Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/ussct/abort5.asc

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    The Chief Justice's narrow conception of individual
liberty and stare decisis leads him to propose the same standard
of review proposed by the plurality in Webster.  States may
regulate abortion procedures in ways rationally related to a
legitimate state interest.  Williamson v. Lee Optical Co., 348 U.
S. 483, 491 (1955); cf. Stanley v.  Illinois, 405 U. S. 645,
651-653 (1972).  Post, at 24.    The Chief Justice then further
weakens the test by providing an insurmountable requirement for
facial challenges:  petitioners must `show that no set of
circumstances exists under which the [provision] would be valid.'
Post, at 30, quoting Ohio v. Akron Center for Reproductive
Health, 497 U. S., at 514.  In short, in his view, petitioners
must prove that the statute cannot constitutionally be applied to
anyone.  Finally, in applying his standard to the
spousal-notification provision, The Chief Justice contends that
the record lacks any hard evidence to support the joint opinion's
contention that a large fraction of women who prefer not to
notify their husbands involve situations of battered women and
unreported spousal assault.  Post, at 31, n. 2.  Yet throughout
the explication of his standard, The Chief Justice never explains
what hard evidence is, how large a fraction is required, or how a
battered women is supposed to pursue an as applied challenge.

    Under his standard, States can ban abortion if that ban
is rationally related to a legitimate state interest "a standard
which the United States calls deferential, but not toothless."
Yet when pressed at oral argument to describe the teeth, the best
protection that the Solicitor General could offer to women was
that a prohibition, enforced by criminal penalties, with no
exception for the life of the mother, could raise very serious
questions.  Tr. of Oral Arg. 49.  Perhaps, the Solicitor General
offered, the failure to include an exemption for the life of the
mother would be arbitrary and capricious.  Id., at 49.  If, as
The Chief Justice contends, the undue burden test is made out of
whole cloth, the so-called arbitrary and capricious limit is the
Solicitor General's new clothes.

    Even if it is somehow irrational for a State to require a
woman to risk her life for her child, what protection is offered
for women who become pregnant through rape or incest?  Is there
anything arbitrary or capricious about a State's prohibiting the
sins of the father from being visited upon his offspring?

    But, we are reassured, there is always the protection of
the democratic process.  While there is much to be praised about
our democracy, our country since its founding has recognized that
there are certain fundamental liberties that are not to be left
to the whims of an election.  A woman's right to reproductive
choice is one of those fundamental liberties.  Accordingly, that
liberty need not seek refuge at the ballot box.

IV

    In one sense, the Court's approach is worlds apart from
that of The Chief Justice and Justice Scalia.  And yet, in

another sense, the distance between the two approaches is short
"the distance is but a single vote."

    I am 83 years old.  I cannot remain on this Court
forever, and when I do step down, the confirmation process for my
successor well may focus on the issue before us today.  That, I
regret, may be exactly where the choice between the two worlds
will be made.


    Chief Justice Rehnquist, with whom Justice White, Justice
Scalia, and Justice Thomas join, - concurring in the judgment in
part and dissenting in part.

    The joint opinion, following its newly-minted variation
on stare decisis, retains the outer shell of Roe v. Wade, 410 U.
S. 113 (1973), but beats a wholesale retreat from the substance
of that case.  We believe that Roe was wrongly decided, and that
it can and should be overruled consistently with our traditional
approach to stare decisis in constitutional cases.  We would
adopt the approach of the plurality in Webster v. Reproductive
Health Services, 492 U. S. 490 (1989), and uphold the challenged
provisions of the Pennsylvania statute in their entirety.

I

    In ruling on this case below, the Court of Ap- peals for
the Third Circuit first observed that this appeal does not
directly implicate Roe; this case involves the regulation of
abortions rather than their outright prohibition.  947 F. 2d 682,
687 (1991).  Accordingly, the court directed its attention to the
question of the standard of review for abortion regulations.  In
attempting to settle on the correct standard, however, the court
confronted the confused state of this Court's abortion
jurisprudence.  After considering the several opinions in Webster
v. Reproductive Health Services, supra, and Hodgson v. Minnesota,
497 U. S. 417 (1990), the Court of Appeals concluded that Justice
O'Connor's undue burden test was controlling, as that was the
narrowest ground on which we had upheld recent abortion
regulations.  947 F. 2d, at 693-697 ( `When a fragmented court
decides a case and no single rationale explaining the result
enjoys the assent of five Justices, the holding of the Court may
be viewed as that position taken by those Members who concurred
in the judgments on the narrowest grounds' (quoting Marks v.
United States, 430 U. S. 188, 193 (1977) (internal quotation
marks omitted)).  Applying this standard, the Court of Appeals
upheld all of the challenged regulations except the one requiring
a woman to notify her spouse of an intended abortion.

    In arguing that this Court should invalidate each of the
provisions at issue, petitioners insist that we reaffirm our
decision in Roe v.  Wade, supra, in which we held
unconstitutional a Texas statute making it a crime to procure an
abortion except to save the life of the mother.  We agree with
the Court of Appeals that our decision in Roe is not directly
implicated by the Pennsylvania statute, which does not prohibit,
but simply regulates, abortion.  But, as the Court of Appeals
found, the state of our post-Roe decisional law dealing with the
regulation of abortion is confusing and uncertain, indicating
that a reexamination of that line of cases is in order.
Unfortunately for those who must apply this Court's decisions,
the reexamination undertaken today leaves the Court no less
divided than beforehand.  Although they reject the trimester
framework that formed the underpinning of Roe, Justices O'Connor,
Kennedy, and Souter adopt a revised undue burden standard to
analyze the challenged regulations.  We conclude, however, that
such an outcome is an unjustified constitutional compromise, one
which leaves the Court in a position to closely scrutinize all
types of abortion regulations despite the fact that it lacks the
power to do so under the Constitution.


    In Roe, the Court opined that the State does have an
important and legitimate interest in preserving and protecting
the health of the pregnant woman, . . . and that it has still
another important and legitimate interest in protecting the
potentiality of human life.  410 U. S., at 162 (emphasis
omitted).  In the companion case of Doe v. Bolton, 410 U. S. 179
(1973), the Court referred to its conclusion in Roe that a
pregnant woman does not have an absolute constitutional right to
an abortion on her demand.  410 U. S., at 189.  But while the
language and holdings of these cases appeared to leave States
free to regulate abortion procedures in a variety of ways, later
decisions based on them have found considerably less latitude for
such regulations than might have been expected.

