Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/ussct/abort6.asc

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 We think it beyond dispute that a State has a strong and
legitimate interest in the welfare of its young citizens, whose
immaturity, inexperience, and lack of judgment may sometimes
impair their ability to exercise their rights wisely.  Hodgson v.
Minnesota, 497 U. S., at 444 (opinion of Stevens, J.).  A
requirement of parental consent to abortion, like myriad other
restrictions placed upon minors in other contexts, is reasonably
designed to further this important and legitimate state interest.
In our view, it is entirely rational and fair for the State to
conclude that, in most instances, the family will strive to give
a lonely or even terrified minor advice that is both
compassionate and mature.  Ohio v. Akron Center for Reproductive
Health, 497 U. S., at 520 (opinion of Kennedy, J.); see also
Planned Parenthood of Central Mo. v. Danforth, 428 U. S., at 91
(Stewart, J., concurring) (There can be little doubt that the
State furthers a constitutionally permissible end by encouraging
an unmarried pregnant minor to seek the help and advice of her
parents in making the very important decision whether or not to
bear a child).  We thus conclude that Pennsylvania's parental
consent requirement should be upheld.


C

 Section 3209 of the Act contains the spousal notification
rovision.  It requires that, before a physician may perform an
abortion on a married woman, the woman must sign a statement
indicating that she has notified her husband of her planned
abortion.  A woman is not required to notify her husband if (1)
her husband is not the father, (2) her husband, after diligent
effort, cannot be located, (3) the pregnancy is the result of a
spousal sexual assault that has been reported to the authorities,
or (4) the woman has reason to believe that notifying her husband
is likely to result in the infliction of bodily injury upon her
by him or by another individual.  In addition, a woman is
exempted from the notification requirement in the case of a
medical emergency.  18 Pa. Cons. Stat.  3209 (1990).  See
Appendix, ante, at 68-69.

 We first emphasize that Pennsylvania has not imposed a
spousal consent requirement of the type the Court struck down in
Planned Parenthood of Central Mo. v. Danforth, 428 U. S., at
67-72.  Missouri's spousal consent provision was invalidated in
that case because of the Court's view that it unconstitutionally
granted to the husband a veto power exercisable for any reason
whatsoever or for no reason at all.  Id., at 71.  But this case
involves a much less intrusive requirement of spousal
notification, not consent.  Such a law requiring only notice to
the husband does not give any third party the legal right to make
the [woman's] decision for her, or to prevent her from obtaining
an abortion should she choose to have one performed.  Hodgson v.
Minnesota, supra, at 496 (Kennedy, J., concurring in judgment in
part and dissenting in part); see H. L. v. Matheson, 450 U.S., at
411, n. 17.  Danforth thus does not control our analysis.
Petitioners contend that it should, however; they argue that the
real effect of such a notice requirement is to give the power to
husbands to veto a woman's abortion choice.  The District Court
indeed found that the notification provision created a risk that
some woman who would otherwise have an abortion will be prevented
from having one.  947 F. 2d, at 712.  For example, petitioners
argue, many notified husbands will prevent abortions through
physical force, psychological coercion, and other types of
threats.  But Pennsylvania has incorporated exceptions in the
notice provision in an attempt to deal with these problems.  For
instance, a woman need not notify her husband if the pregnancy is
result of a reported sexual assault, or if she has reason to
believe that she wouldsuffer bodily injury as a result of the
notification.  18 Pa. Cons. Stat. 3209(b) (1990).  Furthermore,
because this is a facial challenge to the Act, it is insufficient
for petitioners to show that the notification provision might
operate unconstitutionally under some conceivable set of
circumstances.  United States v. Salerno, 481 U. S.  739, 745
(1987).  Thus, it is not enough for petitioners to show that, in
some worst-case circumstances, the notice provision will operate
as a grant of veto power to husbands.  Ohio v.  Akron Center for
Reproductive Health, 497 U. S., at 514.  Because they are making
a facial challenge to the provision, they must show that no set
of circumstances exists under which the [provision] would be
valid.  Ibid. (internal quotation marks omitted).  This they have
failed to do.

