Complete Home & Office Legal Guide

home *** CD-ROM | disk | FTP | other *** search

/ Complete Home & Office Legal Guide / Complete Home and Office Legal Guide (Chestnut) (1993).ISO / stat / ussct / abort2.ws < prev next >

Wrap

Text File | 1993-08-01 | 57.9 KB | 1,039 lines

So in this case we may inquire whether Roe's central rule ì has been found unworkable; whether the rule's limitation on state ì power could be removed without serious inequity to those who have ì relied upon it or significant damage to the stability of the ì society governed by the rule in question; whether the law's ì growth in the inter vening years has left Roe's central rule a ì doctrinal anachronism discounted by society; and whether Roe's ì premises of fact have so far changed in the ensuing two decades ì as to render its central holding somehow irrelevant or ì unjustifiable in dealing with the issue it addressed. 1 Although Roe has engendered opposition, it has in no ì sense proven unworkable, see Garcia v. San Antonio Metropolitan ì Transit Authority, 469 U. S. 528, 546 (1985), representing as it ì does a simple limitation beyond which a state law is ì unenforceable. While Roe has, of course, required judicial ì assessment of state laws affecting the exercise of the choice ì guaranteed against government infringement, and although the need ì for such review will remain as a consequence of today's decision, ì the required determinations fall within judicial competence. 2 The inquiry into reliance counts the cost of a rule's ì repudiation as it would fall on those who have relied reasonably ì on the rule's continued application. Since the classic case for ì weighing reliance heavily in favor of following the earlier rule ì occurs in the commercial context, see Payne v. Tennessee, supra, ì at ____ (slip op., at ___), where advance planning of great ì precision is most obviously a necessity, it is no cause for ì surprise that some would find no reliance worthy of consideration ì in support of Roe. While neither respondents nor their amici in so many ì words deny that the abortion right invites some reliance prior to ì its actual exercise, one can readily imagine an argument ì stressing the dissimilarity of this case to one involving ì property or contract. Abortion is customarily chosen as an ì unplanned response to the consequence of unplanned activity or to ì the failure of conventional birth control, and except on the ì assumption that no intercourse would have occurred but for Roe's ì holding, such behavior may appear to justify no reliance claim. ì Even if reliance could be claimed on that unrealistic assumption, ì the argument might run, any reliance interest would be de ì minimis. This argument would be premised on the hypothesis that ì reproductive planning could take virtually immediate account of ì any sudden restoration of state authority to ban abortions. To eliminate the issue of reliance that easily, however, ì one would need to limit cognizable reliance to specific instances ì of sexual activity. But to do this would be simply to refuse to ì face the fact that for two decades of economic and social ì developments, people have organized intimate relationships and ì made choices that define their views of themselves and their ≡7É3 ìèplaces in society, in reliance on the availability of abortion in ì the event that contraception should fail. The ability of women ì to participate equally in the economic and social life of the ì Nation has been facilitated by their ability to control their ì reproductive lives. See, e.g., R. Petchesky, Abortion and ì Woman's Choice 109, 133, n. 7 (rev. ed. 1990). The Constitution ì serves human values, and while the effect of reliance on Roe ì cannot be exactly measured, neither can the certain cost of ì overruling Roe for people who have ordered their thinking and ì living around that case be dismissed. 3 No evolution of legal principle has left Roe's doctrinal ì footings weaker than they were in 1973. No development of ì constitutional law since the case was decided has implicitly or ì explicitly left Roe behind as a mere survivor of obsolete ì constitutional thinking. It will be recognized, of course, that Roe stands at an ì intersection of two lines of decisions, but in whichever ì doctrinal category one reads the case, the result for present ì purposes will be the same. The Roe Court itself placed its ì holding in the succession of cases most prominently exemplified ì by Griswold v. Connecticut, 381 U. S. 479 (1965), see Roe, 410 U. ì S., at 152-153. When it is so seen, Roe is clearly in no ì jeopardy, since subsequent constitutional developments have ì neither disturbed, nor do they threaten to diminish, the scope of ì recognized protection accorded to the liberty relating to ì intimate relationships, the family, and decisions about whether ì or not to beget or bear a child. See, e.g., Carey v. Population ì Services International, 431 U. S. 678 (1977); Moore v. East ì Cleveland, 431 U. S. 678 (1977). Roe, however, may be seen not only as an exemplar of ì Griswold liberty but as a rule (whether or not mistaken) of ì personal autonomy and bodily integrity, with doctrinal affinity ì to cases recognizing limits on governmental power to mandate ì medical treatment or to bar its rejection. If so, our cases ì since Roe accord with Roe's view that a State's interest in the ì protection of life falls short of justifyingany plenary override ì of individual liberty claims. Cruzan v. Director, Missouri Dept. ì of Health, 497 U.S. 261,278 (1990); Cf., e.g., Riggins v. Nevada, ì 504 U.S. ____, ____ (1992) (slip. op., at 7); Washington v. Harper, 494 U. S.210 (1990); see also, e.g., Rochin v. ì California, 342 U.S. 165 (1952); Jacobson v. Massachusetts, 197 ì U. S. 11, 24-30 (1905). Finally, one could classify Roe as sui generis. If the ì case is so viewed, then there clearly has been no erosion of its ì central determination. The original holding resting on the ì concurrence of seven Members of the Court in 1973 was expressly ì affirmed by a majority of six in 1983, see Akron v. Akron Center ì for Reproductive Health, Inc., 462 U.S. 416 (1983) (Akron I), and ì by a majority of five in 1986, see Thornburgh v. American College ≡7É3 ìèof Obstetricians and Gynecologists, 476 U. S. 747 (1986), ì expressing adherence to the constitutional ruling despite ì legislative efforts in some States to test its limits. More ì recently, in Webster v. Reproductive Health Services, 492 U. S. ì 490 (1989), although two of the present authors questioned the ì trimester framework in a way consistent with our judgment today, ì see id., at 518 (Rehnquist C. J., joined by White, and Kennedy, ì JJ.); id., at 529 (O'Connor, J., concurring in part and ì concurring in judgment), a majority of the Court either decided ì to reaffirm or declined to address the constitutional validity of ì the central holding of Roe. See Webster, 492 U. S., at 521 ì (Rehnquist, C. J., joined by White and Kennedy, JJ.); id., at ì 525-526 (O'Con- nor, J., concurring in part and concurring in ì judgment); id., at 537, 553 (Blackmun, J., joined by Brennan and ì Marshall, JJ., concurring in part and dissenting in part); id., ì at 561-563 (Stevens, J., concurring in part and dissenting