    For example, after Roe, many States have sought to
protect their young citizens by requiring that a minor seeking an
abortion involve her parents in the decision.  Some States have
simply required notification of the parents, while others have
required a minor to obtain the consent of her parents.  In a
number of decisions, however, the Court has substantially limited
the States in their ability to impose such requirements.  With
regard to parental notice requirements, we initially held that a
State could require a minor to notify her parents before
proceeding with an abortion.  H. L. v. Matheson, 450 U. S. 398,
407-410 (1981).  Recently, however, we indicated that a State's
ability to impose a notice requirement actually depends on
whether it requires notice of one or both parents.  We concluded
that although the Constitution might allow a State to demand that
notice be given to one parent prior to an abortion, it may not
require that similar notice be given to two parents, unless the
State incorporates a judicial bypass procedure in that two-
parent requirement.  Hodgson v. Minnesota, supra.

    We have treated parental consent provisions even more
harshly.  Three years after Roe, we invalidated a Missouri
regulation requiring that an unmarried woman under the age of 18
obtain the consent of one her parents before proceeding with an
abortion.  We held that our abortion jurisprudence prohibited the
State from imposing such a blanket provision . . . requiring the
consent of a parent.  Planned Parenthood of Central Mo. v.
Danforth, 428 U. S. 52, 74 (1976).  In Bellotti v.  Baird, 443 U.
S. 622 (1979), the Court struck down a similar Massachusetts
parental consent statute.  A majority of the Court indicated,
however, that a State could constitutionally require parental
consent, if it alternatively allowed a pregnant minor to obtain
an abortion without parental consent by showing either that she
was mature enough to make her own decision, or that the abortion
would be in her best interests.  See id., at 643-644 (plurality
opinion); id., at 656-657 (White, J., dissenting).  In light of
Bellotti, we have upheld one parental consent regulation which
incorporated a judicial bypass option we viewed as sufficient,
see Planned Parenthood Assn. of Kansas City, Mo., Inc. v.
Ashcroft, 462 U. S. 476 (1983), but have invalidated another
because of our belief that the judicial procedure did not satisfy
the dictates of Bellotti.  See Akron v.  Akron Center for
Reproductive Health, Inc., 462 U.S. 416, 439-442 (1983).  We have
never had occasion, as we have in the parental notice context, to
further parse our parental consent jurisprudence into one-parent
and two-parent components.

    In Roe, the Court observed that certain States recognized
the right of the father to participate in the abortion decision
in certain circumstances.  Because neither Roe nor Doe involved
the assertion of any paternal right, the Court expressly stated
that the case did not disturb the validity of regulations that
protected such a right.  Roe v.  Wade, 410 U. S., at 165, n. 67.
But three years later, in Danforth, the Court extended its
abortion jurisprudence and held that a State could not require
that a woman obtain the consent of her spouse before proceeding
with an abortion.  Planned Parenthood of Central Mo. v. Danforth,
428 U.S., at 69-71.

    States have also regularly tried to ensure that a woman's
decision to have an abortion is an informed and well-considered
one.  In Danforth, we upheld a requirement that a woman sign a
consent form prior to her abortion, and observed that it is
desirable and imperative that [the decision] be made with full
knowledge of its nature and conse- quences.  Id., at 67.  Since
that case, however, we have twice invalidated state statutes
designed to impart such knowledge to a woman seeking an abortion.
In Akron, we held unconstitutional a regulation requiring a
physician to inform a woman seeking an abortion of the status of
her pregnancy, the development of her fetus, the date of possible
viability, the complications that could result from an abortion,
and the availability of agencies providing assistance and
information with respect to adoption and childbirth.  Akron v.
Akron Center for Reproductive Health, supra, at 442-445.  More
recently, in Thornburgh v. American College of Obstetricians and
Gynecologists, 476  U.S. 747 (1986), we struck down a more
limited Pennsylvania regulation requiring that a woman be
informed of the risks associated with the abortion procedure and
the assistance available to her if she decided to proceed with
her pregnancy, because we saw the compelled information as the
antithesis of informed consent.  Id., at 764.  Even when a State
has sought only to provide information that, in our view, was
consistent with the Roe framework, we concluded that the State
could not require that a physician furnish the information, but
instead had to alternatively allow nonphysician counselors to
provide it.  Akron v. Akron Center for Reproductive Health, 462
U.S., at 448-449.  In Akron as well, we went further and held
that a State may not require a physician to wait 24 hours to
perform an abortion after receiving the consent of a woman.
Although the State sought to ensure that the woman's decision was
carefully considered, the Court concluded that the Constitution
forbade the State from imposing any sort of delay.  Id., at
449-451.

    We have not allowed States much leeway to regulate even
the actual abortion procedure.  Although a State can require that
second-trimester abortions be performed in outpatient clinics,
see Simopoulos v. Virginia, 462 U. S. 506 (1983), we concluded in
Akron and Ashcroft that a State could not require that such
abortions be performed only in hospitals.  See Akron v. Akron
Center for Reproductive Health, supra, at 437-439; Planned
Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, supra, at
481-482.  Despite the fact that Roe expressly allowed regulation
after the first trimester in furtherance of maternal health,
`present medical knowledge,' in our view, could not justify such
a hospitalization requirement under the trimester framework.
Akron v. Akron Center for Reproductive Health, supra, at 437
(quoting Roe v. Wade, supra, at 163).  And in Danforth, the Court
held that Missouri could not outlaw the saline amniocentesis
method of abortion, concluding that the Missouri Legislature had
failed to appreciate and to consider several significant facts in
making its decision.  428 U.S., at 77.

