Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/ussct/abort2.asc

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 So in this case we may inquire whether Roe's central rule
has been found unworkable; whether the rule's limitation on state
power could be removed without serious inequity to those who have
relied upon it or significant damage to the stability of the
society governed by the rule in question; whether the law's
growth in the inter vening years has left Roe's central rule a
doctrinal anachronism discounted by society; and whether Roe's
premises of fact have so far changed in the ensuing two decades
as to render its central holding somehow irrelevant or
unjustifiable in dealing with the issue it addressed.
 1

 Although Roe has engendered opposition, it has in no
sense proven unworkable, see Garcia v. San Antonio Metropolitan
Transit Authority, 469 U. S.  528, 546 (1985), representing as it
does a simple limitation beyond which a state law is
unenforceable.  While Roe has, of course, required judicial
assessment of state laws affecting the exercise of the choice
guaranteed against government infringement, and although the need
for such review will remain as a consequence of today's decision,
the required determinations fall within judicial competence.

 2

 The inquiry into reliance counts the cost of a rule's
repudiation as it would fall on those who have relied reasonably
on the rule's continued application.  Since the classic case for
weighing reliance heavily in favor of following the earlier rule
occurs in the commercial context, see Payne v. Tennessee, supra,
at ____ (slip op., at ___), where advance planning of great
precision is most obviously a necessity, it is no cause for
surprise that some would find no reliance worthy of consideration
in support of Roe.

 While neither respondents nor their amici in so many
words deny that the abortion right invites some reliance prior to
its actual exercise, one can readily imagine an argument
stressing the dissimilarity of this case to one involving
property or contract.  Abortion is customarily chosen as an
unplanned response to the consequence of unplanned activity or to
the failure of conventional birth control, and except on the
assumption that no intercourse would have occurred but for Roe's
holding, such behavior may appear to justify no reliance claim.
Even if reliance could be claimed on that unrealistic assumption,
the argument might run, any reliance interest would be de
minimis.  This argument would be premised on the hypothesis that
reproductive planning could take virtually immediate account of
any sudden restoration of state authority to ban abortions.

 To eliminate the issue of reliance that easily, however,
one would need to limit cognizable reliance to specific instances
of sexual activity.  But to do this would be simply to refuse to
face the fact that for two decades of economic and social
developments, people have organized intimate relationships and
made choices that define their views of themselves and their

places in society, in reliance on the availability of abortion in
the event that contraception should fail.  The ability of women
to participate equally in the economic and social life of the
Nation has been facilitated by their ability to control their
reproductive lives.  See, e.g., R. Petchesky, Abortion and
Woman's Choice 109, 133, n. 7 (rev. ed.  1990).  The Constitution
serves human values, and while the effect of reliance on Roe
cannot be exactly measured, neither can the certain cost of
overruling Roe for people who have ordered their thinking and
living around that case be dismissed.

 3

 No evolution of legal principle has left Roe's doctrinal
footings weaker than they were in 1973.  No development of
constitutional law since the case was decided has implicitly or
explicitly left Roe behind as a mere survivor of obsolete
constitutional thinking.

 It will be recognized, of course, that Roe stands at an
intersection of two lines of decisions, but in whichever
doctrinal category one reads the case, the result for present
purposes will be the same.  The Roe Court itself placed its
holding in the succession of cases most prominently exemplified
by Griswold v. Connecticut, 381 U. S. 479 (1965), see Roe, 410 U.
S., at 152-153.  When it is so seen, Roe is clearly in no
jeopardy, since subsequent constitutional developments have
neither disturbed, nor do they threaten to diminish, the scope of
recognized protection accorded to the liberty relating to
intimate relationships, the family, and decisions about whether
or not to beget or bear a child.  See, e.g., Carey v. Population
Services International, 431 U. S. 678 (1977); Moore v. East
Cleveland, 431 U. S. 678 (1977).

 Roe, however, may be seen not only as an exemplar of
Griswold liberty but as a rule (whether or not mistaken) of
personal autonomy and bodily integrity, with doctrinal affinity
to cases recognizing limits on governmental power to mandate
medical treatment or to bar its rejection.  If so, our cases
since Roe accord with Roe's view that a State's interest in the
protection of life falls short of justifyingany plenary override
of individual liberty claims.  Cruzan v. Director, Missouri Dept.
of Health, 497 U.S. 261,278 (1990); Cf., e.g., Riggins v. Nevada,
504 U.S.  ____, ____ (1992) (slip. op., at 7); Washington v.
Harper, 494 U. S.210 (1990); see also, e.g., Rochin v.
California, 342 U.S. 165 (1952); Jacobson v. Massachusetts, 197
U. S.  11, 24-30 (1905).

 Finally, one could classify Roe as sui generis.  If the
case is so viewed, then there clearly has been no erosion of its
central determination.  The original holding resting on the
concurrence of seven Members of the Court in 1973 was expressly
affirmed by a majority of six in 1983, see Akron v.  Akron Center
for Reproductive Health, Inc., 462 U.S. 416 (1983) (Akron I), and
by a majority of five in 1986, see Thornburgh v. American College
of Obstetricians and Gynecologists, 476 U. S. 747 (1986),
expressing adherence to the constitutional ruling despite
legislative efforts in some States to test its limits.  More
recently, in Webster v.  Reproductive Health Services, 492 U. S.
490 (1989), although two of the present authors questioned the
trimester framework in a way consistent with our judgment today,
see id., at 518 (Rehnquist C.  J., joined by White, and Kennedy,
JJ.); id., at 529 (O'Connor, J., concurring in part and
concurring in judgment), a majority of the Court either decided
to reaffirm or declined to address the constitutional validity of
the central holding of Roe.  See Webster, 492 U. S., at 521
(Rehnquist, C. J., joined by White and Kennedy, JJ.); id., at
525-526 (O'Con- nor, J., concurring in part and concurring in
judgment); id., at 537, 553 (Blackmun, J., joined by Brennan and
Marshall, JJ., concurring in part and dissenting in part); id.,
at 561-563 (Stevens, J., concurring in part and dissenting in
part).