 The question before us is therefore whether the spousal
notification requirement rationally furthers any legitimate state
interests.  We conclude that it does.  First, a husband's
interests in procreation within marriage and in the potential
life of his unborn child are certainly substantial ones.  See
Planned Parenthood of Central Mo. v. Danforth, 428 U. S., at 69 (
We are not unaware of the deep and proper concern and interest
that a devoted and protective husband has in his wife's pregnancy
and in the growth and development of the fetus she is carrying);
id., at 93 (White, J., concurring in part and dissenting in
part); Skinner v. Oklahoma ex rel. Williamson, 316 U.S., at 541.
The State itself has legitimate interests both in protecting
these interests of the father and in protecting the potential
life of the fetus, and the spousal notification requirement is
reasonably related to advancing those state interests.  By
providing that a husband will usually know of his spouse's intent
to have an abortion, the provision makes it more likely that the
husband will participate in deciding the fate of his unborn
child, a possibility that might otherwise have been denied him.
This participation might in some cases result in a decision to
proceed with the pregnancy.  As Judge Alito observed in his
dissent below, [t]he Pennsylvania legislature could have
rationally believed that some married women are initially
inclined to obtain an abortion without their husbands' knowledge
because of perceived problems "such as economic constraints,
future plans, or the husbands' previously expressed opposition"
that may be obviated by discussion prior to the abortion.
947 F. 2d, at 726 (Alito, J., concurring in part and dissenting
in part).

 The State also has a legitimate interest in promoting the
integrity of the marital relationship.  18 Pa. Cons. Stat.
3209(a) (1990).  This Court has previously recognized the
importance of the marital relationship in our society.  Planned
Parenthood of Central Mo. v. Danforth, supra, at 69.  In our
view, the spousal notice requirement is a rational attempt by the
State to improve truthful communication between spouses and
encourage collaborative decisionmaking, and thereby fosters
marital integrity.  See Labine v.  Vincent, 401 U. S. 532, 538
(1971) ( [T]he power to make rules to establish, protect, and
strengthen family life is committed to the state legislatures).
Petitioners argue that the notification requirement does not
further any such interest; they assert that the majority of wives
already notify their husbands of their abortion decisions, and
the remainder have excellent reasons for keeping their decisions
a secret.  In the first case, they argue, the law is unnecessary,
and in the second case it will only serve to foster marital
discord and threats of harm.  Thus, petitioners see the law as a
totally irrational means of furthering whatever legitimate
interest the State might have.  But, in our view, it is
unrealistic to assume that every husband-wife relationship is
either (1) so perfect that this type of truthful and important
communication will take place as a matter of course, or (2) so
imperfect that, upon notice, the husband will react selfishly,
violently, or contrary to the best interests of his wife.  See
Planned Parenthood of Central Mo. v. Danforth, supra, at 103-104
(Stevens, J., concurring in part and dissenting in part) (making
a similar point in the context of a parental consent statute).
The spousal notice provision will admittedly be unnecessary in
some circumstances, and possibly harmful in others, but the
existence of particular cases in which a feature of a statute
performs no function (or is even counterproductive) ordinarily
does not render the statute unconstitutional or even
constitutionally suspect.  Thornburgh v. American College of
Obstetricians and Gynecologists, 476 U. S., at 800 (White, J.,
dissenting).  The Pennsylvania Legislature was in a position to
weigh the likely benefits of the provision against its likely
adverse effects, and presumably concluded, on balance, that the
provision would be beneficial.  Whether this was a wise decision
or not, we cannot say that it was irrational.  We therefore
conclude that the spousal notice provision comports with the
Constitution.  See Harris v. McRae, 448 U. S., at 325-326 (It is
not the mission of this Court or any other to decide whether the
balance of competing interests . . . is wise social policy).

D

 The Act also imposes various reporting requirements.
Section 3214(a) requires that abortion facilities file a report
on each abortion performed.  The reports do not include the
identity of the women on whom abortions are performed, but they
do contain a variety of information about the abortions.  For
example, each report must include the identities of the
performing and referring physicians, the gestational age of the
fetus at the time of abortion, and the basis for any medical
judgment that a medical emergency existed.  See 18 Pa. Cons.
Stat. 3214(a)(1), (5), (10) (1990).  See Appendix, ante, at
69-71.  The District Court found that these reports are kept
completely confidential.  947 F. 2d, at 716.  We further conclude
that these reporting requirements rationally further the State's
legitimate interests in advancing the state of medical knowledge
concerning maternal health and prenatal life, in gathering
statistical information with respect to patients, and in ensuring
compliance with other provisions of the Act.