    Although Roe allowed state regulation after the point of
viability to protect the potential life of the fetus, the Court
subsequently rejected attempts to regulate in this manner.  In
Colautti v. Franklin, 439 U. S. 379 (1979), the Court struck down
a statute that governed the determination of viability.  Id., at
390-397.  In the process, we made clear that the trimester
framework incorporated only one definition of viability "ours" as
we forbade States from deciding that a certain objective
indicator"``be it weeks of gestation or fetal weight or any other
single factor"should govern the definition of viability.  Id., at
389.  In that same case, we also invalidated a regulation
requiring a physician to use the abortion technique offering the
best chance for fetal survival when performing postviability
abortions.  See id., at 397-401; see also Thornburgh v. American
Col- lege of Obstetricians and Gynecologists, supra, at 768-769
(invalidating a similar regulation).  In Thornburgh, the Court
struck down Pennsylvania's requirement that a second physician be
present at postviability abortions to help preserve the health of
the unborn child, on the ground that it did not incorporate a
sufficient medical emergency exception.  Id., at 769-771.
Regulations governing the treatment of aborted fetuses have met a
similar fate.  In Akron, we invalidated a provision requiring
physicians performing abortions to insure that the remains of the
unborn child are disposed of in a humane and sanitary manner.  46
U.S., at 451 (internal quotation marks omitted).  Dissents in
these cases expressed the view that the Court was expanding upon
Roe in imposing ever greater restrictions on the States.  See
Thornbu- rgh v. American College of Obstetricians and
Gynecologists, 476 U. S., at 783 (Burger, C. J., dissenting) (
The extent to which the Court has departed from the limitations
expressed in Roe is readily apparent); id., at 814 (White, J.,
dissenting) ( [T]he majority indiscriminately strikes down
statutory provisions that in no way contravene the right
recognized in Roe).  And, when confronted with State regulations
of this type in past years, the Court has become increasingly
more divided: the three most recent abortion cases have not
commanded a Court opinion.  See Ohio v.  Akron Center for
Reproductive Health, 497 U. S. 502 (1990); Hodgson v. Minnesota,
497 U. S. 417 (1990); Webster v. Reproductive Health Services,
492 U. S.  490 (1989).

    The task of the Court of Appeals in the present case was
obviously complicated by this confusion and uncertainty.
Following Marks v. United States, 430 U. S. 188 (1977), it
concluded that in light of Webster and Hodgson, the strict
scrutiny standard enunciated in Roe was no longer applicable, and
that the undue burden standard adopted by Justice O'Connor was
the governing principle.  This state of confusion and
disagreement warrants reexamination of the fundamental right
accorded to a woman's decision to abort a fetus in Roe, with its
concomitant requirement that any state regulation of abortion
survive strict scrutiny.  See Payne v. Tennessee, 501 U. S. ---,
------- (1991) (slip op., at 17-20) (observing that reexamination
of constitutional decisions is appropriate when those decisions
have generated uncertainty and failed to provide clear guidance,
because correction through legislative action is practically
impossible (internal quotation marks omitted)); Garcia v. San
Antonio Metropolitan Transit Authority, 469 U. S. 528, 546-547,
557 (1985).

    We have held that a liberty interest protected under the
Due Process Clause of the Fourteenth Amendment will be deemed
fundamental if it is implicit in the concept of ordered liberty.
Palko v. Connecticut, 302 U. S. 319, 325 (1937).  Three years
earlier, in Snyder v. Massachusetts, 291 U. S. 97 (1934), we
referred to a principle of justice so rooted in the traditions
and conscience of our people as to be ranked as fundamental.
Id., at 105; see also Michael H. v. Gerald D., 491 U.S. 110, 122
(1989) (plurality opinion) (citing the language from Snyder).
These expressions are admittedly not precise, but our decisions
implementing this notion of fundamental rights do not afford any
more elaborate basis on which to base such a classification.

    In construing the phrase liberty incorporated in the Due
Process Clause of the Fourteenth Amendment, we have recognized
that its meaning extends beyond freedom from physical restraint.
In Pierce v. Society of Sisters, 268 U. S. 510 (1925), we held
that it included a parent's right to send a child to private
school; in Meyer v. Nebraska, 262 U.S. 390 (1923), we held that
it included a right to teach a foreign language in a parochial
school.  Building on these cases, we have held that that the term
liberty includes a right to marry, Loving v. Virginia, 388 U. S.
1 (1967); a right to procreate, Skinner v. Oklahoma ex rel.
Williamson, 316 U. S. 535 (1942); and a right to use
contraceptives.  Griswold v. Connecticut, 381 U. S. 479 (1965);
Eisenstadt v. Baird, 405 U. S. 438 (1972).  But a reading of
these opinions makes clear that they do not endorse any
all-encompassing right of privacy.

    In Roe v. Wade, the Court recognized a guarantee of
personal privacy which is broad enough to encompass a woman's
decision whether or not to terminate her pregnancy.  410 U. S.,
at 152-153.  We are now of the view that, in terming this right
fundamental, the Court in Roe read the earlier opinions upon
which it based its decision much too broadly.  Unlike marriage,
procreation and contra- ception, abortion involves the purposeful
termi- nation of potential life. Harris v. McRae, 448 U. S.  297,
325 (1980).  The abortion decision must therefore be recognized
as sui generis, different in kind from the others that the Court
has protected under the rubric of personal or family privacy and
autonomy.  Thornburgh v. American College of Obstetricians and
Gynecologists, supra, at 792 (White, J., dissenting).  One cannot
ignore the fact that a woman is not isolated in her pregnancy,
and that the decision to abort necessarily involves the
destruction of a fetus.  See Michael H. v. Gerald D., supra, at
124, n. 4 (To look at the act which is assertedly the subject of
a liberty interest in isolation from its effect upon other people
[is] like inquiring whether there is a liberty interest in firing
a gun where the case at hand happens to involve its discharge
into another person's body).

    Nor do the historical traditions of the American people
support the view that the right to terminate one's pregnancy is
fundamental.  The common law which we inherited from England made
abortion after quickening an offense.  At the time of the
adoption of the Fourteenth Amendment, statutory prohibitions or
restrictions on abortion were commonplace; in 1868, at least 28
of the then-37 States and 8 Territories had statutes banning or
limiting abortion.  J. Mohr, Abortion in America 200 (1978).  By
the turn of the century virtually every State had a law
prohibiting or restricting abortion on its books.  By the middle
of the present century, a liberalization trend had set in.  But
21 of the restrictive abortion laws in effect in 1868 were still
in effect in 1973 when Roe was decided,and an overwhelming
majority of the States prohibited abortion unless necessary to
preserve the life or healthof the mother.  Roe v. Wade, 410 U.
S., at 139-140; id.,at 176-177, n. 2 (Rehnquist, J., dissenting).
On this record, it can scarcely be said that any deeply rooted
tradition of relatively unrestricted abortion in our history
supported the classification of the right to abortion as
fundamental under the Due Process Clause of the Fourteenth
Amendment.