 Nor will courts building upon Roe be likely to hand down
erroneous decisions as a consequence.  Even on the assumption
that the central holding of Roe was in error, that error would go
only to the strength of the state interest in fetal protection,
not to the recognition afforded by the Constitution to the
woman's liberty.  The latter aspect of the decision fits
comfortably within the framework of the Court's prior decisions
including Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535
(1942), Griswold, supra, Loving v. Virginia, 388 U. S.  1 (1967),
and Eisenstadt v. Baird, 405 U. S. 438 (1972), the holdings of
which are not a series of isolated points, but mark a rational
continuum.  Poe v. Ullman, 367 U. S., at 543 (1961) (Harlan, J.,
dissenting).  As we described in Carey v. Population Services
International, supra, the liberty which encompasses those
decisions includes `the interest in independence in making
certain kinds of important decisions.' While the outer limits of
this aspect of [protected liberty] have not been marked by the
Court, it is clear that among the decisions that an individual
may make without unjustified government interference are personal
decisions `relating to marriage, procreation, contraception,
family relationships, and child rearing and education.' Id., at
684-685 (citations omitted). The soundness of this prong of the
Roe analysis is apparent from a consideration of the alternative.
If indeed the woman's interest in deciding whether to bear and
beget a child had not been recognized as in Roe, the State might
as readily restrict a woman's right to choose to carry a
pregnancy to term as to terminate it, to further asserted state
interests in population control, or eugenics, for example.  Yet
Roe has been sensibly relied upon to counter any such
suggestions.  E.g., Arnold v. Board of Education of Escambia
County, Ala., 880 F. 2d 305, 311 (CA11 1989) (relying upon Roe
and concluding that government officials violate the Constitution
by coercing a minor to have an abortion); Avery v. County of
Burke, 660 F.  2d 111, 115 (CA4 1981) (county agency inducing
teenage girl to undergo unwanted sterilization on the basis of
misrepresentation that she had sickle cell trait); see also In re
Quinlan, 70 N.J. 10, 355 A. 2d 647, cert. denied sub nom. Garger
v. New Jersey, 429 U. S. 922 (1976) (relying on Roe in finding a
right to terminate medical treatment).  In any event, because
Roe's scope is confined by the fact of its concern with
postconception potential life, a concern otherwise likely to be
implicated only by some forms of contraception protected
independently under Griswold and later cases, any error in Roe is
unlikely to have serious ramifications in future cases.

/* The Court does not dwell on the fact that the states not only
used to outlaw abortion, but in many cases, they also required
forced sterilizations. Roe also can be seen to limit (or even
prohibit) state laws, active into the 1970's where those below
certain IQ's were sterilized. */


4

 We have seen how time has overtaken some of Roe's factual
assumptions: advances in maternal health care allow for abortions
safe to the mother later in pregnancy than was true in 1973, see
Akron I, supra, at 429, n. 11, and advances in neonatal care have
advanced viability to a point somewhat earlier.  Compare Roe, 410
U. S., at 160, with Webster, supra, at 515-516 (opinion of
Rehnqu- ist, C.J.); see Akron I, supra, at 457, and n. 5
(O'Connor, J., dissenting).  But these facts go only to the
scheme of time limits on the realization of competing interests,
and the divergences from the factual premises of 1973 have no
bearing on the validity of Roe's central holding, that viability
marks the earliest point at which the State's interest in fetal
life is constitutionally adequate to justify a legislative ban on
nontherapeutic abortions.  The soundness or unsoundness of that
constitutional judgment in no sense turns on whether viability
occurs at approximately 28 weeks, as was usual at the time of
Roe, at 23 to 24 weeks, as it sometimes does today, or at some
moment even slightly earlier in pregnancy, as it may if fetal
respiratory capacity can somehow be enhanced in the future.
Whenever it may occur, the attainment of viability may continue
to serve as the critical fact, just as it has done since Roe was
decided; which is to say that no change in Roe's factual
underpinning has left its central holding obsolete, and none
supports an argument for overruling it.

5

 The sum of the precedential inquiry to this point shows
Roe's underpinnings unweakened in any way affecting its central
holding.  While it has engendered disapproval, it has not been
unworkable.  An entire generation has come of age free to assume
Roe's concept of liberty in defining the capacity of women to act
in society, and to make reproductive decisions; no erosion of
principle going to liberty or personal autonomy has 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.  Within the bounds of normal stare decisis analysis, then,
and subject to the considerations on which it customarily turns,
the stronger argument is for affirming Roe's central holding,
with whatever degree of personal reluctance any of us may have,
not for overruling it.

/*  This analysis is quite similar to that of "liberty interest"
as applied to the states. A state does not have to accord certain
types of rights to its citizens; but once it does, the revocation
or limitation of the privileges must be pursuant to due process.
The Court argues here that it grant an expectation of the right
to abortions during the early part of pregnancy and thus should
not cavalierly overrule the same. */


 B

 In a less significant case, stare decisis analysis could,
and would, stop at the point we have reached.  But the sustained
and widespread debate Roe has provoked calls for some comparison
between that case and others of comparable dimension that have
responded to national controversies and taken on the impress of
the controversies addressed.  Only two such decisional lines from
the past century present themselves for examination, and in each
instance the result reached by the Court accorded with the
principles we apply today.