 Section 3207 of the Act requires each abortion facility
to file a report with its name and address, as well as the names
and addresses of any parent, subsidiary or affiliated
organizations.  18 Pa. Cons. Stat. 3207(b) (1990).  Section
3214(f) further requires each facility to file quarterly reports
stating the total number of abortions performed, broken down by
trimester.  Both of these reports are available to the public
only if the facility received state funds within the preceding 12
months.  See Appendix, ante, at 65-66, 71.

 Petitioners do not challenge the requirement that
facilities provide this information.  They contend, however, that
the forced public disclosure of the information given by
facilities receiving public funds serves no legitimate state
interest.  We disagree.  Records relating to the expenditure of
public funds are generally available to the public under
Pennsylvania law.  See Pa.  Stat. Ann., Tit. 65, 66.1, 66.2
(Purdon 1959 and Supp. 1991-1992).  As the Court of Appeals
observed, [w]hen a state provides money to a private commercial
enterprise, there is a legitimate public interest in informing
taxpayers who the funds are benefiting and what services the
funds are supporting.  947 F. 2d, at 718.  These reporting
requirements rationally further this legitimate state interest.

E

 Finally, petitioners challenge the medical emergency
exception provided for by the Act.  The existence of a medical
emergency exempts compliance with the Act's informed consent,
parental consent, and spousal notice requirements.  See 18 Pa.
Cons. Stat. 3205(a), 3206(a), 3209(c) (1990).  The Act defines a
medical emergency as [t]hat condition which, on the basis of the
physician's good faith clinical judgment, so complicates the
medical condition of a pregnant woman as to necessitate the
immediate abortion of her pregnancy to avert her death or for
which a delay will create serious risk of substantial and
irreversible impairment of major bodily function.  3203.
Petitioners argued before the District Court that the statutory
definition was inadequate because it did not cover three serious
conditions that pregnant women can suffer "preeclampsia,
inevitable abortion, and prematurely ruptured membrane."  The
District Court agreed with petitioners that the medical emergency
exception was inadequate, but the Court of Appeals reversed this
holding.  In construing the medical emergency provision, the
Court of Appeals first observed that all three conditions do
indeed present the risk of serious injury or death when an
abortion is not performed, and noted that the medical
profession's uniformly prescribed treatment for each of the three
conditions is an immediate abortion.  See 947 F. 2d, at 700-701.
Finding that [t]he Pennsylvania legislature did not choose the
wording of its medical emergency exception in a vacuum, the court
read the exception as intended to assure that compliance with its
abortion regulations would not in any way pose a significant
threat to the life or health of a woman.  Id., at 701.  It thus
concluded that the exception encompassed each of the three
dangerous conditions pointed to by petitioners.

 We observe that Pennsylvania's present definition of
medical emergency is almost an exact copy of that State's
definition at the time of this Court's ruling in Thornburgh, one
which the Court made reference to with apparent approval.  476
U.S., at 771 ( It is clear that the Pennsylvania Legislature
knows how to provide a medical- emergency exception when it
chooses to do so).  We find that the interpretation of the Court
of Appeals in this case is eminently reasonable, and that the
provision thus should be upheld.  When a woman is faced with any
condition that poses a significant threat to [her] life or
health, she is exempted from the Act's consent and notice
requirements and may proceed immediately with her abortion.

IV

 For the reasons stated, we therefore would hold that each
of the challenged provisions of the Pennsylvania statute is
consistent with the Constitution.  It bears emphasis that our
conclu- sion in this regard does not carry with it any necessary
approval of these regulations.  Our task is, as always, to decide
only whether the challenged provisions of a law comport with the
United States Constitution.  If, as we believe, these do, their
wisdom as a matter of public policy is for the people of
Pennsylvania to decide.

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

 My views on this matter are unchanged from those I set
forth in my separate opinions in Webster v. Reproductive Health
Services, 492 U. S.  490, 532 (1989) (Scalia, J., concurring in
part and concurring in judgment), and Ohio v. Akron Center for
Reproductive Health, 497 U. S. 502, 520 (1990) (Akron II)
(Scalia, J., concurring).  The States may, if they wish, permit
abortion-on-demand, but the Constitution does not require them to
do so.  The permissibility of abortion, and the limitations upon
it, are to be resolved like most important questions in our
democracy: by citizens trying to persuade one another and then
voting.  As the Court acknowledges, where reasonable people
disagree the government can adopt one position or the other.
Ante, at 8.  The Court is correct in adding the qualification
that this assumes a state of affairs in which the choice does not
intrude upon a protected liberty, ante, at 9 "but the crucial
part of that qualification is the penultimate word.  A State's
choice between two positions on which reasonable people can
disagree is constitutional even when (as is often the case) it
intrudes upon a liberty in the absolute sense.  Laws against
bigamy, for example"which entire societies of reasonable people
disagree with"intrude upon men and women's liberty to marry and
live with one another.  But bigamy happens not to be a liberty
specially protected by the Constitution.