    We think, therefore, both in view of this history and of
our decided cases dealing with substantive liberty under the Due
Process Clause, that the Court was mistaken in Roe when it
classified a woman's decision to terminate her pregnancy as a
fundamental right that could be abridged only in a manner which
withstood strict scrutiny.  In so concluding, we repeat the
observation made in Bowers v. Hardwick, 478 U. S. 186 (1986):
Nor are we inclined to take a more expansive view of our
authority to discover new fundamental rights imbedded in the Due
Pro- cess Clause.  The Court is most vulnerable and comes nearest
to illegitimacy when it deals with judge-made constitutional law
having little or no cognizable roots in the language or design of
the Constitution.  Id., at 194.  We believe that the sort of
constitutionally imposed abortion code of the type illustrated by
our decisions following Roe is inconsistent with the notion of a
Constitution cast in general terms, as ours is, and usually
speaking in general principles, as ours does.  Webster v.
Reproductive Health Services, 492 U. S., at 518 (plurality
opinion).  The Court in Roe reached too far when it analogized
the right to abort a fetus to the rights involved in Pierce,
Meyer, Loving, and Griswold, and thereby deemed the right to
abortion fundamental.

II

    The joint opinion of Justices O'Connor, Kennedy, and
Souter cannot bring itself to say that Roe was correct as an
original matter, but the authors are of the view 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.  Ante, at 29.  Instead of claiming that Roe was
correct as a matter of original constitutional interpretation,
the opinion therefore contains an elaborate discus- sion of stare
decisis.  This discussion of the principle of stare decisis
appears to be almost entirely dicta, because the joint opinion
does not apply that principle in dealing with Roe.  Roe decided
that a woman had a fundamental right to an abortion.  The joint
opinion rejects that view.  Roe decided that abortion regulations
were to be subjected to strict scrutiny and could be justified
only in the light of compelling state interests.  The joint
opinion rejects that view.  Ante, at 29-30; see Roe v. Wade,
supra, at 162-164.  Roe analyzed abortion regulation under a
rigid trimester framework, a framework which has guided this
Court's decisionmaking for 19 years.  The joint opinion rejects
that framework.  Ante, at 31.

    Stare decisis is defined in Black's Law Dictionary as
meaning to abide by, or adhere to, decided cases.  Black's Law
Dictionary 1406 (6th ed.  1990).  Whatever the central holding of
Roe that is left after the joint opinion finishes dissecting it
is surely not the result of that principle.  While purporting to
adhere to precedent, the joint opinion instead revises it.  Roe
continues to exist, but only in the way a storefront on a western
movie set exists: a mere facade to give the illusion of reality.
Decisions following Roe, such as Akron v. Akron Center for
Reproductive Health, Inc., 462 U. S. 416 (1983), and Thornburgh
v.  American College of Obstetricians and Gynecologists, 476 U.
S. 747 (1986), are frankly overruled in part under the undue
burden standard expounded in the joint opinion.  Ante, at 39-42.

    In our view, authentic principles of stare decisis do not
require that any portion of the reasoning in Roe be kept intact.
Stare decisis is not . . .  a universal, inexorable command,
especially in cases involving the interpretation of the Federal
Constitution.  Burnet v. Coronado Oil & Gas Co., 285 U.S. 393,
405 (1932) (Brandeis, J., dissenting).  Erroneous decisions in
such constitutional cases are uniquely durable, because
correction through legislative action, save for constitutional
amendment, is impossible.  It is therefore our duty to reconsider
constitutional interpretations that depar[t] from a proper
understanding of the Constitution.  Garcia v. San Antonio
Metropolitan Transit Authority, 469 U. S., at 557; see United
States v. Scott, 437 U. S. 82, 101 (1978) ( `[I]n cases involving
the Federal Constitution, . . . [t]he Court bows to the lessons
of experience and the force of better reasoning, recognizing that
the process of trial and error, so fruitful in the physical
sciences, is appropriate also in the judicial function.' (quoting
Burnet v. Coronado Oil & Gas Co., supra, at 406-408 (Brandeis,
J., dissenting))); Smith v. Allwright, 321 U. S. 649, 665 (1944).
Our constitutional watch does not cease merely because we have
spoken before on an issue; when it becomes clear that a prior
constitutional interpretation is unsound we are obliged to
reexamine the question.  See, e.g., West Virginia State Bd. of
Education v. Barnette, 319 U. S. 624, 642 (1943); Erie R. Co. v.
Tompkins, 304 U. S. 64, 74-78 (1938).

    The joint opinion discusses several stare decisis factors
which, it asserts, point toward retaining a portion of Roe.  Two
of these factors are that the main factual underpinning of Roe
has remained the same, and that its doctrinal foundation is no
weaker now than it was in 1973.  Ante, at 14-18.  Of course, what
might be called the basic facts which gave rise to Roe have
remained the same"women become pregnant, there is a point
somewhere, depending on medical technology, where a fetus becomes
viable, and women give birth to children.  But this is only to
say that the same facts which gave rise to Roe will continue to
give rise to similar cases.  It is not a reason, in and of
itself, why those cases must be decided in the same incorrect
manner as was the first case to deal with the question.  And
surely there is no requirement, in considering whether to depart
from stare decisis in a constitutional case, that a decision be
more wrong now than it was at the time it was rendered.  If that
were true, the most outlandish constitutional decision could
survive forever, based simply on the fact that it was no more
outlandish later than it was when originally rendered.

    Nor does the joint opinion faithfully follow this alleged
requirement.  The opinion frankly concludes that Roe and its
progeny were wrong in failing to recognize that the State's
interests in maternal health and in the protection of unborn
human life exist throughout pregnancy.  Ante, 29-31.  But there
is no indication that these components of Roe are any more
incorrect at this juncture than they were at its inception.