 The first example is that line of cases identified with
Lochner v. New York, 198 U. S. 45 (1905), which imposed
substantive limitations on legislation limiting economic autonomy
in favor of health and welfare regulation, adopting, in Justice
Holmes' view, the theory of laissez-faire.  Id., at 75 (Holmes,
J., dissenting).  The Lochner decisions were exemplified by
Adkins v. Children's Hospital of D.C., 261 U. S. 525 (1923), in
which this Court held it to be an infringement of
constitutionally protected liberty of contract to require the
employers of adult women to satisfy minimum wage standards.
Fourteen years later, West Coast Hotel Co. v. Parrish, 300 U. S.
379 (1937), signalled the demise of Lochner by overruling Adkins.
In the meantime, the Depression had come and, with it, the lesson
that seemed unmistakable to most people by 1937, that the
interpretation of contractual freedom protected in Adkins rested
on fundamentally false factual assumptions about the capacity of
a relatively unregulated market to satisfy minimal levels of
human welfare.  See West Coast Hotel Co., supra, at 399.  As
Justice Jackson wrote of the constitutional crisis of 1937
shortly before he came on the bench, The older world of laissez
faire was recognized everywhere outside the Court to be dead.  R.
Jackson, The Struggle for Judicial Supremacy 85 (1941).  The
facts upon which the earlier case had premised a constitutional
resolution of social controversy had proved to be untrue, and
history's demonstration of their untruth not only justified but
required the new choice of constitutional principle that West
Coast Hotel announced.  Of course, it was true that the Court
lost something by its misperception, or its lack of prescience,
and the Court-packing crisis only magnified the loss; but the
clear demonstration that the facts of economic life were
different from those previously assumed warranted the repudiation
of the old law.

 The second comparison that 20th century history invites
is with the cases employing the separate-but-equal rule for
applying the Fourteenth Amendment's equal protection guarantee.
They began with Plessy v. Ferguson, 163 U. S. 537 (1896), holding
that legislatively mandated racial segregation in public
transportation works no denial of equal protection, rejecting the
argument that racial separation enforced by the legal machinery
of American society treats the black race as inferior.  The
Plessy Court considered the underlying fallacy of the plaintiff's
argument to consist in the assumption that the enforced
separation of the two races stamps the colored race with a badge
of inferiority.  If this be so, it is not by reason of anything
found in the act, but solely because the colored race chooses to
put that construction upon it.  Id., at at 551.  Whether, as a
matter of historical fact, the Justices in the Plessy majority
believed this or not, see id., at 557, 562 (Harlan, J.,
dissenting), this understanding of the implication of segregation
was the stated justification for the Court's opinion.  But this
understanding of the facts and the rule it was stated to justify
were repudiated in Brown v.  Board of Education, 347 U. S. 483
(1954).  As one commentator observed, the question before the
Court in Brown was whether discrimination inheres in that
segregation which is imposed by law in the twentieth century in
certain specific states in the American Union.  And that question
has meaning and can find an answer only on the ground of history
and of common knowledge about the facts of life in the times and
places afore- said.  Black, The Lawfulness of the Segregation
Decisions, 69 Yale L. J. 421, 427 (1960).

 The Court in Brown addressed these facts of life by
observing that whatever may have been the understanding in
Plessy's time of the power of segregation to stigmatize those who
were segregated with a badge of inferiority, it was clear by 1954
that legally sanctioned segregation had just such an effect, to
the point that racially separate public educational facilities
were deemed inherently unequal.  374 U. S., at 494-495.
Society's understanding of the facts upon which a constitutional
ruling was sought in 1954 was thus fundamentally different from
the basis claimed for the decision in 1896.  While we think
Plessy was wrong the day it was decided, see Plessy, supra, at
552-564 (Harlan, J., dissenting), we must also recognize that the
Plessy Court's explanation for its decision was so clearly at
odds with the facts apparent to the Court in 1954 that the
decision to reexamine Plessy was on this ground alone not only
justified but required.

 West Coast Hotel and Brown each rested on facts, or an
understanding of facts, changed from those which furnished the
claimed justifications for the earlier constitutional
resolutions.  Each case was comprehensible as the Court's
response to facts that the country could understand, or had come
to understand already, but which the Court of an earlier day, as
its own declarations disclosed, had not been able to perceive.
As the decisions were thus comprehensible they were also
defensible, not merely as the victories of one doctrinal school
over another by dint of numbers (victories though they were), but
as applications of constitutional principle to facts as they had
not been seen by the Court before.  In constitutional
adjudication as elsewhere in life, changed circumstances may
impose new obligations, and the thoughtful part of the Nation
could accept each decision to overrule a prior case as a response
to the Court's constitutional duty.

/* Perhaps President Roosevelts threat to pack the court if it
did not stop overruling all of the new deal legislation is also
relevant. */

 Because the case before us presents no such occasion it
could be seen as no such response.  Because neither the factual
underpinnings of Roe's central holding nor our understanding of
it has changed (and because no other indication of weakened
precedent has been shown) the Court could not pretend to be
reexamining the prior law with any justification beyond a present
doctrinal disposition to come out differently from the Court of
1973.  To overrule prior law for no other reason than that would
run counter to the view repeated in our cases, that a decision to
overrule should rest on some special reason over and above the
belief that a prior case was wrongly decided.  See, e.g.,
Mitchell v. W.T. Grant, 416 U. S.  600, 636 (1974) (Stewart, J.,
dissenting) ( A basic change in the law upon a ground no firmer
than a change in our membership invites the popular misconception
that this institution is little different from the two political
branches of the Government.  No misconception could do more
lasting injury to this Court and to the system of law which it is
our abiding mission to serve); Mapp v. Ohio, 367 U. S. 643, 677
(1961) (Harlan, J., dissenting).

 C

 The examination of the conditions justifying the
repudiation of Adkins by West Coast Hotel and Plessy by Brown is
enough to suggest the terrible price that would have been paid if
the Court had not overruled as it did.  In the present case,
however, as our analysis to this point makes clear, the terrible
price would be paid for overruling.  Our analysis would not be
complete, however, without explaining why overruling Roe's
central holding would not only reach an unjustifiable result
under principles of stare decisis, but would seriously weaken the
Court's capacity to exercise the judicial power and to function
as the Supreme Court of a Nation dedicated to the rule of law.
To understand why this would be so it is necessary to understand
the source of this Court's authority, the conditions necessary
for its preservation, and its relationship to the country's
understanding of itself as a constitutional Republic.

