoting
Ohio v. Akron Center for Reproductive Health, 497 U. S., at
514.  In short, in his view, petitioners must prove that the
statute cannot constitutionally be applied to anyone.
Finally, in applying his standard to the spousal-notification
provision, The Chief Justice contends that the record
lacks any -hard evidence- to support the joint opinion's
contention that a -large fraction- of women who prefer not
to notify their husbands involve situations of battered
women and unreported spousal assault.  Post, at 31, n. 2.
Yet throughout the explication of his standard, The Chief
Justice never explains what hard evidence is, how large a
fraction is required, or how a battered women is supposed
to pursue an as-applied challenge.
  Under his standard, States can ban abortion if that ban
is rationally related to a legitimate state interest-a
standard which the United States calls -deferential, but not
toothless.-  Yet when pressed at oral argument to describe
the teeth, the best protection that the Solicitor General
could offer to women was that a prohibition, enforced by
criminal penalties, with no exception for the life of the
mother, -could raise very serious questions.-  Tr. of Oral
Arg. 49.  Perhaps, the Solicitor General offered, the failure
to include an exemption for the life of the mother would be
-arbitrary and capricious.-  Id., at 49.  If, as The Chief
Justice contends, the undue burden test is made out of
whole cloth, the so-called -arbitrary and capricious- limit is
the Solicitor General's -new clothes.-
  Even if it is somehow -irrational- for a State to require a
woman to risk her life for her child, what protection is
offered for women who become pregnant through rape or
incest?  Is there anything arbitrary or capricious about a
State's prohibiting the sins of the father from being visited
upon his offspring?
  But, we are reassured, there is always the protection of
the democratic process.  While there is much to be praised
about our democracy, our country since its founding has
recognized that there are certain fundamental liberties that
are not to be left to the whims of an election.  A woman's
right to reproductive choice is one of those fundamental
liberties.  Accordingly, that liberty need not seek refuge at
the ballot box.
                     IV
  In one sense, the Court's approach is worlds apart from
that of The Chief Justice and Justice Scalia.  And yet,
in another sense, the distance between the two approaches
is short-the distance is but a single vote.
  I am 83 years old.  I cannot remain on this Court forever,
and when I do step down, the confirmation process for my
successor well may focus on the issue before us today.
That, I regret, may be exactly where the choice between the
two worlds will be made.