 That is, quite simply, the issue in this case: not
whether the power of a woman to abort her unborn child is a
liberty in the absolute sense; or even whether it is a liberty of
great importance to many women.  Of course it is both.  The issue
is whether it is a liberty protected by the Constitu- tion of the
United States.  I am sure it is not.  I reach that conclusion not
because of anything so exalted as my views concerning the concept
of existence, of meaning, of the universe, and of the mystery of
human life.  Ibid.  Rather, I reach it for the same reason I
reach the conclusion that bigamy is not constitutionally
protected"because of two simple facts: (1) the Constitution says
absolutely nothing about it, and (2) the longstand- ing
traditions of American society have permitted it to be legally
proscribed.  Akron II, supra, at 520 (Scalia, J., concurring).

 The Court destroys the proposition, evidently meant to
represent my position, that liberty includes only those
practices, defined at the most specific level, that were
protected against government interference by other rules of law
when the Fourteenth Amendment was ratified, ante, at 5 (citing
Michael H. v. Gerald D., 491 U. S.  110, 127, n. 6 (1989)
(opinion of Scalia, J.).  That is not, however, what Michael H.
says; it merely observes that, in defining liberty, we may not
disregard a specific, relevant tradition protecting, or denying
protection to, the asserted right, 491 U. S., at 127, n. 6.  But
the Court does not wish to be fettered by any such limitations on
its preferences.  The Court's statement that it is tempting to
acknowledge the authoritativeness of tradition in order to cur[b]
the discretion of federal judges, ante, at 5, is of course
rhetoric rather than reality; no government official is tempted
to place restraints upon his own freedom of action, which is why
Lord Acton did not say Power tends to purify.  The Court's
temptation is in the quite opposite and more natural direction
"towards systematically eliminating checks upon its own power;
and it succumbs."

 Beyond that brief summary of the essence of my position,
I will not swell the United States Reports with repetition of
what I have said before; and applying the rational basis test, I
would uphold the Pennsylvania statute in its entirety.  I must,
however, respond to a few of the more outrageous arguments in
today's opinion, which it is beyond human nature to leave
unanswered.  I shall discuss each of them under a quotation from
the Court's opinion to which they pertain.

 The inescapable fact is that adjudication of substantive
due process claims may call upon the Court in interpreting the
Constitution to exercise that same capacity which by tradition
courts always have exercised: reasoned judgment. Ante, at 7.

 Assuming that the question before us is to be resolved at
such a level of philosophical abstraction, in such isolation from
the traditions of American society, as by simply applying
reasoned judgment, I do not see how that could possibly have
produced the answer the Court arrived at in Roe v. Wade, 410 U.
S. 113 (1973).  Today's opinion describes the methodology of Roe,
quite accurately, as weighing against the woman's interest the
State's `important and legitimate interest in protecting the
potentiality of human life.' Ante, at 28-29 (quoting Roe, supra,
at 162).  But reasoned judgment does not begin by begging the
question, as Roe and subsequent cases unquestionably did by
assuming that what the State is protecting is the mere
potentiality of human life.  See, e.g., Roe, supra, at 162;
Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 61
(1976); Colautti v. Franklin, 439 U. S. 379, 386 (1979); Akron v.
Akron Center for Reproductive Health, Inc., 462 U. S. 416, 428
(1983) (Akron I); Planned Parenthood Assn. of Kansas City, Mo.,
Inc. v. Ashcroft, 462 U. S. 476, 482 (1983).  The whole argument
of abortion opponents is that what the Court calls the fetus and
what others call the unborn child is a human life.  Thus,
whatever answer Roe came up with after conducting its balancing
is bound to be wrong, unless it is correct that the human fetus
is in some critical sense merely potentially human.  There is of
course no way to determine that as a legal matter; it is in fact
a value judgment.  Some societies have considered newborn
children not yet human, or the incompetent elderly no longer so.