in ì part). Nor will courts building upon Roe be likely to hand down ì erroneous decisions as a consequence. Even on the assumption ì that the central holding of Roe was in error, that error would go ì only to the strength of the state interest in fetal protection, ì not to the recognition afforded by the Constitution to the ì woman's liberty. The latter aspect of the decision fits ì comfortably within the framework of the Court's prior decisions ì including Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 ì (1942), Griswold, supra, Loving v. Virginia, 388 U. S. 1 (1967), ì and Eisenstadt v. Baird, 405 U. S. 438 (1972), the holdings of ì which are not a series of isolated points, but mark a rational ì continuum. Poe v. Ullman, 367 U. S., at 543 (1961) (Harlan, J., ì dissenting). As we described in Carey v. Population Services ì International, supra, the liberty which encompasses those ì decisions includes `the interest in independence in making ì certain kinds of important decisions.' While the outer limits of ì this aspect of [protected liberty] have not been marked by the ì Court, it is clear that among the decisions that an individual ì may make without unjustified government interference are personal ì decisions `relating to marriage, procreation, contraception, ì family relationships, and child rearing and education.' Id., at ì 684-685 (citations omitted). The soundness of this prong of the ì Roe analysis is apparent from a consideration of the alternative. ì If indeed the woman's interest in deciding whether to bear and ì beget a child had not been recognized as in Roe, the State might ì as readily restrict a woman's right to choose to carry a ì pregnancy to term as to terminate it, to further asserted state ì interests in population control, or eugenics, for example. Yet ì Roe has been sensibly relied upon to counter any such ì suggestions. E.g., Arnold v. Board of Education of Escambia ì County, Ala., 880 F. 2d 305, 311 (CA11 1989) (relying upon Roe ì and concluding that government officials violate the Constitution ì by coercing a minor to have an abortion); Avery v. County of ì Burke, 660 F. 2d 111, 115 (CA4 1981) (county agency inducing ì teenage girl to undergo unwanted sterilization on the basis of ì misrepresentation that she had sickle cell trait); see also In re ì Quinlan, 70 N.J. 10, 355 A. 2d 647, cert. denied sub nom. Garger ≡7É3 ìèv. New Jersey, 429 U. S. 922 (1976) (relying on Roe in finding a ì right to terminate medical treatment). In any event, because ì Roe's scope is confined by the fact of its concern with ì postconception potential life, a concern otherwise likely to be ì implicated only by some forms of contraception protected ì independently under Griswold and later cases, any error in Roe is ì unlikely to have serious ramifications in future cases. /* The Court does not dwell on the fact that the states not only ì used to outlaw abortion, but in many cases, they also required ì forced sterilizations. Roe also can be seen to limit (or even ì prohibit) state laws, active into the 1970's where those below ì certain IQ's were sterilized. */ 4 We have seen how time has overtaken some of Roe's factual ì assumptions: advances in maternal health care allow for abortions ì safe to the mother later in pregnancy than was true in 1973, see ì Akron I, supra, at 429, n. 11, and advances in neonatal care have ì advanced viability to a point somewhat earlier. Compare Roe, 410 ì U. S., at 160, with Webster, supra, at 515-516 (opinion of ì Rehnqu- ist, C.J.); see Akron I, supra, at 457, and n. 5 ì (O'Connor, J., dissenting). But these facts go only to the ì scheme of time limits on the realization of competing interests, ì and the divergences from the factual premises of 1973 have no ì bearing on the validity of Roe's central holding, that viability ì marks the earliest point at which the State's interest in fetal ì life is constitutionally adequate to justify a legislative ban on ì nontherapeutic abortions. The soundness or unsoundness of that ì constitutional judgment in no sense turns on whether viability ì occurs at approximately 28 weeks, as was usual at the time of ì Roe, at 23 to 24 weeks, as it sometimes does today, or at some ì moment even slightly earlier in pregnancy, as it may if fetal ì respiratory capacity can somehow be enhanced in the future. ì Whenever it may occur, the attainment of viability may continue ì to serve as the critical fact, just as it has done since Roe was ì decided; which is to say that no change in Roe's factual ì underpinning has left its central holding obsolete, and none ì supports an argument for overruling it. 5 The sum of the precedential inquiry to this point shows ì Roe's underpinnings unweakened in any way affecting its central ì holding. While it has engendered disapproval, it has not been ì unworkable. An entire generation has come of age free to assume ì Roe's concept of liberty in defining the capacity of women to act ì in society, and to make reproductive decisions; no erosion of ì principle going to liberty or personal autonomy has left Roe's ì central holding a doctrinal remnant; Roe portends no developments ì at odds with other precedent for the analysis of personal ì liberty; and no changes of fact have rendered viability more or ì less appropriate as the point at which the balance of interests ≡7É3 ìètips. Within the bounds of normal stare decisis analysis, then, ì and subject to the considerations on which it customarily turns, ì the stronger argument is for affirming Roe's central holding, ì with whatever degree of personal reluctance any of us may have, ì not for overruling it. /* This analysis is quite similar to that of "liberty interest" ì as applied to the states. A state does not have to accord certain ì types of rights to its citizens; but once it does, the revocation ì or limitation of the privileges must be pursuant to due process. ì The Court argues here that it grant an expectation of the right ì to abortions during the early part of pregnancy and thus should ì not cavalierly overrule the same. */ B In a less significant case, stare decisis analysis could, ì and would, stop at the point we have reached. But the sustained ì and widespread debate Roe has provoked calls for some comparison ì between that case and others of comparable dimension that have ì responded to national controversies and taken on the impress of ì the controversies addressed. Only two such decisional lines from ì the past century present themselves for examination, and in each ì instance the result reached by the Court accorded with the ì principles we apply today. The first example is that line of cases identified with ì Lochner v. New York, 198 U. S. 45 (1905), which imposed ì substantive limitations on legislation limiting economic autonomy ì in favor of health and welfare regulation, adopting, in Justice ì Holmes' view, the theory of laissez-faire. Id., at 75 (Holmes, ì J., dissenting). The Lochner decisions were exemplified by ì Adkins v. Children's Hospital of D.C., 261 U. S. 525 (1923), in ì which this Court held it to be an infringement of ì constitutionally protected liberty of contract to require the ì employers of adult women to satisfy minimum wage standards. ì Fourteen