    The joint opinion also points to the reliance interests
involved in this context in its effort to explain why precedent
must be followed for precedent's sake.  Certainly it is true that
where reliance is truly at issue, as in the case of judicial
decisions that have formed the basis for private decisions,
[c]onsiderations in favor of stare decisis are at their acme.
Payne v. Tennes- see, 501 U. S., at "" (slip op., at 18).  But,
as the joint opinion apparently agrees, ante, at 13-14, any
traditional notion of reliance is not applicable here.  The Court
today cuts back on the protection afforded by Roe, and no one
claims that this action defeats any reliance interest in the
disavowed trimester framework.  Similarly, reliance interests
would not be diminished were the Court to go further and
acknowledge the full error of Roe, as reproductive planning could
take virtually immediate account of this action.  Ante, at 14.

    The joint opinion thus turns to what can only be
described as an unconventional "and unconvincing" notion of
reliance, a view based on the surmise that the availability of
abortion since Roe has led to two decades of economic and social
developments that would be undercut if the error of Roe were
recognized.  Ibid.  The joint opinion's assertion of this fact is
undeveloped and totally conclusory.  In fact, one can not be sure
to what economic and social developments the opinion is
referring.  Surely it is dubious to suggest that women have
reached their places in society in reliance upon Roe, rather than
as a result of their determination to obtain higher education and
compete with men in the job market, and of society's increasing
recognition of their ability to fill positions that were
previously thought to be reserved only for men.  Ibid.

    In the end, having failed to put forth any evidence to
prove any true reliance, the joint opinion's argument is based
solely on generalized assertions about the national psyche, on a
belief that the people of this country have grown accustomed to
the Roe decision over the last 19 years and have ordered their
thinking and living around it.  Ibid.  As an initial matter, one
might inquire how the joint opinion can view the central holding
of Roe as so deeply rooted in our constitutional culture, when it
so casually uproots and disposes of that same decision's
trimester framework.  Furthermore, at various points in the past,
the same could have been said about this Court's erroneous
decisions that the Constitution allowed separate but equal
treatment of minorities, see Plessy v. Ferguson, 163 U.S. 537
(1896), or that liberty under the Due Process Clause protected
freedom of contract. See Adkins v. Children's Hospital of D. C.,
261 U. S.  525 (1923); Lochner v. New York, 198 U. S. 45 (1905).
The separate but equal doctrine lasted 58 years after Plessy, and
Lochner's protection of contractual freedom lasted 32 years.
However, the simple fact that a generation or more had grown used
to these major decisions did not prevent the Court from
correcting its errors in those cases, nor should it prevent us
from cor- rectly interpreting the Constitution here.  See Brown
v. Board of Education, 347 U. S. 483 (1954) (rejecting the
separate but equal doctrine); West Coast Hotel Co. v. Parrish,
300 U. S. 379 (1937) (overruling Adkins v. Children's Hospital,
supra, in upholding Washington's minimum wage law).

    Apparently realizing that conventional stare decisis
principles do not support its position, the joint opinion
advances a belief that retaining a portion of Roe is necessary to
protect the legitimacy of this Court.  Ante, at 19-27.  Because
the Court must take care to render decisions grounded truly in
principle, and not simply as political and social compromises,
ante, at 23, the joint opinion properly declares it to be this
Court's duty to ignore the public criticism and protest that may
arise as a result of a decision. Few would quarrel with this
statement, although it may be doubted that Members of this Court,
holding their tenure as they do during constitutional good
behavior, are at all likely to be intimidated by such public
protests.


    But the joint opinion goes on to state that when the
Court resolve[s] the sort of intensely divisive controversy
reflected in Roe and those rare, comparable cases, its decision
is exempt from reconsideration under established principles of
stare decisis in constitutional cases.  Ante, at 24. This is so,
the joint opinion contends, because in those intensely divisive
cases the Court has call[ed] the contending sides of a national
controversy to end their national division by accepting a common
mandate rooted in the Constitution, and must therefore take
special care not to be perceived as surrender[ing] to political
pressure and continued opposition.  Ante, at 24-25.  This is a
truly novel principle, one which is contrary to both the Court's
histori- cal practice and to the Court's traditional willingness
to tolerate criticism of its opinions.  Under this principle,
when the Court has ruled on a divisive issue, it is apparently
prevented from overruling that decision for the sole reason that
it was incorrect, unless opposition to the original decision has
died away.

    The first difficulty with this principle lies in its
assumption that cases which are intensely divisive can be readily
distinguished from those that are not.  The question of whether a
particular issue is intensely divisive enough to qualify for
special protection is entirely subjective and dependent on the
individual assumptions of the members of this Court.  In
addition, because the Court's duty is to ignore public opinion
and criticism on issues that come before it, its members are in
perhaps the worst position to judge whether a decision divides
the Nation deeply enough to justify such uncommon protection.
Although many of the Court's decisions divide the populace to a
large degree, we have not previous- ly on that account shied away
from applying normal rules of stare decisis when urged to
reconsider earlier decisions.  Over the past 21 years, for
example, the Court has overruled in whole or in part 34 of its
previous constitutional decisions.  See Payne v. Tennessee,
supra, at "", and n. 1 (slip op., at 18-19, and n. 1) (listing
cases).

    The joint opinion picks out and discusses two prior Court
rulings that it believes are of the intensely divisive variety,
and concludes that they are of comparable dimension to Roe.
Ante, at 19-22 (discussing Lochner v. New York, supra, and Plessy
v. Ferguson, supra).  It appears to us very odd indeed that the
joint opinion chooses as benchmarks two cases in which the Court
chose not to adhere to erroneous constitutional precedent, but
instead enhanced its stature by acknowledging and correcting its
error, apparently in violation of the joint opinion's legitimacy
principle.  See West Coast Hotel Co. v. Parrish, supra; Brown v.
Board of Education, supra.  One might also wonder how it is that
the joint opinion puts these, and not others, in the intensely
divisive category, and how it assumes that these are the only two
lines of cases of comparable dimension to Roe.  There is no
reason to think that either Plessy or Lochner produced the sort
of public protest when they were decided that Roe did.  There
were undoubtedly large segments of the bench and bar who agreed
with the dissenting views in those cases, but surely that cannot
be what the Court means when it uses the term intensely divisive,
or many other cases would have to be added to the list.  In terms
of public protest, however, Roe, so far as we know, was unique.
But just as the Court should not respond to that sort of protest
by retreating from the decision simply to allay the concerns of
the protesters, it should likewise not respond by determining to
adhere to the decision at all costs lest it seem to be retreating
under fire.  Public protests should not alter the normal
application of stare decisis, lest perfectly lawful protest
activity be penalized by the Court itself.