 The root of American governmental power is revealed most
clearly in the instance of the power conferred by the
Constitution upon the Judiciary of the United States and
specifically upon this Court.  As Americans of each succeeding
generation are rightly told, the Court cannot buy support for its
decisions by spending money and, except to a minor degree, it
cannot independently coerce obedience to its decrees.  The
Court's power lies, rather, in its legitimacy, a product of
substance and perception that shows itself in the people's
acceptance of the Judiciary as fit to determine what the Nation's
law means and to declare what it demands.

 The underlying substance of this legitimacy is of course
the warrant for the Court's decisions in the Constitution and the
lesser sources of legal principle on which the Court draws.  That
substance is expressed in the Court's opinions, and our
contemporary understanding is such that a decision without
principled justification would be no judicial act at all.  But
even when justification is furnished by apposite legal principle,
something more is required.  Because not every conscien- tious
claim of principled justification will be accepted as such, the
justification claimed must be beyond dispute.  The Court must
take care to speak and act in ways that allow people to accept
its decisions on the terms the Court claims for them, as grounded
truly in principle, not as compromises with social and political
pressures having, as such, no bearing on the principled choices
that the Court is obliged to make.  Thus, the Court's legitimacy
depends on making legally principled decisions under
circumstances in which their principled character is sufficiently
plausible to be accepted by the Nation.

 The need for principled action to be perceived as such is
implicated to some degree whenever this, or any other appellate
court, overrules a prior case.  This is not to say, of course,
that this Court cannot give a perfectly satisfactory explanation
in most cases.  People understand that some of the Constitution's
language is hard to fathom and that the Court's Justices are
sometimes able to perceive significant facts or to understand
principles of law that eluded their predecessors and that justify
departures from existing decisions.  However upsetting it may be
to those most directly affected when one judicially derived rule
replaces another, the country can accept some correction of error
without necessarily questioning the legitimacy of the Court.

 In two circumstances, however, the Court would almost
certainly fail to receive the benefit of the doubt in overruling
prior cases.  There is, first, a point beyond which frequent
overruling would overtax the country's belief in the Court's good
faith.  Despite the variety of reasons that may inform and
justify a decision to overrule, we cannot forget that such a
decision is usually perceived (and perceived correctly) as, at
the least, a statement that a prior decision was wrong.  There is
a limit to the amount of error that can plausibly be imputed to
prior courts.  If that limit should be exceeded, disturbance of
prior rulings would be taken as evidence that justifiable
reexamination of principle had given way to drives for particular
results in the short term.  The legitimacy of the Court would
fade with the frequency of its vacillation.

 That first circumstance can be described as hypothetical;
the second is to the point here and now.  Where, in the
performance of its judicial duties, the Court decides a case in
such a way as to resolve the sort of intensely divisive contro-
versy reflected in Roe and those rare, comparable cases, its
decision has a dimension that the resolution of the normal case
does not carry.  It is the dimension present whenever the Court's
interpretation of the Constitution calls the contending sides of
a national controversy to end their national division by
accepting a common mandate rooted in the Constitution.

 The Court is not asked to do this very often, having thus
addressed the Nation only twice in our lifetime, in the decisions
of Brown and Roe.  But when the Court does act in this way, its
decision requires an equally rare precedential force to counter
the inevitable efforts to overturn it and to thwart its
implementation.  Some of those efforts may be mere unprincipled
emotional reactions; others may proceed from principles worthy of
profound respect.  But whatever the premises of opposition may
be, only the most convincing justification under accepted
standards of precedent could suffice to demonstrate that a later
decision overruling the first was anything but a surrender to
political pressure, and an unjustified repudiation of the
principle on which the Court staked its authority in the first
instance.  So to overrule under fire in the absence of the most
compelling reason to reexamine a watershed decision would subvert
the Court's legitimacy beyond any serious question.  Cf. Brown
v. Board of Education, 349 U. S. 294, 300 (1955) (Brown II) (
[I]t should go without saying that the vitality of th[e]
constitutional principles [announced in Brown v. Board of
Education, 347 U. S.  483 (1954),] cannot be allowed to yield
simply because of disagreement with them).

 The country's loss of confidence in the judiciary would
be underscored by an equally certain and equally reasonable
condemnation for another failing in overruling unnecessarily and
under pressure.  Some cost will be paid by anyone who approves or
implements a constitutional decision where it is unpopular, or
who refuses to work to undermine the decision or to force its
reversal.  The price may be criticism or ostracism, or it may be
violence.  An extra price will be paid by those who themselves
disapprove of the decision's results when viewed outside of
constitutional terms, but who nevertheless struggle to accept it,
because they respect the rule of law.  To all those who will be
so tested by following, the Court implicitly undertakes to remain
steadfast, lest in the end a price be paid for nothing.  The
promise of constancy, once given, binds its maker for as long as
the power to stand by the decision survives and the understanding
of the issue has not changed so fundamentally as to render the
commitment obsolete.  From the obligation of this promise this
Court cannot and should not assume any exemption when duty
requires it to decide a case in conformance with the
Constitution.  A willing breach of it would be nothing less than
a breach of faith, and no Court that broke its faith with the
people could sensibly expect credit for principle in the decision
by which it did that.

 It is true that diminished legitimacy may be restored,
but only slowly.  Unlike the political branches, a Court thus
weakened could not seek to regain its position with a new mandate
from the voters, and even if the Court could somehow go to the
polls, the loss of its principled character could not be
retrieved by the casting of so many votes.  Like the character of
an individual, the legitimacy of the Court must be earned over
time.  So, indeed, must be the character of a Nation of people
who aspire to live according to the rule of law.  Their belief in
themselves as such a people is not readily separable from their
understanding of the Court invested with the authority to decide
their constitutional cases and speak before all others for their
constitutional ideals.  If the Court's legitimacy should be
undermined, then, so would the country be in its very ability to
see itself through its constitutional ideals.  The Court's
concern with legitimacy is not for the sake of the Court but for
the sake of the Nation to which it is responsible.