years later, West Coast Hotel Co. v. Parrish, 300 U. S. ì 379 (1937), signalled the demise of Lochner by overruling Adkins. ì In the meantime, the Depression had come and, with it, the lesson ì that seemed unmistakable to most people by 1937, that the ì interpretation of contractual freedom protected in Adkins rested ì on fundamentally false factual assumptions about the capacity of ì a relatively unregulated market to satisfy minimal levels of ì human welfare. See West Coast Hotel Co., supra, at 399. As ì Justice Jackson wrote of the constitutional crisis of 1937 ì shortly before he came on the bench, The older world of laissez ì faire was recognized everywhere outside the Court to be dead. R. ì Jackson, The Struggle for Judicial Supremacy 85 (1941). The ì facts upon which the earlier case had premised a constitutional ì resolution of social controversy had proved to be untrue, and ì history's demonstration of their untruth not only justified but ì required the new choice of constitutional principle that West ì Coast Hotel announced. Of course, it was true that the Court ì lost something by its misperception, or its lack of prescience, ≡7É3 ìèand the Court-packing crisis only magnified the loss; but the ì clear demonstration that the facts of economic life were ì different from those previously assumed warranted the repudiation ì of the old law. The second comparison that 20th century history invites ì is with the cases employing the separate-but-equal rule for ì applying the Fourteenth Amendment's equal protection guarantee. ì They began with Plessy v. Ferguson, 163 U. S. 537 (1896), holding ì that legislatively mandated racial segregation in public ì transportation works no denial of equal protection, rejecting the ì argument that racial separation enforced by the legal machinery ì of American society treats the black race as inferior. The ì Plessy Court considered the underlying fallacy of the plaintiff's ì argument to consist in the assumption that the enforced ì separation of the two races stamps the colored race with a badge ì of inferiority. If this be so, it is not by reason of anything ì found in the act, but solely because the colored race chooses to ì put that construction upon it. Id., at at 551. Whether, as a ì matter of historical fact, the Justices in the Plessy majority ì believed this or not, see id., at 557, 562 (Harlan, J., ì dissenting), this understanding of the implication of segregation ì was the stated justification for the Court's opinion. But this ì understanding of the facts and the rule it was stated to justify ì were repudiated in Brown v. Board of Education, 347 U. S. 483 ì (1954). As one commentator observed, the question before the ì Court in Brown was whether discrimination inheres in that ì segregation which is imposed by law in the twentieth century in ì certain specific states in the American Union. And that question ì has meaning and can find an answer only on the ground of history ì and of common knowledge about the facts of life in the times and ì places afore- said. Black, The Lawfulness of the Segregation ì Decisions, 69 Yale L. J. 421, 427 (1960). The Court in Brown addressed these facts of life by ì observing that whatever may have been the understanding in ì Plessy's time of the power of segregation to stigmatize those who ì were segregated with a badge of inferiority, it was clear by 1954 ì that legally sanctioned segregation had just such an effect, to ì the point that racially separate public educational facilities ì were deemed inherently unequal. 374 U. S., at 494-495. ì Society's understanding of the facts upon which a constitutional ì ruling was sought in 1954 was thus fundamentally different from ì the basis claimed for the decision in 1896. While we think ì Plessy was wrong the day it was decided, see Plessy, supra, at ì 552-564 (Harlan, J., dissenting), we must also recognize that the ì Plessy Court's explanation for its decision was so clearly at ì odds with the facts apparent to the Court in 1954 that the ì decision to reexamine Plessy was on this ground alone not only ì justified but required. West Coast Hotel and Brown each rested on facts, or an ì understanding of facts, changed from those which furnished the ì claimed justifications for the earlier constitutional ì resolutions. Each case was comprehensible as the Court's ≡7É3 ìèresponse to facts that the country could understand, or had come ì to understand already, but which the Court of an earlier day, as ì its own declarations disclosed, had not been able to perceive. ì As the decisions were thus comprehensible they were also ì defensible, not merely as the victories of one doctrinal school ì over another by dint of numbers (victories though they were), but ì as applications of constitutional principle to facts as they had ì not been seen by the Court before. In constitutional ì adjudication as elsewhere in life, changed circumstances may ì impose new obligations, and the thoughtful part of the Nation ì could accept each decision to overrule a prior case as a response ì to the Court's constitutional duty. /* Perhaps President Roosevelts threat to pack the court if it ì did not stop overruling all of the new deal legislation is also ì relevant. */ Because the case before us presents no such occasion it ì could be seen as no such response. Because neither the factual ì underpinnings of Roe's central holding nor our understanding of ì it has changed (and because no other indication of weakened ì precedent has been shown) the Court could not pretend to be ì reexamining the prior law with any justification beyond a present ì doctrinal disposition to come out differently from the Court of ì 1973. To overrule prior law for no other reason than that would ì run counter to the view repeated in our cases, that a decision to ì overrule should rest on some special reason over and above the ì belief that a prior case was wrongly decided. See, e.g., ì Mitchell v. W.T. Grant, 416 U. S. 600, 636 (1974) (Stewart, J., ì dissenting) ( A basic change in the law upon a ground no firmer ì than a change in our membership invites the popular misconception ì that this institution is little different from the two political ì branches of the Government. No misconception could do more ì lasting injury to this Court and to the system of law which it is ì our abiding mission to serve); Mapp v. Ohio, 367 U. S. 643, 677 ì (1961) (Harlan, J., dissenting). C The examination of the conditions justifying the ì repudiation of Adkins by West Coast Hotel and Plessy by Brown is ì enough to suggest the terrible price that would have been paid if ì the Court had not overruled as it did. In the present case, ì however, as our analysis to this point makes clear, the terrible ì price would be paid for overruling. Our analysis would not be ì complete, however, without explaining why overruling Roe's ì central holding would not only reach an unjustifiable result ì under principles of stare decisis, but would seriously weaken the ì Court's capacity to exercise the judicial power and to function ì as the Supreme Court of a Nation dedicated to the rule of law. ì To understand why this would be so it is necessary to understand ì the source of this Court's authority, the conditions