    Taking the joint opinion on its own terms, we doubt that
its distinction between Roe, on the one hand, and Plessy and
Lochner, on the other, withstands analysis.  The joint opinion
acknowledges that the Court improved its stature by overruling
Plessy in Brown on a deeply divisive issue.  And our decision in
West Coast Hotel, which overruled Adkins v. Children's Hospital,
supra, and Lochner, was rendered at a time when Congress was
considering President Franklin Roosevelt's proposal to reorganize
this Court and enable him to name six additional Justices in the
event that any member of the Court over the age of 70 did not
elect to retire.  It is difficult to imagine a situation in which
the Court would face more intense opposition to a prior ruling
than it did at that time, and, under the general principle
proclaimed in the joint opinion, the Court seemingly should have
responded to this opposition by stubbornly refusing to reexamine
the Lochner rationale, lest it lose legitimacy by appearing to
overrule under fire.  Ante, at 25.

    The joint opinion agrees that the Court's stature would
have been seriously damaged if in Brown and West Coast Hotel it
had dug in its heels and refused to apply normal principles of
stare decisis to the earlier decisions.  But the opinion contends
that the Court was entitled to overrule Plessy and Lochner in
those cases, despite the existence of opposition to the original
decisions, only because both the Nation and the Court had learned
new lessons in the interim.  This is at best a feebly supported,
post hoc rationalization for those decisions.

    For example, the opinion asserts that the Court could
justifiably overrule its decision in Lochner only because the
Depression had convinced most people that constitutional
protection of contractual freedom contributed to an economy that
failed to protect the welfare of all.  Ante, at 19.  Surely the
joint opinion does not mean to suggest that people saw this
Court's failure to uphold minimum wage statutes as the cause of
the Great Depression- In any event, the Lochner Court did not
base its rule upon the policy judgment that an unregulated market
was fundamental to a stable economy; it simply believed,
erroneously, that liberty under the Due Process Clause protected
the right to make a contract.  Lochner v. New York, 198 U. S., at
53.  Nor is it the case that the people of this Nation only
discovered the dangers of extreme laissez faire economics because
of the Depression.  State laws regulating maximum hours and
minimum wages were in existence well before that time.  A Utah
statute of that sort enacted in 1896 was involved in our decision
in Holden v.  Hardy, 169 U. S. 366 (1898), and other states
followed suit shortly afterwards.  See, e.g., Muller v. Oregon,
208 U.S. 412 (1908); Bunting v. Oregon, 243 U.S. 426 (1917).
These statutes were indeed enacted because of a belief on the
part of their sponsors that freedom of contract did not protect
the welfare of workers, demonstrating that that belief manifested
itself more than a generation before the Great Depression.
Whether most people had come to share it in the hard times of the
1930's is, insofar as anything the joint opinion advances,
entirely speculative.  The crucial failing at that time was not
that workers were not paid a fair wage, but that there was no
work available at any wage.

    When the Court finally recognized its error in West Coast
Hotel, it did not engage in the post hoc rationalization that the
joint opinion attributes to it today; it did not state that
Lochner had been based on an economic view that had fallen into
disfavor, and that it therefore should be overruled.  Chief
Justice Hughes in his opinion for the Court simply recognized
what Justice Holmes had previously recognized in his Lochner
dissent, that [t]he Constitution does not speak of freedom of
contract.  West Coast Hotel Co. v. Parrish, 300 U.S., at 391;
Lochner v. New York, supra, at 75 (Holmes, J., dissenting) ( [A]
Constitution is not intended to embody a particular economic
theory, whether of paternalism and the organic relation of the
citizen to the State or of laissez faire).  Although the Court
did acknowledge in the last paragraph of its opinion the state of
affairs during the then-current Depression, the theme of the
opinion is that the Court had been mistaken as a matter of
constitutional law when it embraced freedom of contract 32 years
previously.

    The joint opinion also agrees that the Court acted
properly in rejecting the doctrine of separate but equal in
Brown.  In fact, the opinion lauds Brown in comparing it to Roe.
Ante, at 25.  This is strange, in that under the opinion's
legitimacy principle the Court would seemingly have been forced
to adhere to its erroneous decision in Plessy because of its
intensely divisive character.  To us, adherence to Roe today
under the guise of legitimacy would seem to resemble more closely
adherence to Plessy on the same ground.  Fortunately, the Court
did not choose that option in Brown, and instead frankly
repudiated Plessy.  The joint opinion concludes that such
repudiation was justified only because of newly discovered
evidence that segregation had the effect of treating one race as
inferior to another.  But it can hardly be argued that this was
not urged upon those who decided Plessy, as Justice Harlan
observed in his dissent that the law at issue puts the brand of
servitude and degradation upon a large class of our fellow-
citizens, our equals before the law.  Plessy v.  Ferguson, 163 U.
S., at 562 (Harlan, J., dissenting).  It is clear that the same
arguments made before the Court in Brown were made in Plessy as
well.  The Court in Brown simply recognized, as Justice Harlan
had recognized beforehand, that the Fourteenth Amendment does not
permit racial segregation.  The rule of Brown is not tied to
popular opinion about the evils of segregation; it is a judgment
that the Equal Protection Clause does not permit racial
segregation, no matter whether the public might come to believe
that it is beneficial.  On that ground it stands, and on that
ground alone the Court was justified in properly concluding that
the Plessy Court had erred.

    There is also a suggestion in the joint opinion that the
propriety of overruling a divisive decision depends in part on
whether most people would now agree that it should be overruled.
Either the demise of opposition or its progression to substantial
popular agreement apparently is required to allow the Court to
reconsider a divisive decision.  How such agreement would be
ascertained, short of a public opinion poll, the joint opinion
does not say.  But surely even the suggestion is totally at war
with the idea of legitimacy in whose name it is invoked.  The
Judicial Branch derives its legitimacy, not from following public
opinion, but from deciding by its best lights whether legislative
enactments of the popular branches of Government comport with the
Constitution.  The doctrine of stare decisis is an adjunct of
this duty, and should be no more subject to the vagaries of
public opinion than is the basic judicial task.