 The Court's duty in the present case is clear.  In 1973,
it confronted the already-divisive issue of governmental power to
limit personal choice to undergo abortion, for which it provided
a new resolution based on the due process guaranteed by the
Fourteenth Amendment.  Whether or not a new social consensus is
developing on that issue, its divisiveness is no less today than
in 1973, and pressure to overrule the decision, like pressure to
retain it, has grown only more intense.  A decision to overrule
Roe's essential holding under the existing circumstances would
address error, if error there was, at the cost of both profound
and unnecessary damage to the Court's legitimacy, and to the
Nation's commitment to the rule of law.  It is therefore
imperative to adhere to the essence of Roe's original decision,
and we do so today.

IV

 From what we have said so far it follows that it is a
constitutional liberty of the woman to have some freedom to
terminate her pregnancy.  We conclude that the basic decision in
Roe was based on a constitutional analysis which we cannot now
repudiate.  The woman's liberty is not so unlimited, however,
that from the outset the State cannot show its concern for the
life of the unborn, and at a later point in fetal development the
State's interest in life has sufficient force so that the right
of the woman to terminate the pregnancy can be restricted.

 That brings us, of course, to the point where much
criticism has been directed at Roe, a criticism that always
inheres when the Court draws a specific rule from what in the
Constitution is but a general standard.  We conclude, however,
that the urgent claims of the woman to retain the ultimate
control over her destiny and her body, claims implicit in the
meaning of liberty, require us to perform that function.  Liberty
must not be extinguished for want of a line that is clear.  And
it falls to us to give some real substance to the woman's liberty
to determine whether to carry her pregnancy to full term.

 We conclude the line should be drawn at viability, so
that before that time the woman has a right to choose to
terminate her pregnancy.  We adhere to this principle for two
reasons.  First, as we have said, is the doctrine of stare
decisis.  Any judicial act of line-drawing may seem somewhat
arbitrary, but Roe was a reasoned statement, elaborated with
great care.  We have twice reaffirmed it in the face of great
opposition.  See Thornburgh v. American College of Obstetricians
& Gynecologists, 476 U. S., at 759; Akron I, 462 U. S., at
419-420.  Although we must overrule those parts of Thornburgh and
Akron I which, in our view, are inconsistent with Roe's statement
that the State has a legitimate interest in promoting the life or
potential life of the unborn, see infra, at ___, the central
premise of those cases represents an unbroken commitment by this
Court to the essential holding of Roe.  It is that premise which
we reaffirm today.

 The second reason is that the concept of viability, as we
noted in Roe, is the time at which there is a realistic
possibility of maintaining and nourishing a life outside the
womb, so that the independent existence of the second life can in
reason and all fairness be the object of state protection that
now overrides the rights of the woman.  See Roe v. Wade, 410 U.
S., at 163.  Consistent with other constitutional norms,
legislatures may draw lines which appear arbitrary without the
necessity of offering a justification.  But courts may not.  We
must justify the lines we draw.  And there is no line other than
viability which is more workable.  To be sure, as we have said,
there may be some medical developments that affect the precise
point of viability, see supra, at ___, but this is an imprecision
within tolerable limits given that the medical community and all
those who must apply its discoveries will continue to explore the
matter.  The viability line also has, as a practical matter, an
element of fairness.  In some broad sense it might be said that a
woman who fails to act before viability has consented to the
State's intervention on behalf of the developing child.

 The woman's right to terminate her pregnancy before
viability is the most central principle of Roe v. Wade.  It is a
rule of law and a component of liberty we cannot renounce.

 On the other side of the equation is the interest of the
State in the protection of potential life.  The Roe Court
recognized the State's important and legitimate interest in
protecting the potentiality of human life.  Roe, supra, at 162.
The weight to be given this state interest, not the strength of
the woman's interest, was the difficult question faced in Roe.
We do not need to say whether each of us, had we been Members of
the Court when the valuation of the State inter- est came before
it as an original matter, would have concluded, as the Roe Court
did, that its weight is insufficient to justify a ban on abor-
tions prior to viability even when it is subject to certain
exceptions.  The matter is not before us in the first instance,
and coming as it does after nearly 20 years of litigation in
Roe's wake we are satisfied that the immediate question is not
the soundness of Roe's resolution of the issue, but the
precedential force that must be accorded to its holding.  And we
have concluded that the essential holding of Roe should be
reaffirmed.

 Yet it must be remembered that Roe v. Wade speaks with
clarity in establishing not only the woman's liberty but also the
State's important and legitimate interest in potential life.
Roe, supra, at 163.  That portion of the decision in Roe has been
given too little acknowledgement and implementation by the Court
in its subsequent cases.  Those cases decided that any regulation
touching upon the abortion decision must survive strict scrutiny,
to be sustained only if drawn in narrow terms to further a
compelling state interest.  See, e.g., Akron I, supra, at 427.
Not all of the cases decided under that formulation can be
reconciled with the holding in Roe itself that the State has
legitimate interests in the health of the woman and in protecting
the potential life within her.  In resolving this tension, we
choose to rely upon Roe, as against the later cases.

 Roe established a trimester framework to govern abortion
regulations.  Under this elaborate but rigid construct, almost no
regulation at all is permitted during the first trimester of
pregnancy; regulations designed to protect the woman's health,
but not to further the State's interest inpotential life, are
permitted during the second trimester; and during the third
trimester, when the fetus is viable, prohibitions are permitted
provided the life or health of the mother is not at stake.  Roe
v. Wade, supra, at 163-166.  Most of our cases since Roe have
involved the application of rules derived from the trimester
framework.  See, e.g., Thornburgh v. American College of
Obstetricians and Gynecologists, supra; Akron I, supra.