necessary ì for its preservation, and its relationship to the country's ì understanding of itself as a constitutional Republic. ≡7É3 è The root of American governmental power is revealed most ì clearly in the instance of the power conferred by the ì Constitution upon the Judiciary of the United States and ì specifically upon this Court. As Americans of each succeeding ì generation are rightly told, the Court cannot buy support for its ì decisions by spending money and, except to a minor degree, it ì cannot independently coerce obedience to its decrees. The ì Court's power lies, rather, in its legitimacy, a product of ì substance and perception that shows itself in the people's ì acceptance of the Judiciary as fit to determine what the Nation's ì law means and to declare what it demands. The underlying substance of this legitimacy is of course ì the warrant for the Court's decisions in the Constitution and the ì lesser sources of legal principle on which the Court draws. That ì substance is expressed in the Court's opinions, and our ì contemporary understanding is such that a decision without ì principled justification would be no judicial act at all. But ì even when justification is furnished by apposite legal principle, ì something more is required. Because not every conscien- tious ì claim of principled justification will be accepted as such, the ì justification claimed must be beyond dispute. The Court must ì take care to speak and act in ways that allow people to accept ì its decisions on the terms the Court claims for them, as grounded ì truly in principle, not as compromises with social and political ì pressures having, as such, no bearing on the principled choices ì that the Court is obliged to make. Thus, the Court's legitimacy ì depends on making legally principled decisions under ì circumstances in which their principled character is sufficiently ì plausible to be accepted by the Nation. The need for principled action to be perceived as such is ì implicated to some degree whenever this, or any other appellate ì court, overrules a prior case. This is not to say, of course, ì that this Court cannot give a perfectly satisfactory explanation ì in most cases. People understand that some of the Constitution's ì language is hard to fathom and that the Court's Justices are ì sometimes able to perceive significant facts or to understand ì principles of law that eluded their predecessors and that justify ì departures from existing decisions. However upsetting it may be ì to those most directly affected when one judicially derived rule ì replaces another, the country can accept some correction of error ì without necessarily questioning the legitimacy of the Court. In two circumstances, however, the Court would almost ì certainly fail to receive the benefit of the doubt in overruling ì prior cases. There is, first, a point beyond which frequent ì overruling would overtax the country's belief in the Court's good ì faith. Despite the variety of reasons that may inform and ì justify a decision to overrule, we cannot forget that such a ì decision is usually perceived (and perceived correctly) as, at ì the least, a statement that a prior decision was wrong. There is ì a limit to the amount of error that can plausibly be imputed to ì prior courts. If that limit should be exceeded, disturbance of ì prior rulings would be taken as evidence that justifiable ≡7É3 ìèreexamination of principle had given way to drives for particular ì results in the short term. The legitimacy of the Court would ì fade with the frequency of its vacillation. That first circumstance can be described as hypothetical; ì the second is to the point here and now. Where, in the ì performance of its judicial duties, the Court decides a case in ì such a way as to resolve the sort of intensely divisive contro- ì versy reflected in Roe and those rare, comparable cases, its ì decision has a dimension that the resolution of the normal case ì does not carry. It is the dimension present whenever the Court's ì interpretation of the Constitution calls the contending sides of ì a national controversy to end their national division by ì accepting a common mandate rooted in the Constitution. The Court is not asked to do this very often, having thus ì addressed the Nation only twice in our lifetime, in the decisions ì of Brown and Roe. But when the Court does act in this way, its ì decision requires an equally rare precedential force to counter ì the inevitable efforts to overturn it and to thwart its ì implementation. Some of those efforts may be mere unprincipled ì emotional reactions; others may proceed from principles worthy of ì profound respect. But whatever the premises of opposition may ì be, only the most convincing justification under accepted ì standards of precedent could suffice to demonstrate that a later ì decision overruling the first was anything but a surrender to ì political pressure, and an unjustified repudiation of the ì principle on which the Court staked its authority in the first ì instance. So to overrule under fire in the absence of the most ì compelling reason to reexamine a watershed decision would subvert ì the Court's legitimacy beyond any serious question. Cf. Brown v. Board of Education, 349 U. S. 294, 300 (1955) (Brown II) ( ì [I]t should go without saying that the vitality of th[e] ì constitutional principles [announced in Brown v. Board of ì Education, 347 U. S. 483 (1954),] cannot be allowed to yield ì simply because of disagreement with them). The country's loss of confidence in the judiciary would ì be underscored by an equally certain and equally reasonable ì condemnation for another failing in overruling unnecessarily and ì under pressure. Some cost will be paid by anyone who approves or ì implements a constitutional decision where it is unpopular, or ì who refuses to work to undermine the decision or to force its ì reversal. The price may be criticism or ostracism, or it may be ì violence. An extra price will be paid by those who themselves ì disapprove of the decision's results when viewed outside of ì constitutional terms, but who nevertheless struggle to accept it, ì because they respect the rule of law. To all those who will be ì so tested by following, the Court implicitly undertakes to remain ì steadfast, lest in the end a price be paid for nothing. The ì promise of constancy, once given, binds its maker for as long as ì the power to stand by the decision survives and the understanding ì of the issue has not changed so fundamentally as to render the ì commitment obsolete. From the obligation of this promise this ì Court cannot and should not assume any exemption when duty ≡7É3 ìèrequires it to decide a case in conformance with the ì Constitution. A willing breach of it would be nothing less than ì a breach of faith, and no Court that broke its faith with the ì people could sensibly expect credit for principle in the decision ì by which it did that. It is true that diminished legitimacy may be restored, ì but only slowly. Unlike the political branches, a Court thus ì weakened could not seek to regain its position with a new mandate ì from the voters, and even if the Court could somehow go to the ì polls, the loss of its principled character could