 The authors of the joint opinion, of course, do not
squarely contend that Roe v. Wade was a correct application of
reasoned judgment; merely that it must be followed, because of
stare decisis.  Ante, at 11, 18-19, 29.  But in their exhaustive
discussion of all the factors that go into the determination of
when stare decisis should be observed and when disregarded, they
never mention how wrong was the decision on its face?  Surely, if
[t]he Court's power lies . . . in its legitimacy, a product of
substance and perception, ante, at 23, the substance part of the
equation demands that plain error be acknowledged and eliminated.
Roe was plainly wrong "even on the Court's methodology of
reasoned judgment, and even more so (of course) if the proper
criteria of text and tradition are applied."

 The emptiness of the reasoned judgment that produced Roe
is displayed in plain view by the fact that, after more than 19
years of effort by some of the brightest (and most determined)
legal minds in the country, after more than 10 cases upholding
abortion rights in this Court, and after dozens upon dozens of
amicus briefs submitted in this and other cases, the best the
Court can do to explain how it is that the word liberty must be
thought to include the right to destroy human fetuses is to
rattle off a collection of adjectives that simply decorate a
value judgment and conceal a political choice.  The right to
abort, we are told, inheres in liberty because it is among a
person's most basic decisions, ante, at 7; it involves a most
intimate and personal choic[e], ante, at 9; it is central to
personal dignity and autonomy, ibid.; it originate[s] within the
zone of conscience and belief, ibid.; it is too intimate and
personal for state interference, ante, at 10; it reflects
intimate views of a deep, personal character, ante, at 11; it
involves intimate relationships, and notions of personal autonomy
and bodily integrity, ante, at 15; and it concerns a particularly
`important decisio[n],' ante, at 16 (citation omitted).  But it
is obvious to anyone applying reasoned judgment that the same
adjectives can be applied to many forms of conduct that this
Court (including one of the Justices in today's majority, see
Bowers v. Hardwick, 478 U. S. 186 (1986)) has held are not
entitled to constitutional protection "because, like abortion,
they are forms of conduct that have long been criminalized in
American society.  Those adjectives might be applied, for
example, to homosexual sodomy, polygamy, adult incest, and
suicide, all of which are equally intimate and deep[ly] personal
decisions involving personal autonomy and bodily integrity, and
all of which can constitutionally be proscribed because it is our
unquestionable constitutional tradition that they are
proscribable.  It is not reasoned judgment that supports the
Court's decision; only personal predilection.  Justice Curtis's
warning is as timely today as it was 135 years ago:

 [W]hen a strict interpretation of the Constitution,
according to the fixed rules which govern the interpretation of
laws, is abandoned, and the theoretical opinions of individuals
are allowed to control its meaning, we have no longer a
Constitution; we are under the government of individual men, who
for the time being have power to declare what the Constitution
is, according to their own views of what it ought to mean.  Dred
Scott v. Sandford, 19 How. 393, 621 (1857) (Curtis, J.,
dissenting).

 Liberty finds no refuge in a jurisprudence of doubt.
Ante, at 1.

 One might have feared to encounter this august and
sonorous phrase in an opinion defending the real Roe v. Wade,
rather than the revised version fabricated today by the authors
of the joint opinion.  The shortcomings of Roe did not include
lack of clarity: Virtually all regulation of abortion before the
third trimester was invalid.  But to come across this phrase in
the joint opinion "which calls upon federal district judges to
apply an undue burden standard as doubtful in application as it
is unprincipled in origin" is really more than one should have to
bear.

 The joint opinion frankly concedes that the amorphous
concept of undue burden has been inconsistently applied by the
Members of this Court in the few brief years since that test was
first explicitly propounded by Justice O'Connor in her dissent in
Akron I, supra.  See Ante, at 34.  Because the three Justices now
wish to set forth a standard of general application, the joint
opinion announces that it is important to clarify what is meant
by an undue burden, ibid.  I certainly agree with that, but I do
not agree that the joint opinion succeeds in the announced
endeavor.  To the contrary, its efforts at clarification make
clear only that the standard is inherently manipulable and will
prove hopelessly unworkable in practice.