 The trimester framework no doubt was erected to ensure
that the woman's right to choose not become so subordinate to the
State's interest in promoting fetal life that her choice exists
in theory but not in fact.  We do not agree, however, that the
trimester approach is necessary to accomplish this objective.  A
framework of this rigidity was unnecessary and in its later
interpretation sometimes contradicted the State's permissible
exercise of its powers.

 Though the woman has a right to choose to terminate or
continue her pregnancy before viability, it does not at all
follow that the State is prohibited from taking steps to ensure
that this choice is thoughtful and informed.  Even in the
earliest stages of pregnancy, the State may enact rules and
regulations designed to encourage her to know that there are
philosophic and social arguments of great weight that can be
brought to bear in favor of continuing the pregnancy to full term
and that there are procedures and institutions to allow adoption
of unwanted children as well as a certain degree of state
assistance if the mother chooses to raise the child herself.
`[T]he Constitution does not forbid a State or city, pursuant to
democratic processes, from expressing a preference for normal
childbirth.' Webster v. Reproductive Health Services, 492 U. S.,
at 511 (opinion of the Court) (quoting Poelker v. Doe, 432 U. S.
519, 521 (1977)).  It follows that States are free to enact laws
to provide a reasonable framework for a woman to make a decision
that has such profound and lasting meaning.  This, too, we find
consistent with Roe's central premises, and indeed the inevitable
consequence of our holding that the State has an interest in
protecting the life of the unborn.

 We reject the trimester framework, which we do not
consider to be part of the essential holding of Roe.  See Webster
v. Reproductive Health Services, supra, at 518 (opinion of
Rehnquist, C. J.); id., at 529 (O'Connor, J., concurring in part
and concurring in judgment) (describing the trimester framework
as problematic).  Measures aimed at ensuring that a woman's
choice contemplates the consequences for the fetus do not
necessarily interfere with the right recognized in Roe, although
those measures have been found to be inconsistent with the rigid
trimester framework announced in that case.  A logical reading of
the central holding in Roe itself, and a necessary reconciliation
of the liberty of the woman and the interest of the State in
promoting prenatal life, require, in our view, that we abandon
the trimes- ter framework as a rigid prohibition on all
previability regulation aimed at the protection of fetal life.
The trimester framework suffers from these basic flaws: in its
formulation it misconceives the nature of the pregnant woman's
interest; and in practice it undervalues the State's interest in
potential life, as recognized in Roe.  As our jurisprudence
relating to all liberties save perhaps abortion has recognized,
not every law which makes a right more difficult to exercise is,
ipso facto, an infringement of that right.  An example clarifies
the point.  We have held that not every ballot access limitation
amounts to an infringement of the right to vote.  Rather, the
States are granted substantial flexibility in establishing the
framework within which voters choose the candidates for whom they
wish to vote.  Anderson v. Celebrezze, 460 U. S. 780, 788 (1983);
Norman v. Reed, 502 U. S. ___ (1992).

 The abortion right is similar.  Numerous forms of state
regulation might have the incidental effect of increasing the
cost or decreasing the availability of medical care, whether for
abortion or any other medical procedure.  The fact that a law
which serves a valid purpose, one not designed to strike at the
right itself, has the incidental effect of making it more
difficult or more expensive to procure an abortion cannot be
enough to invalidate it.  Only where state regulation imposes an
undue burden on a woman's ability to make this decision does the
power of the State reach into the heart of the liberty protected
by the Due Process Clause.  See Hodgson v. Minnesota, 497 U.S.
417, 458-459 (1990) (O'Connor, J., concurring in part and
concurring in judgment in part); Ohio v.  Akron Center for
Reproductive Health, 497 U. S.  502, --- (1990) (Akron II)
(opinion of Kennedy, J.) Webster v. Reproductive Health Services,
supra, at 530 (O'Connor, J., concurring in part and concurring in
judgment); Thornburgh v. American College of Obstetricians and
Gynecologists, 476 U. S., at 828 (O'Connor, J., dissenting);
Simopoulos v. Virginia, 462 U. S. 506, 520 (1983) (O'Connor, J.,
concurring in part and concurring in judgment); Planned
Parenthood Assn. of Kansas City v. Ashcroft, 462 U. S.  476, 505
(1983) (O'Connor, J., concurring in judgment in part and
dissenting in part); Akron I, 462 U.S., at 464 (O'Connor, J.,
joined by White and Rehnquist, JJ., dissenting); Bellotti v.
Baird, 428 U.S. 132, 147 (1976) (Bellotti I).

/* This statement tends to avoid the fact that brain surgery,
which is life threatening and far more chancy that an abortion
does not have:

(1) Spousal notification requirements;
(2) 24 hour cooling off periods;
(3) special laws requiring information for the patient to be
presented, etc.

Immediately after Roe (and as the opinion will state in the next
sections) many states required extraordinary and burdensome
requirements to make abortions legal but the Court struck this
down. This new "re-affirmance" of the central principles of Roe
is thus actually a significant retreat, allowing a great deal
more "back door" regulation of abortions within the time fram
when Roe provides for abortions on demand. */

 For the most part, the Court's early abortion cases
adhered to this view.  In Maher v. Roe, 432 U.S. 464, 473-474
(1977), the Court explained:  Roe did not declare an unqualified
`constitutional right to an abortion,' as the District Court
seemed to think.  Rather, the right protects the woman from
unduly burdensome interference with her freedom to decide whether
to terminate her pregnancy.  See also Doe v. Bolton, 410 U. S.
179, 198 (1973) ( [T]he interposition of the hospital abortion
committee is unduly restrictive of the patient's rights);
Bellotti I, supra, at 147 (State may not impose undue burdens
upon a minor capable of giving an informed consent); Harris v.
McRae, 448 U. S. 297, 314 (1980) (citing Maher, supra).  Cf.
Carey v. Population Services International, 431 U. S., at 688 (
[T]he same test must be applied to state regulations that burden
an individual's right to decide to prevent conception or
terminate pregnancy by substantially limiting access to the means
of effectuating that decision as is applied to state statutes
that prohibit the decision entirely).