not be ì retrieved by the casting of so many votes. Like the character of ì an individual, the legitimacy of the Court must be earned over ì time. So, indeed, must be the character of a Nation of people ì who aspire to live according to the rule of law. Their belief in ì themselves as such a people is not readily separable from their ì understanding of the Court invested with the authority to decide ì their constitutional cases and speak before all others for their ì constitutional ideals. If the Court's legitimacy should be ì undermined, then, so would the country be in its very ability to ì see itself through its constitutional ideals. The Court's ì concern with legitimacy is not for the sake of the Court but for ì the sake of the Nation to which it is responsible. The Court's duty in the present case is clear. In 1973, ì it confronted the already-divisive issue of governmental power to ì limit personal choice to undergo abortion, for which it provided ì a new resolution based on the due process guaranteed by the ì Fourteenth Amendment. Whether or not a new social consensus is ì developing on that issue, its divisiveness is no less today than ì in 1973, and pressure to overrule the decision, like pressure to ì retain it, has grown only more intense. A decision to overrule ì Roe's essential holding under the existing circumstances would ì address error, if error there was, at the cost of both profound ì and unnecessary damage to the Court's legitimacy, and to the ì Nation's commitment to the rule of law. It is therefore ì imperative to adhere to the essence of Roe's original decision, ì and we do so today. &&! IV From what we have said so far it follows that it is a ì constitutional liberty of the woman to have some freedom to ì terminate her pregnancy. We conclude that the basic decision in ì Roe was based on a constitutional analysis which we cannot now ì repudiate. The woman's liberty is not so unlimited, however, ì that from the outset the State cannot show its concern for the ì life of the unborn, and at a later point in fetal development the ì State's interest in life has sufficient force so that the right ì of the woman to terminate the pregnancy can be restricted. That brings us, of course, to the point where much ì criticism has been directed at Roe, a criticism that always ì inheres when the Court draws a specific rule from what in the ì Constitution is but a general standard. We conclude, however, ≡7É3 ìèthat the urgent claims of the woman to retain the ultimate ì control over her destiny and her body, claims implicit in the ì meaning of liberty, require us to perform that function. Liberty ì must not be extinguished for want of a line that is clear. And ì it falls to us to give some real substance to the woman's liberty ì to determine whether to carry her pregnancy to full term. We conclude the line should be drawn at viability, so ì that before that time the woman has a right to choose to ì terminate her pregnancy. We adhere to this principle for two ì reasons. First, as we have said, is the doctrine of stare ì decisis. Any judicial act of line-drawing may seem somewhat ì arbitrary, but Roe was a reasoned statement, elaborated with ì great care. We have twice reaffirmed it in the face of great ì opposition. See Thornburgh v. American College of Obstetricians ì & Gynecologists, 476 U. S., at 759; Akron I, 462 U. S., at ì 419-420. Although we must overrule those parts of Thornburgh and ì Akron I which, in our view, are inconsistent with Roe's statement ì that the State has a legitimate interest in promoting the life or ì potential life of the unborn, see infra, at ___, the central ì premise of those cases represents an unbroken commitment by this ì Court to the essential holding of Roe. It is that premise which ì we reaffirm today. The second reason is that the concept of viability, as we ì noted in Roe, is the time at which there is a realistic ì possibility of maintaining and nourishing a life outside the ì womb, so that the independent existence of the second life can in ì reason and all fairness be the object of state protection that ì now overrides the rights of the woman. See Roe v. Wade, 410 U. ì S., at 163. Consistent with other constitutional norms, ì legislatures may draw lines which appear arbitrary without the ì necessity of offering a justification. But courts may not. We ì must justify the lines we draw. And there is no line other than ì viability which is more workable. To be sure, as we have said, ì there may be some medical developments that affect the precise ì point of viability, see supra, at ___, but this is an imprecision ì within tolerable limits given that the medical community and all ì those who must apply its discoveries will continue to explore the ì matter. The viability line also has, as a practical matter, an ì element of fairness. In some broad sense it might be said that a ì woman who fails to act before viability has consented to the ì State's intervention on behalf of the developing child. The woman's right to terminate her pregnancy before ì viability is the most central principle of Roe v. Wade. It is a ì rule of law and a component of liberty we cannot renounce. On the other side of the equation is the interest of the ì State in the protection of potential life. The Roe Court ì recognized the State's important and legitimate interest in ì protecting the potentiality of human life. Roe, supra, at 162. ì The weight to be given this state interest, not the strength of ì the woman's interest, was the difficult question faced in Roe. ì We do not need to say whether each of us, had we been Members of ≡7É3 ìèthe Court when the valuation of the State inter- est came before ì it as an original matter, would have concluded, as the Roe Court ì did, that its weight is insufficient to justify a ban on abor- ì tions prior to viability even when it is subject to certain ì exceptions. The matter is not before us in the first instance, ì and coming as it does after nearly 20 years of litigation in ì Roe's wake we are satisfied that the immediate question is not ì the soundness of Roe's resolution of the issue, but the ì precedential force that must be accorded to its holding. And we ì have concluded that the essential holding of Roe should be ì reaffirmed. Yet it must be remembered that Roe v. Wade speaks with ì clarity in establishing not only the woman's liberty but also the ì State's important and legitimate interest in potential life. ì Roe, supra, at 163. That portion of the decision in Roe has been ì given too little acknowledgement and implementation by the Court ì in its subsequent cases. Those cases decided that any regulation ì touching upon the abortion decision must survive strict scrutiny, ì to be sustained only if drawn in narrow terms to further a ì compelling state interest. See, e.g., Akron I, supra, at 427. ì Not all of the cases decided under that formulation can be ì reconciled with the holding in Roe itself that the State has ì legitimate interests in the health of the woman and in protecting ì the potential life within her. In resolving this tension, we ì choose to rely upon Roe, as against the later cases. Roe established a trimester framework to govern abortion ì regulations. Under