 The joint opinion explains that a state regulation
imposes an undue burden if it has the purpose or effect of
placing a substantial obstacle in the path of a woman seeking an
abortion of a nonviable fetus.  Ibid.; see also ante, at 35-36.
An obstacle is substantial, we are told, if it is calculated[,]
[not] to inform the woman's free choice, [but to] hinder it.
Ante, at 34.  This latter statement cannot possibly mean what it
says.  Any regulation of abortion that is intended to advance
what the joint opinion concedes is the State's substantial
interest in protecting unborn life will be calculated [to] hinder
a decision to have an abortion.  It thus seems more accurate to
say that the joint opinion would uphold abortion regulations only
if they do not unduly hinder the woman's decision.  That, of
course, brings us right back to square one: Defining an undue
burden as an undue hindrance (or a substantial obstacle) hardly
clarifies the test.  Consciously or not, the joint opinion's
verbal shell game will conceal raw judicial policy choices
concerning what is appropriate abortion legislation.

 The ultimately standardless nature of the undue burden
inquiry is a reflection of the underlying fact that the concept
has no principled or coherent legal basis.  As The Chief Justice
points out, Roe's strict-scrutiny standard at least had a
recognized basis in constitutional law at the time Roe was
decided, ante, at 22, while [t]he same cannot be said for the
`undue burden' standard, which is created largely out of whole
cloth by the authors of the joint opinion, ibid.  The joint
opinion is flatly wrong in asserting that our jurisprudence
relating to all liberties save perhaps abortion has recognized
the permissibility of laws that do not impose an undue burden.
Ante, at 31.  It argues that the abortion right is similar to
other rights in that a law not designed to strike at the right
itself, [but which] has the incidental effect of making it more
difficult or more expensive to [exercise the right,] is not
invalid.  Ante, at 31-32.  I agree, indeed I have forcefully
urged, that a law of general applicability which places only an
incidental burden on a fundamental right does not infringe that
right, see R. A. V. v. St. Paul, 505 U. S. ___, ___ (1992) (slip
op., at 11); Employment Division, Dept. of Human Resources of
Ore. v. Smith, 494 U. S. 872, 878-882 (1990), but that principle
does not establish the quite different (and quite dangerous)
proposition that a law which directly regulates a fundamental
right will not be found to violate the Constitution unless it
imposes an undue burden.  It is that, of course, which is at
issue here: Pennsylvania has consciously and directly regulated
conduct that our cases have held is constitutionally protected.
The appropriate analogy, therefore, is that of a state law
requiring purchasers of religious books to endure a 24-hour
waiting period, or to pay a nominal additional tax of 1 cent.
The joint opinion cannot possibly be correct in suggesting that
we would uphold such legislation on the ground that it does not
impose a substantial obstacle to the exercise of First Amendment
rights.  The undue burden standard is not at all the generally
applicable principle the joint opinion pretends it to be; rather,
it is a unique concept created specially for this case, to
preserve some judicial foothold in this ill-gotten territory.  In
claiming otherwise, the three Justices show their willingness to
place all constitutional rights at risk in an effort to preserve
what they deem the central holding in Roe, ante, at 31.

 The rootless nature of the undue burden standard, a
phrase plucked out of context from our earlier abortion
decisions, see n. 3, supra, is further reflected in the fact that
the joint opinion finds it necessary expressly to repudiate the
more narrow formulations used in Justice O'Connor's earlier
opinions.  Ante, at 35.  Those opinions stated that a statute
imposes an undue burden if it imposes absolute obstacles or
severe limitations on the abortion decision, Akron I, 462 U. S.,
at 464 (O'Connor, J., dissenting) (emphasis added); see also
Thornburgh v. American College of Obstetricians and
Gynecologists, 476 U.S. 747, 828 (1986) (O'Connor, J.,
dissenting).  Those strong adjectives are conspicuously missing
from the joint opinion, whose authors have for some unexplained
reason now determined that a burden is undue if it merely imposes
a substantial obstacle to abortion decisions.  See, e.g., ante,
at 53, 59.  Justice O'Connor has also abandoned (again without
explanation) the view she expressed in Planned Parenthood Assn.
of Kansas City, Mo., Inc. v. Ashcroft, 462 U. S. 476 (1983)
(dissenting opinion), that a medical regulation which imposes an
undue burden could nevertheless be upheld if it reasonably
relate[s] to the preservation and protection of maternal health,
id., at 505 (citation and internal quotation marks omitted).  In
today's version, even health measures will be upheld only if they
do not constitute an undue burden, ante, at 35 (emphasis added).
Gone too is Justice O'Connor's statement that the State possesses
compelling interests in the protection of potential human
life . . . throughout pregnancy, Akron I, supra, at 461 (emphasis
added); see also Ashcroft, supra, at 505 (O'Connor, J.,
concurring in judgment in part and dissenting in part);
Thornburgh, supra, at 828 (O'Connor, J., dissenting); instead,
the State's interest in unborn human life is stealthily
downgraded to a merely substantial or profound interest,
ante, at 34, 36.  (That had to be done, of course, since
designating the interest as compelling throughout pregnancy would
have been, shall we say, a substantial obstacle to the joint
opinion's determined effort to reaffirm what it views as the
central holding of Roe.  See Akron I, 462 U.S., at 420, n. 1.)
And viability is no longer the arbitrary dividing line previously
decried by Justice O'Connor in Akron I, id., at 461; the Court
now announces that the attainment of viability may continue to
serve as the critical fact, ante, at 18.  It is difficult to
maintain the illusion that we are interpreting a Constitution
rather than inventing one, when we amend its provisions so
breezily.