    There are other reasons why the joint opinion's
discussion of legitimacy is unconvincing as well.  In assuming
that the Court is perceived as surrender[ing] to political
pressure when it overrules a controversial decision, ante, at 25,
the joint opinion forgets that there are two sides to any
controversy.  The joint opinion asserts that, in order to protect
its legitimacy, the Court must refrain from overruling a
controversial decision lest it be viewed as favoring those who
oppose the decision.  But a decision to adhere to prior precedent
is subject to the same criticism, for in such a case one can
easily argue that the Court is responding to those who have
demonstrated in favor of the original decision.  The decision in
Roe has engendered large demonstrations, including repeated
marches on this Court and on Congress, both in opposition to and
in support of that opinion.  A decision either way on Roe can
therefore be perceived as favoring one group or the other.  But
this perceived dilemma arises only if one assumes, as the joint
opinion does, that the Court should make its decisions with a
view toward speculative public perceptions.  If one assumes
instead, as the Court surely did in both Brown and West Coast
Hotel, that the Court's legitimacy is enhanced by faithful
interpretion of the Constitution irrespective of public
opposition, such self-engendered difficulties may be put to one
side.

    Roe is not this Court's only decision to generate
conflict.  Our decisions in some recent capital cases, and in
Bowers v. Hardwick, 478 U. S. 186 (1986), have also engendered
demonstrations in opposition.  The joint opinion's message to
such protesters appears to be that they must cease their
activities in order to serve their cause, because their protests
will only cement in place a decision which by normal standards of
stare decisis should be reconsidered.  Nearly a century ago,
Justice David J. Brewer of this Court, in an article discussing
criticism of its decisions, observed that many criticisms may be,
like their authors, devoid of good taste, but better all sorts of
criticism than no criticism at all.  Justice Brewer on The
Nation's Anchor, 57 Albany L.J. 166, 169 (1898).  This was good
advice to the Court then, as it is today.  Strong and often
misguided criticism of a decision should not render the decision
immune from reconsideration, lest a fetish for legitimacy
penalize freedom of expression.

    The end result of the joint opinion's paeans of praise
for legitimacy is the enunciation of a brand new standard for
evaluating state regulation of a woman's right to abortion "the
undue burden standard.  As indicated above, Roe v. Wade adopted a
fundamental right standard under which state regulations could
survive only if they met the requirement of strict scrutiny.
While we disagree with that standard, it at least had a
recognized basis in constitutional law at the time Roe was
decided.  The same cannot be said for the undue burden standard,
which is created largely out of whole cloth by the authors of the
joint opinion.  It is a standard which even today does not
command the support of a majority of this Court.  And it will
not, we believe, result in the sort of simple limitation, easily
applied, which the joint opinion anticipates.  Ante, at 13.  In
sum, it is a standard which is not built to last.

    In evaluating abortion regulations under that standard,
judges will have to decide whether they place a substantial
obstacle in the path of a woman seeking an abortion.  Ante, at
34.  In that this standard is based even more on a judge's
subjective determinations than was the trimester framework, the
standard will do nothing to prevent judges from roaming at large
in the constitutional field guided only by their personal views.
Griswold v. Connecticut, 381 U. S., at 502 (Harlan, J.,
concurring in judgment).  Because the undue burden standard is
plucked from nowhere, the question of what is a substantial
obstacle to abortion will undoubtedly engender a variety of
conflicting views.  For example, in the very matter before us
now, the authors of the joint opinion would uphold Pennsylvania's
24-hour waiting period, concluding that a "particular burden" on
some women is not a substantial obstacle.  Ante, at 44.  But the
authors would at the same time strike down Pennsylvania's spousal
notice provision, after finding that in a large fraction of cases
the provision will be a substantial obstacle.  Ante, at 53.  And,
while the authors conclude that the informed consent provisions
do not constitute an undue burden, Justice Stevens would hold
that they do.  Ante, at 9-11.

    Furthermore, while striking down the spousal notice
regulation, the joint opinion would uphold a parental consent
restriction that certainly places very substantial obstacles in
the path of a minor's abortion choice.  The joint opinion is
forthright in admitting that it draws this distinction based on a
policy judgment that parents will have the best interests of
their children at heart, while the same is not necessarily true
of husbands as to their wives.  Ante, at 53.  This may or may not
be a correct judgment, but it is quintessentially a legislative
one.  The undue burden inquiry does not in any way supply the
distinction between parental consent and spousal consent which
the joint opinion adopts.  Despite the efforts of the joint
opinion, the undue burden standard presents nothing more workable
than the trimester framework which it discards today.  Under the
guise of the Constitution, this Court will still impart its own
preferences on the States in the form of a complex abortion code.

    The sum of the joint opinion's labors in the name of
stare decisis and legitimacy is this: Roe v.  Wade stands as a
sort of judicial Potemkin Village, which may be pointed out to
passers by as a monument to the importance of adhering to prece-
dent.  But behind the facade, an entirely new method of analysis,
without any roots in constitutional law, is imported to decide
the constitutionality of state laws regulating abortion.  Neither
stare decisis nor legitimacy are truly served by such an effort.

    We have stated above our belief that the Constitution
does not subject state abortion regulations to heightened
scrutiny.  Accordingly, we think that the correct analysis is
that set forth by the plurality opinion in Webster.  A woman's
interest in having an abortion is a form of liberty protected by
the Due Process Clause, but States may regulate abortion
procedures in ways rationally related to a legitimate state
interest.  Williamson v. Lee Optical of Okla., Inc., 348 U. S.
483, 491 (1955); cf. Stanley v. Illinois, 405 U. S.  645, 651-653
(1972).  With this rule in mind, we examine each of the
challenged provisions.

III
A

    Section 3205 of the Act imposes certain requirements
related to the informed consent of a woman seeking an abortion.
18 Pa. Cons. Stat.  3205 (1990).  Section 3205(a)(1) requires
that the referring or performing physician must inform a woman
contemplating an abortion of (i) the nature of the procedure, and
the risks and alternatives that a reasonable patient would find
material; (ii) the fetus' probable gestational age; and (iii) the
medical risks involved in carrying her pregnancy to term.
Section 3205(a)(2) requires a physician or a nonphysician
counselor to inform the woman that (i) the state health
department publishes free materials describing the fetus at
different stages and listing abortion alternatives; (ii) medical
assistance benefits may be available for prenatal, childbirth,
and neonatal care; and (iii) the child's father is liable for
child support.  The Act also imposes a 24-hour waiting period
between the time that the woman receives the required information
and the time that the physician is allowed to perform the
abortion.  See Appendix, ante, at 61-63.