this elaborate but rigid construct, almost no ì regulation at all is permitted during the first trimester of ì pregnancy; regulations designed to protect the woman's health, ì but not to further the State's interest inpotential life, are ì permitted during the second trimester; and during the third ì trimester, when the fetus is viable, prohibitions are permitted ì provided the life or health of the mother is not at stake. Roe ì v. Wade, supra, at 163-166. Most of our cases since Roe have ì involved the application of rules derived from the trimester ì framework. See, e.g., Thornburgh v. American College of ì Obstetricians and Gynecologists, supra; Akron I, supra. The trimester framework no doubt was erected to ensure ì that the woman's right to choose not become so subordinate to the ì State's interest in promoting fetal life that her choice exists ì in theory but not in fact. We do not agree, however, that the ì trimester approach is necessary to accomplish this objective. A ì framework of this rigidity was unnecessary and in its later ì interpretation sometimes contradicted the State's permissible ì exercise of its powers. Though the woman has a right to choose to terminate or ì continue her pregnancy before viability, it does not at all ì follow that the State is prohibited from taking steps to ensure ì that this choice is thoughtful and informed. Even in the ì earliest stages of pregnancy, the State may enact rules and ì regulations designed to encourage her to know that there are ≡7É3 ìèphilosophic and social arguments of great weight that can be ì brought to bear in favor of continuing the pregnancy to full term ì and that there are procedures and institutions to allow adoption ì of unwanted children as well as a certain degree of state ì assistance if the mother chooses to raise the child herself. ì `[T]he Constitution does not forbid a State or city, pursuant to ì democratic processes, from expressing a preference for normal ì childbirth.' Webster v. Reproductive Health Services, 492 U. S., ì at 511 (opinion of the Court) (quoting Poelker v. Doe, 432 U. S. ì 519, 521 (1977)). It follows that States are free to enact laws ì to provide a reasonable framework for a woman to make a decision ì that has such profound and lasting meaning. This, too, we find ì consistent with Roe's central premises, and indeed the inevitable ì consequence of our holding that the State has an interest in ì protecting the life of the unborn. We reject the trimester framework, which we do not ì consider to be part of the essential holding of Roe. See Webster ì v. Reproductive Health Services, supra, at 518 (opinion of ì Rehnquist, C. J.); id., at 529 (O'Connor, J., concurring in part ì and concurring in judgment) (describing the trimester framework ì as problematic). Measures aimed at ensuring that a woman's ì choice contemplates the consequences for the fetus do not ì necessarily interfere with the right recognized in Roe, although ì those measures have been found to be inconsistent with the rigid ì trimester framework announced in that case. A logical reading of ì the central holding in Roe itself, and a necessary reconciliation ì of the liberty of the woman and the interest of the State in ì promoting prenatal life, require, in our view, that we abandon ì the trimes- ter framework as a rigid prohibition on all ì previability regulation aimed at the protection of fetal life. ì The trimester framework suffers from these basic flaws: in its ì formulation it misconceives the nature of the pregnant woman's ì interest; and in practice it undervalues the State's interest in ì potential life, as recognized in Roe. As our jurisprudence ì relating to all liberties save perhaps abortion has recognized, ì not every law which makes a right more difficult to exercise is, ì ipso facto, an infringement of that right. An example clarifies ì the point. We have held that not every ballot access limitation ì amounts to an infringement of the right to vote. Rather, the ì States are granted substantial flexibility in establishing the ì framework within which voters choose the candidates for whom they ì wish to vote. Anderson v. Celebrezze, 460 U. S. 780, 788 (1983); ì Norman v. Reed, 502 U. S. ___ (1992). The abortion right is similar. Numerous forms of state ì regulation might have the incidental effect of increasing the ì cost or decreasing the availability of medical care, whether for ì abortion or any other medical procedure. The fact that a law ì which serves a valid purpose, one not designed to strike at the ì right itself, has the incidental effect of making it more ì difficult or more expensive to procure an abortion cannot be ì enough to invalidate it. Only where state regulation imposes an ì undue burden on a woman's ability to make this decision does the ì power of the State reach into the heart of the liberty protected ≡7É3 ìèby the Due Process Clause. See Hodgson v. Minnesota, 497 U.S. ì 417, 458-459 (1990) (O'Connor, J., concurring in part and ì concurring in judgment in part); Ohio v. Akron Center for ì Reproductive Health, 497 U. S. 502, --- (1990) (Akron II) ì (opinion of Kennedy, J.) Webster v. Reproductive Health Services, ì supra, at 530 (O'Connor, J., concurring in part and concurring in ì judgment); Thornburgh v. American College of Obstetricians and ì Gynecologists, 476 U. S., at 828 (O'Connor, J., dissenting); ì Simopoulos v. Virginia, 462 U. S. 506, 520 (1983) (O'Connor, J., ì concurring in part and concurring in judgment); Planned ì Parenthood Assn. of Kansas City v. Ashcroft, 462 U. S. 476, 505 ì (1983) (O'Connor, J., concurring in judgment in part and ì dissenting in part); Akron I, 462 U.S., at 464 (O'Connor, J., ì joined by White and Rehnquist, JJ., dissenting); Bellotti v. ì Baird, 428 U.S. 132, 147 (1976) (Bellotti I). /* This statement tends to avoid the fact that brain surgery, ì which is life threatening and far more chancy that an abortion ì does not have: (1) Spousal notification requirements; (2) 24 hour cooling off periods; (3) special laws requiring information for the patient to be ì presented, etc. Immediately after Roe (and as the opinion will state in the next ì sections) many states required extraordinary and burdensome ì requirements to make abortions legal but the Court struck this ì down. This new "re-affirmance" of the central principles of Roe ì is thus actually a significant retreat, allowing a great deal ì more "back door" regulation of abortions within the time fram ì when Roe provides for abortions on demand. */ For the most part, the Court's early abortion cases ì adhered to this view. In Maher v. Roe, 432 U.S. 464, 473-474 ì (1977), the Court explained: Roe did not declare an unqualified ì `constitutional right to an abortion,' as the District Court ì seemed to think. Rather, the right protects the woman from ì unduly burdensome interference with her freedom to decide whether ì to terminate her pregnancy. See also Doe v. Bolton, 410 U. S. ì 179, 198 (1973) ( [T]he interposition of the hospital abortion ì committee is unduly restrictive of the patient's rights); ì Bellotti I, supra, at 147 (State may not impose undue burdens ì upon a minor capable of giving an informed consent); Harris v. ì McRae, 448 U. S. 297, 314 (1980) (citing