 Because the portion of the joint opinion adopting and
describing the undue-burden test provides no more useful guidance
than the empty phrases discussed above, one must turn to the 23
pages applying that standard to the present facts for further
guidance.  In evaluating Pennsylvania's abortion law, the joint
opinion relies extensively on the factual findings of the
District Court, and repeatedly qualifies its conclusions by
noting that they are contingent upon the record developed in this
case.  Thus, the joint opinion would uphold the 24-hour waiting
period contained in the Pennsylvania statute's informed consent
provi- sion, 18 Pa. Cons. Stat. 3205 (1990), because the record
evidence shows that in the vast majority of cases, a 24-hour
delay does not create any appreciable health risk, ante, at 43.
The three Justices therefore conclude that on the record before
us, . . . we are not convinced that the 24-hour waiting period
constitutes an undue burden.  Ante, at 44-45.  The requirement
that a doctor provide the information pertinent to informed
consent would also be upheld because there is no evidence on this
record that [this requirement] would amount in practical terms to
a substantial obstacle to a woman seeking an abortion, ante, at
42.  Similarly, the joint opinion would uphold the reporting
requirements of the Act, 3207, 3214, because there is no . . .
showing on the record before us that these requirements
constitute a substantial obstacle to abortion decisions.  Ante,
at 59.  But at the same time the opinion pointedly observes that
these reporting requirements may increase the costs of abortions
and that at some point [that fact] could become a substantial
obstacle, ibid.  Most significantly, the joint opinion's
conclusion that the spousal notice requirement of the Act, see
3209, imposes an undue burden is based in large measure on the
District Court's detailed findings of fact, which the joint
opinion sets out at great length.  Ante, at 45-49.

 I do not, of course, have any objection to the notion
that, in applying legal principles, one should rely only upon the
facts that are contained in the record or that are properly
subject to judicial notice.  But what is remarkable about the
joint opinion's fact-intensive analysis is that it does not
result in any measurable clarification of the undue burden
standard.  Rather, the approach of the joint opinion is, for the
most part, simply to highlight certain facts in the record that
apparently strike the three Justices as particularly significant
in establishing (or refuting) the existence of an undue burden;
after describing these facts, the opinion then simply announces
that the provision either does or does not impose a substantial
obstacle or an undue burden.  See, e.g., ante, at 38, 42, 44-45,
45, 52, 53, 59.  We do not know whether the same conclusions
could have been reached on a different record, or in what
respects the record would have had to differ before an opposite
conclusion would have been appropriate.  The inherently
standardless nature of this inquiry invites the district judge to
give effect to his personal preferences about abortion.  By
finding and relying upon the right facts, he can invalidate, it
would seem, almost any abortion restriction that strikes him as
undue"subject, of course, to the possibility of being reversed by
a Circuit Court or Supreme Court that is as unconstrained in
reviewing his decision as he was in making it.