 These considerations of the nature of the abortion right
illustrate that it is an overstatement to describe it as a right
to decide whether to have an abortion without interference from
the State, Planned Parenthood of Central Mo. v.  Danforth, 428 U.
S. 52, 61 (1976).  All abortion regulations interfere to some
degree with a woman's ability to decide whether to terminate her
pregnancy.  It is, as a consequence, not surprising that despite
the protestations contained in the original Roe opinion to the
effect that the Court was not recognizing an absolute right, 410
U. S., at 154-155, the Court's experience applying the trimester
framework has led to the striking down of some abortion
regulations which in no real sense deprived women of the ultimate
decision.  Those decisions went too far because the right
recognized by Roe is a right to be free from unwarranted
governmental intrusion into matters so fundamentally affecting a
person as the deci sion whether to bear or beget a child.
Eisenstadt v. Baird, 405 U. S., at 453.  Not all governmental
intrusion is of necessity unwarranted; and that brings us to the
other basic flaw in the trimester framework: even in Roe's terms,
in practice it undervalues the State's interest in the potential
life within the woman.

 Roe v. Wade was express in its recognition of the State's
important and legitimate interest[s] in preserving and protecting
the health of the pregnant woman [and] in protecting the
potentiali- ty of human life.  410 U. S., at 162.  The trimester
framework, however, does not fulfill Roe's own promise that the
State has an interest in protecting fetal life or potential life.
Roe began the contradiction by using the trimester framework to
forbid any regulation of abortion designed to advance that
interest before viability.  Id., at 163.  Before viability, Roe
and subsequent cases treat all governmental attempts to influence
a woman's decision on behalf of the potential life within her as
unwarranted.  This treatment is, in our judgment, incompatible
with the recognition that there is a substantial state interest
in potential life throughout pregnancy.  Cf. Webster, 492 U. S.,
at 519 (opinion of Rehnquist, C. J.); Akron I, supra, at 461
(O'Connor, J., dissenting).

 The very notion that the State has a substantial interest
in potential life leads to the conclusion that not all
regulations must be deemed unwarranted.  Not all burdens on the
right to decide whether to terminate a pregnancy will be undue.
In our view, the undue burden standard is the appropriate means
of reconciling the State's interest with the woman's
constitutionally protected liberty.

 The concept of an undue burden has been utilized by the
Court as well as individual members of the Court, including two
of us, in ways that could be considered inconsistent.  See, e.g.,
Hodgson v.  Minnesota, 497 U. S., at --- (O'Connor, J.,
concurring in part and concurring in judgment); Akron II, 497 U.
S., at --- (opinion of Kennedy, J.); Thornburgh v. American
College of Obstetricians and Gynecologists, 476 U. S., at 828-829
(O'Connor, J., dissenting); Akron I, supra, at 461-466 (O'Connor,
J., dissenting); Harris v. McRae, supra, at 314; Maher v. Roe,
supra, at 473; Beal v. Doe, 432 U. S.  438, 446 (1977); Bellotti
I, supra, at 147.  Because we set forth a standard of general
application to which we intend to adhere, it is important to
clarify what is meant by an undue burden.

 A finding of an undue burden is a shorthand for the
conclusion that a state regulation has the purpose or effect of
placing a substantial obstacle in the path of a woman seeking an
abortion of a nonviable fetus.  A statute with this purpose is
invalid because the means chosen by the State to further the
interest in potential life must be calculated to inform the
woman's free choice, not hinder it.  And a statute which, while
furthering the interest in potential life or some other valid
state interest, has the effect of placing a substantial obstacle
in the path of a woman's choice cannot be considered a
permissible means of serving its legitimate ends.  To the extent
that the opinions of the Court or of individual Justices use the
undue burden standard in a manner that is inconsistent with this
analysis, we set out what in our view should be the controlling
standard.  Cf. McCleskey v. Zant, 499 U. S. ---, ---
(1991) (slip op., at 20) (attempting to define the doctrine of
abuse of the writ with more precision after acknowledging tension
among earlier cases).  In our considered judgment, an undue
burden is an unconstitutional burden.  See Akron II, supra, at
--- (opinion of Kennedy, J.).  Understood another way, we answer
the question, left open in previous opinions discussing the undue
burden formulation, whether a law designed to further the State's
interest in fetal life which imposes an undue burden on the
woman's decision before fetal viability could be constitutional.
See, e.g., Akron I, supra, at 462-463 (O'Connor, J., dissenting).
The answer is no.

 Some guiding principles should emerge.  What is at stake
is the woman's right to make the ultimate decision, not a right
to be insulated from all others in doing so.  Regulations which
do no more than create a structural mechanism by which the State,
or the parent or guardian of a minor, may express profound
respect for the life of the unborn are permitted, if they are not
a substan- tial obstacle to the woman's exercise of the right to
choose.  See infra, at ___-___ (addressing Pennsylvania's
parental consent requirement).  Unless it has that effect on her
right of choice, a state measure designed to persuade her to
choose childbirth over abortion will be upheld if reasonably
related to that goal.  Regulations designed to foster the health
of a woman seeking an abortion are valid if they do not
constitute an undue burden.

 Even when jurists reason from shared premises, some
disagreement is inevitable.  Compare Hodgson, 497 U. S., at
------- (opinion of Kennedy, J.) with id., at ------- (O'Connor,
J., concurring in part and concurring in judgment in part).  That
is to be expected in the application of any legal standard which
must accommodate life's complexity.  We do not expect it to be
otherwise with respect to the undue burden standard.  We give
this summary:

 (a) To protect the central right recognized by Roe v.
Wade while at the same time accommodating the State's profound
interest in potential life, we will employ the undue burden
analysis as explained in this opinion.  An undue burden exists,
and therefore a provision of law is invalid, if its purpose or
effect is to place a substantial obstacle in the path of a woman
seeking an abortion before the fetus attains viability.