Maher, supra). Cf. ì Carey v. Population Services International, 431 U. S., at 688 ( ì [T]he same test must be applied to state regulations that burden ì an individual's right to decide to prevent conception or ì terminate pregnancy by substantially limiting access to the means ì of effectuating that decision as is applied to state statutes ì that prohibit the decision entirely). These considerations of the nature of the abortion right ì illustrate that it is an overstatement to describe it as a right ì to decide whether to have an abortion without interference from ≡7É3 ìèthe State, Planned Parenthood of Central Mo. v. Danforth, 428 U. ì S. 52, 61 (1976). All abortion regulations interfere to some ì degree with a woman's ability to decide whether to terminate her ì pregnancy. It is, as a consequence, not surprising that despite ì the protestations contained in the original Roe opinion to the ì effect that the Court was not recognizing an absolute right, 410 ì U. S., at 154-155, the Court's experience applying the trimester ì framework has led to the striking down of some abortion ì regulations which in no real sense deprived women of the ultimate ì decision. Those decisions went too far because the right ì recognized by Roe is a right to be free from unwarranted ì governmental intrusion into matters so fundamentally affecting a ì person as the deci sion whether to bear or beget a child. ì Eisenstadt v. Baird, 405 U. S., at 453. Not all governmental ì intrusion is of necessity unwarranted; and that brings us to the ì other basic flaw in the trimester framework: even in Roe's terms, ì in practice it undervalues the State's interest in the potential ì life within the woman. Roe v. Wade was express in its recognition of the State's ì important and legitimate interest[s] in preserving and protecting ì the health of the pregnant woman [and] in protecting the ì potentiali- ty of human life. 410 U. S., at 162. The trimester ì framework, however, does not fulfill Roe's own promise that the ì State has an interest in protecting fetal life or potential life. ì Roe began the contradiction by using the trimester framework to ì forbid any regulation of abortion designed to advance that ì interest before viability. Id., at 163. Before viability, Roe ì and subsequent cases treat all governmental attempts to influence ì a woman's decision on behalf of the potential life within her as ì unwarranted. This treatment is, in our judgment, incompatible ì with the recognition that there is a substantial state interest ì in potential life throughout pregnancy. Cf. Webster, 492 U. S., ì at 519 (opinion of Rehnquist, C. J.); Akron I, supra, at 461 ì (O'Connor, J., dissenting). The very notion that the State has a substantial interest ì in potential life leads to the conclusion that not all ì regulations must be deemed unwarranted. Not all burdens on the ì right to decide whether to terminate a pregnancy will be undue. ì In our view, the undue burden standard is the appropriate means ì of reconciling the State's interest with the woman's ì constitutionally protected liberty. The concept of an undue burden has been utilized by the ì Court as well as individual members of the Court, including two ì of us, in ways that could be considered inconsistent. See, e.g., ì Hodgson v. Minnesota, 497 U. S., at --- (O'Connor, J., ì concurring in part and concurring in judgment); Akron II, 497 U. ì S., at --- (opinion of Kennedy, J.); Thornburgh v. American ì College of Obstetricians and Gynecologists, 476 U. S., at 828-829 ì (O'Connor, J., dissenting); Akron I, supra, at 461-466 (O'Connor, ì J., dissenting); Harris v. McRae, supra, at 314; Maher v. Roe, ì supra, at 473; Beal v. Doe, 432 U. S. 438, 446 (1977); Bellotti ì I, supra, at 147. Because we set forth a standard of general ≡7É3 ìèapplication to which we intend to adhere, it is important to ì clarify what is meant by an undue burden. A finding of an undue burden is a shorthand for the ì conclusion that a state regulation has the purpose or effect of ì placing a substantial obstacle in the path of a woman seeking an ì abortion of a nonviable fetus. A statute with this purpose is ì invalid because the means chosen by the State to further the ì interest in potential life must be calculated to inform the ì woman's free choice, not hinder it. And a statute which, while ì furthering the interest in potential life or some other valid ì state interest, has the effect of placing a substantial obstacle ì in the path of a woman's choice cannot be considered a ì permissible means of serving its legitimate ends. To the extent ì that the opinions of the Court or of individual Justices use the ì undue burden standard in a manner that is inconsistent with this ì analysis, we set out what in our view should be the controlling ì standard. Cf. McCleskey v. Zant, 499 U. S. ---, --- (1991) (slip op., at 20) (attempting to define the doctrine of ì abuse of the writ with more precision after acknowledging tension ì among earlier cases). In our considered judgment, an undue ì burden is an unconstitutional burden. See Akron II, supra, at ì --- (opinion of Kennedy, J.). Understood another way, we answer ì the question, left open in previous opinions discussing the undue ì burden formulation, whether a law designed to further the State's ì interest in fetal life which imposes an undue burden on the ì woman's decision before fetal viability could be constitutional. ì See, e.g., Akron I, supra, at 462-463 (O'Connor, J., dissenting). ì The answer is no. Some guiding principles should emerge. What is at stake ì is the woman's right to make the ultimate decision, not a right ì to be insulated from all others in doing so. Regulations which ì do no more than create a structural mechanism by which the State, ì or the parent or guardian of a minor, may express profound ì respect for the life of the unborn are permitted, if they are not ì a substan- tial obstacle to the woman's exercise of the right to ì choose. See infra, at ___-___ (addressing Pennsylvania's ì parental consent requirement). Unless it has that effect on her ì right of choice, a state measure designed to persuade her to ì choose childbirth over abortion will be upheld if reasonably ì related to that goal. Regulations designed to foster the health ì of a woman seeking an abortion are valid if they do not ì constitute an undue burden. Even when jurists reason from shared premises, some ì disagreement is inevitable. Compare Hodgson, 497 U. S., at ì ------- (opinion of Kennedy, J.) with id., at ------- (O'Connor, ì J., concurring in part and concurring in judgment in part). That ì is to be expected in the application of any legal standard which ì must accommodate life's complexity. We do not expect it to be ì otherwise with respect to the undue burden standard. We give ì this summary: (a) To protect the central right recognized by Roe v. ≡7É3 ìèWade while at the same time accommodating the State's profound ì interest in potential life, we will employ the undue burden ì analysis as explained in this opinion. An undue burden exists, ì and therefore a provision of law is invalid, if its purpose or ì effect is to place a substantial obstacle in the path of a woman ì seeking an abortion before the