    This Court has held that it is certainly within the
province of the States to require a woman's voluntary and
informed consent to an abortion.  See Thornburgh v. American
College of Obstetricians and Gynecologists, 476 U. S., at 760.
Here, Pennsylvania seeks to further its legitimate interest in
obtaining informed consent by ensuring that each woman is aware
not only of the reasons for having an abortion, but also of the
risks associated with an abortion and the availability of
assistance that might make the alternative of normal childbirth
more attractive than it might otherwise appear.  Id., at 798-799
(White, J., dissenting).

    We conclude that this provision of the statute is
rationally related to the State's interest in assuring thata
woman's consent to an abortion be a fully informed decision.

    Section 3205(a)(1) requires a physician to disclose
certain information about the abortion procedure and its risks
and alternatives.  This requirement is certainly no large burden,
as the Court of Appeals found that the record shows that the
clinics, without exception, insist on providing this information
to women before an abortion is performed.  947 F. 2d, at 703.  We
are of the view that this information clearly is related to
maternal health and to the State's legitimate purpose in
requiring informed consent.  Akron v. Akron Center for
Reproductive Health, 462 U.S., at 446.  An accurate description
of the gestational age of the fetus and of the risks involved in
carrying a child to term helps to further both those interests
and the State's legitimate interest in unborn human life.  See
id., at 445-446, n. 37 (required disclosure of gestational age of
the fetus certainly is not objectionable).  Although petitioners
contend that it is unreasonable for the State to require that a
physician, as opposed to a nonphysician counsel- or, disclose
this information, we agree with the Court of Appeals that a State
may rationally decide that physicians are better qualified than
counselors to impart this information and answer questions about
the medical aspects of the available alternatives.  947 F. 2d, at
704.

    Section 3205(a)(2) compels the disclosure, by a physician
or a counselor, of information concerning the availability of
paternal child support and state-funded alternatives if the woman
decides to proceed with her pregnancy.  Here again, the Court of
Appeals observed that the record indicates that most clinics
already require that a counselor consult in person with the woman
about alternatives to abortion before the abortion is performed.
Id., at 704-705.  And petitioners do not claim that the
information required to be disclosed by statute is in any way
false or inaccurate; indeed, the Court of Appeals found it to be
relevant, accurate, and non-inflammatory.  Id., at 705.  We
conclude that this required presentation of balanced information
is rationally related to the State's legitimate interest in
ensuring that the woman's consent is truly informed, Thornburgh
v. American College of Obstetricians and Gynecologists, 476 U.
S., at 830 (O'Connor, J., dissenting), and in addition furthers
the State's interest in preserving unborn life.  That the
information might create some uncertainty and persuade some women
to forgo abortions does not lead to the conclusion that the
Constitution forbids the provision of such information.  Indeed,
it only demonstrates that this information might very well make a
difference, and that it is therefore relevant to a woman's
informed choice.  Cf.  id., at 801 (White, J., dissenting) (
[T]he ostensible objective of Roe v. Wade is not maximizing the
number of abortions, but maximizing choice).  We acknowledge that
in Thornburgh this Court struck down informed consent
requirements similar to the ones at issue here.  See id., at
760-764.  It is clear, however, that while the detailed framework
of Roe led to the Court's invalidation of those informational
requirements, they would have been sustained under any
traditional standard of judicial review, . . . or for any other
surgical procedure except abortion.  Webster v. Reproductive
Health Services, 492 U. S., at 517 (plurality opinion) (citing
Thornburgh v. American College of Obstetricians and
Gynecologists, 476 U. S., at 802 (White, J., dissenting); id., at
783 (Burger, C. J., dissenting)).  In light of our rejection of
Roe's fundamental right approach to this subject, we do not
regard Thornburgh as controlling.

    For the same reason, we do not feel bound to follow this
Court's previous holding that a State's 24-hour mandatory waiting
period is unconstitutional.  See Akron v. Akron Center for
Reproductive Health, 462 U. S., at 449-451.  Petitioners are
correct that such a provision will result in delays for some
women that might not otherwise exist, therefore placing a burden
on their liberty.  But the provision in no way prohibits
abortions, and the informed consent and waiting period
requirements do not apply in the case of a medical emergency.
See 18 Pa. Cons. Stat. 3205(a), (b) (1990).  We are of the view
that, in providing time for reflection and reconsideration, the
waiting period helps ensure that a woman's decision to abort is a
well-considered one, and reasonably furthers the State's
legitimate interest in maternal health and in the unborn life of
the fetus.  It is surely a small cost to impose to ensure that
the woman's decision is well considered in light of its certain
and irreparable consequences on fetal life, and the possible
effects on her own.  Id., at 474 (O'Connor, J., dissenting).

B

    In addition to providing her own informed consent, before
an unemancipated woman under the age of 18 may obtain an abortion
she must either furnish the consent of one of her parents, or
must opt for the judicial procedure that allows her to bypass the
consent requirement.  Under the judicial bypass option, a minor
can obtain an abortion if a state court finds that she is capable
of giving her informed consent and has indeed given such consent,
or determines that an abortion is in her best interests.  Records
of these court proceedings are kept confidential.  The Act
directs the state trial court to render a decision within three
days of the woman's application, and the entire procedure,
including appeal to Pennsylvania Superior Court, is to last no
longer than eight business days.  The parental consent
requirement does not apply in the case of a medical emergency.
18 Pa. Cons. Stat. 3206 (1990).  See Appendix, ante, at 64-65.

    This provision is entirely consistent with this Court's
previous decisions involving parental consent requirements.  See
Planned Parenthood Association of Kansas City, Mo., Inc. v.
Ashcroft, 462 U. S. 476 (1983) (upholding parental consent
requirement with a similar judicial bypass option); Akron v.
Akron Center for Reproductive Health, supra, at 439-440
(approving of parental consent statutes that include a judicial
bypass option allowing a pregnant minor to demonstrate that she
is sufficiently mature to make the abortion decision herself or
that, despite her immaturity, an abortion would be in her best
interests); Bellotti v. Baird, 443 U. S. 622 (1979).