 (b) We reject the rigid trimester framework of Roe v.
Wade.  To promote the State's profound interest in potential
life, throughout pregnancy the State may take measures to ensure
that the woman's choice is informed, and measures designed to
advance this interest will not be invalidated as long as their
purpose is to persuade the woman to choose childbirth over
abortion.  These measures must not be an undue burden on the
right.

 (c)  As with any medical procedure, the State may enact
regulations to further the health or safety of a woman seeking an
abortion.  Unnecessary health regulations that have the purpose
or effect of presenting a substantial obstacle to a woman seeking
an abortion impose an undue burden on the right.

/* This begs the question. If critical brain surgery is not
singled out for special restriction, then the question becomes
one of intepreting intent. Placing even simple recordkeeping
requirements on operations or seemingly innocuous waiting periods
may not seem greatly burdensome, but do in fact appear to be
quite difficult to reconcile with the fact that JUST abortion is
chosen for such regulations. */

 (d) Our adoption of the undue burden analysis does not
disturb the central holding of Roe v.  Wade, and we reaffirm that
holding.  Regardless of whether exceptions are made for
particular circumstances, a State may not prohibit any woman from
making the ultimate decision to terminate her pregnancy before
viability.

 (e) We also reaffirm Roe's holding that subsequent to
viability, the State in promoting its interest in the
potentiality of human life may, if it chooses, regulate, and even
proscribe, abortion except where it is necessary, in appropriate
medical judgment, for the preservation of the life or health of
the mother.  Roe v. Wade, 410 U. S., at 164-165.

 These principles control our assessment of the
Pennsylvania statute, and we now turn to the issue of the
validity of its challenged provisions.

V

 The Court of Appeals applied what it believed to be the
undue burden standard and upheld each of the provisions except
for the husband notification requirement.  We agree generally
with this conclusion, but refine the undue burden analysis in
accordance with the principles articulated above.  We now
consider the separate statutory sections at issue.


A

 Because it is central to the operation of various other
requirements, we begin with the statute's definition of medical
emergency.  Under the statute, a medical emergency is

       [t]hat condition which, on the basis of the physician's
      good faith clinical judgment, so complicates the
      medical condition of a pregnant woman as to necessitate
      the immediate abortion of her pregnancy to avert her
      death or for which a delay will create serious risk of
      substantial and irreversible impairment of a major
      bodily function.  18 Pa. Cons. Stat.  (1990).  3203.

Petitioners argue that the definition is too narrow, contending
that it forecloses the possibility of an immediate abortion
despite some significant health risks.  If the contention were
correct, we would be required to invalidate the restrictive
operation of the provision, for the essential holding of Roe
forbids a State from interfering with a woman's choice to undergo
an abortion procedure if continuing her pregnancy would
constitute a threat to her health.  410 U. S., at 164.  See also
Harris v. McRae, 448 U. S., at 316.

 The District Court found that there were three serious
conditions which would not be covered by the statute:
preeclampsia, inevitable abortion, and premature ruptured
membrane.  744 F. Supp., at 1378.  Yet, as the Court of Appeals
observed, 947 F.2d, at 700-701, it is undisputed that under some
circumstances each of these conditions could lead to an illness
with substantial and irreversible consequences.  While the
definition could be interpreted in an unconstitutional manner,
the Court of Appeals construed the phrase serious risk to include
those circumstances.  Id., at 701.  It stated:  we read the
medical emergency exception as intended by the Pennsylvania
legislature to assure that compliance with its abortion
regulations would not in any way pose a significant threat to the
life or health of a woman.  Ibid.  As we said in Brockett v.
Spokane Arcades, Inc., 472 U. S. 491, 499-500 (1985):
Normally, . . .  we defer to the construction of a state statute
given it by the lower federal courts.  Indeed, we have said that
we will defer to lower court interpretations of state law unless
they amount to  plain error.  Palmer v. Hoffman, 318 U. S. 109,
118 (1943).  This `reflect[s] our belief that district courts and
courts of appeals are better schooled in and more able to
interpret the laws of their respective States.' Frisby v.
Schultz, 487 U. S.  474, 482 (1988) (citation omitted).  We
adhere to that course today, and conclude that, as construed by
the Court of Appeals, the medical emergency definition imposes no
undue burden on a woman's abortion right.

/* The "we will assume that they will re-write the statute
through interpreting it" rule in which an invalid regulation is
upheld due to, in this case, hoped constructions of the law. Or,
it is a notice to the state that if it wants the law to be
enforceable that the courts must narrow the scope of what the
legislature intended. */

 B

 We next consider the informed consent requirement.  18
Pa. Cons. Stat. Ann. 3205.  Except in a medical emergency, the
statute requires that at least 24 hours before performing an
abortion a physician inform the woman of the nature of the
procedure, the health risks of the abortion and of childbirth,
and the probable gestational age of the unborn child.  The
physician or a qualified nonphysician must inform the woman of
the availability of printed materials published by the State
describing the fetus and providing information about medical
assistance for childbirth, information about child support from
the father, and a list of agencies which provide adoption and
other services as alternatives to abortion.  An abortion may not
be performed unless the woman certifies in writing that she has
been informed of the availability of these printed materials and
has been provided them if she chooses to view them.

 Our prior decisions establish that as with any medical
procedure, the State may require a woman to give her written
informed consent to an abortion.  See Planned Parenthood of
Central Mo. v.  Danforth, 428 U. S., at 67.  In this respect, the
statute is unexceptional.  Petitioners challenge the statute's
definition of informed consent because it includes the provision
of specific information by the doctor and the mandatory 24-hour
waiting period.  The conclusions reached by a majority of the
Justices in the separate opinions filed today and the undue
burden standard adopted in this opinion require us to overrule in
part some of the Court's past decisions, decisions driven by the
trimester framework's prohibition of all previability regulations
designed to further the State's interest in fetal life.