fetus attains viability. (b) We reject the rigid trimester framework of Roe v. ì Wade. To promote the State's profound interest in potential ì life, throughout pregnancy the State may take measures to ensure ì that the woman's choice is informed, and measures designed to ì advance this interest will not be invalidated as long as their ì purpose is to persuade the woman to choose childbirth over ì abortion. These measures must not be an undue burden on the ì right. (c) As with any medical procedure, the State may enact ì regulations to further the health or safety of a woman seeking an ì abortion. Unnecessary health regulations that have the purpose ì or effect of presenting a substantial obstacle to a woman seeking ì an abortion impose an undue burden on the right. /* This begs the question. If critical brain surgery is not ì singled out for special restriction, then the question becomes ì one of intepreting intent. Placing even simple recordkeeping ì requirements on operations or seemingly innocuous waiting periods ì may not seem greatly burdensome, but do in fact appear to be ì quite difficult to reconcile with the fact that JUST abortion is ì chosen for such regulations. */ (d) Our adoption of the undue burden analysis does not ì disturb the central holding of Roe v. Wade, and we reaffirm that ì holding. Regardless of whether exceptions are made for ì particular circumstances, a State may not prohibit any woman from ì making the ultimate decision to terminate her pregnancy before ì viability. (e) We also reaffirm Roe's holding that subsequent to ì viability, the State in promoting its interest in the ì potentiality of human life may, if it chooses, regulate, and even ì proscribe, abortion except where it is necessary, in appropriate ì medical judgment, for the preservation of the life or health of ì the mother. Roe v. Wade, 410 U. S., at 164-165. These principles control our assessment of the ì Pennsylvania statute, and we now turn to the issue of the ì validity of its challenged provisions. ÇÇ! V The Court of Appeals applied what it believed to be the ì undue burden standard and upheld each of the provisions except ì for the husband notification requirement. We agree generally ì with this conclusion, but refine the undue burden analysis in ì accordance with the principles articulated above. We now ≡7É3 ìèconsider the separate statutory sections at issue. ÇÇ! A Because it is central to the operation of various other ì requirements, we begin with the statute's definition of medical ì emergency. Under the statute, a medical emergency is .lm 1.00" há [t]hat condition which, on the basis of the physician's ì á good faith clinical judgment, so complicates the ì á medical condition of a pregnant woman as to necessitate ì á the immediate abortion of her pregnancy to avert her ì á death or for which a delay will create serious risk of ì á substantial and irreversible impairment of a major ì á bodily function. 18 Pa. Cons. Stat. (1990). 3203. .lm 0.00" Petitioners argue that the definition is too narrow, contending ì that it forecloses the possibility of an immediate abortion ì despite some significant health risks. If the contention were ì correct, we would be required to invalidate the restrictive ì operation of the provision, for the essential holding of Roe ì forbids a State from interfering with a woman's choice to undergo ì an abortion procedure if continuing her pregnancy would ì constitute a threat to her health. 410 U. S., at 164. See also ì Harris v. McRae, 448 U. S., at 316. The District Court found that there were three serious ì conditions which would not be covered by the statute: ì preeclampsia, inevitable abortion, and premature ruptured ì membrane. 744 F. Supp., at 1378. Yet, as the Court of Appeals ì observed, 947 F.2d, at 700-701, it is undisputed that under some ì circumstances each of these conditions could lead to an illness ì with substantial and irreversible consequences. While the ì definition could be interpreted in an unconstitutional manner, ì the Court of Appeals construed the phrase serious risk to include ì those circumstances. Id., at 701. It stated: we read the ì medical emergency exception as intended by the Pennsylvania ì legislature to assure that compliance with its abortion ì regulations would not in any way pose a significant threat to the ì life or health of a woman. Ibid. As we said in Brockett v. ì Spokane Arcades, Inc., 472 U. S. 491, 499-500 (1985): ì Normally, . . . we defer to the construction of a state statute ì given it by the lower federal courts. Indeed, we have said that ì we will defer to lower court interpretations of state law unless ì they amount to plain error. Palmer v. Hoffman, 318 U. S. 109, ì 118 (1943). This `reflect[s] our belief that district courts and ì courts of appeals are better schooled in and more able to ì interpret the laws of their respective States.' Frisby v. ì Schultz, 487 U. S. 474, 482 (1988) (citation omitted). We ì adhere to that course today, and conclude that, as construed by ì the Court of Appeals, the medical emergency definition imposes no ì undue burden on a woman's abortion right. /* The "we will assume that they will re-write the statute ≡7É3 ìèthrough interpreting it" rule in which an invalid regulation is ì upheld due to, in this case, hoped constructions of the law. Or, ì it is a notice to the state that if it wants the law to be ì enforceable that the courts must narrow the scope of what the ì legislature intended. */ B We next consider the informed consent requirement. 18 ì Pa. Cons. Stat. Ann. 3205. Except in a medical emergency, the ì statute requires that at least 24 hours before performing an ì abortion a physician inform the woman of the nature of the ì procedure, the health risks of the abortion and of childbirth, ì and the probable gestational age of the unborn child. The ì physician or a qualified nonphysician must inform the woman of ì the availability of printed materials published by the State ì describing the fetus and providing information about medical ì assistance for childbirth, information about child support from ì the father, and a list of agencies which provide adoption and ì other services as alternatives to abortion. An abortion may not ì be performed unless the woman certifies in writing that she has ì been informed of the availability of these printed materials and ì has been provided them if she chooses to view them. Our prior decisions establish that as with any medical ì procedure, the State may require a woman to give her written ì informed consent to an abortion. See Planned Parenthood of ì Central Mo. v. Danforth, 428 U. S., at 67. In this respect, the ì statute is unexceptional. Petitioners challenge the statute's ì definition of informed consent because it includes the provision ì of specific information by the doctor and the mandatory 24-hour ì waiting period. The conclusions reached by a majority of the ì Justices in the separate opinions filed today and the undue ì burden standard adopted in this opinion require us to overrule in ì part some of the Court's past decisions, decisions driven by the ì trimester framework's prohibition of all previability regulations ì designed to further the State's interest in fetal life.