 To the extent I can discern any meaningful content in the
undue burden standard as applied in the joint opinion, it appears
to be that a State may not regulate abortion in such a way as to
reduce significantly its incidence.  The joint opinion repeatedly
emphasizes that an important factor in the undue burden analysis
is whether the regulation prevent[s] a significant number of
women from obtaining an abortion, ante, at 52; whether a
significant number of women . . . are likely to be deterred from
procuring an abortion, ibid.; and whether the regulation often
deters women from seeking abortions, ante, at 55-56.  We are not
told, however, what forms of deterrence are impermissible or what
degree of success in deterrence is too much to be tolerated.  If,
for example, a State required a woman to read a pamphlet
describing, with illustrations, the facts of fetal development
before she could obtain an abortion, the effect of such
legislation might be to deter a significant number of women from
procuring abortions, thereby seemingly allowing a district judge
to invalidate it as an undue burden.  Thus, despite flowery
rhetoric about the State's substantial and profound interest in
potential human life, and criticism of Roe for under-valuing that
interest, the joint opinion permits the State to pursue that
interest only so long as it is not too successful.  As Justice
Blackmun recognizes (with evident hope), ante, at 5, the undue
burden standard may ultimately require the invalidation of each
provision upheld today if it can be shown, on a better record,
that the State is too effectively express[ing] a preference for
childbirth over abortion, ante, at 41.  Reason finds no refuge in
this jurisprudence of confusion.

 While we appreciate the weight of the arguments . . .
that Roe should be overruled, the reservations any of us may have
in reaffirming the central holding of Roe are outweighed by the
explication of individual liberty we have given combined with the
force of stare decisis. Ante, at 11.

 The Court's reliance upon stare decisis can best be
described as contrived.  It insists upon the necessity of
adhering not to all of Roe, but only to what it calls the central
holding.  It seems to me that stare decisis ought to be applied
even to the doctrine of stare decisis, and I confess never to
have heard of this new,
keep-what-you-want-and-throw-away-the-rest version.  I wonder
whether, as applied to Marbury v. Madison, 1 Cranch 137 (1803),
for example, the new version of stare decisis would be satisfied
if we allowed courts to review the constitutionality of only
those statutes that (like the one in Marbury) pertain to the
jurisdiction of the courts.

 I am certainly not in a good position to dispute that the
Court has saved the central holding of Roe, since to do that
effectively I would have to know what the Court has saved, which
in turn would require me to understand (as I do not) what the
undue burden test means.  I must confess, however, that I have
always thought, and I think a lot of other people have always
thought, that the arbitrary trimester framework, which the Court
today discards, was quite as central to Roe as the arbitrary
viability test, which the Court today retains.  It seems
particularly ungrateful to carve the trimester framework out of
the core of Roe, since its very rigidity (in sharp contrast to
the utter indeterminability of the undue burden test) is probably
the only reason the Court is able to say, in urging stare
decisis, that Roe has in no sense proven `unworkable,' ante, at
13.  I suppose the Court is entitled to call a central holding
whatever it wants to call a central holding "which is, come to
think of it, perhaps one of the difficulties with this modified
version of stare decisis.  I thought I might note, however, that
the following portions of Roe have not been saved:

*Under Roe, requiring that a woman seeking an abortion be
provided truthful information about abortion before giving
informed written consent is unconstitutional, if the information
is designed to influence her choice, Thornburgh, 476 U. S., at
759-765; Akron I, 462 U. S., at 442-445.  Under the joint
opinion's undue burden regime (as applied today, at least) such a
requirement is constitu- tional, ante, at 38-42.

*Under Roe, requiring that information be provided by a doctor,
rather than by nonphysician counselors, is unconstitutional,
Akron I, supra, at 446-449.  Under the undue burden regime (as
applied today, at least) it is not, ante, at 42.

*Under Roe, requiring a 24-hour waiting period between the time
the woman gives her informed consent and the time of the abortion
is unconstitutional, Akron I, supra, at 449-451.  Under the undue
burden regime (as applied today, at least) it is not, ante, at
43-45.

*Under Roe, requiring detailed reports that include demographic
data about each woman who seeks an abortion and various
information about each abortion is unconstitutional, Thornburgh,
supra, at 765-768.  Under the undue burden regime (as applied
today, at least) it generally is not, ante, at 58-59.

 Where, in the performance of its judicial duties, the
Court decides a case in such a way as to resolve the sort of
intensely divisive controversy reflected in Roe . . . , its
decision has a dimension that the resolution of the normal case
does not carry.  It is the dimension present whenever the Court's
interpretation of the Constitution calls the contending sides of
a national controversy to end their national division by
accepting a common mandate rooted in the Constitution.
Ante, at 24.

 The Court's description of the place of Roe in the social
history of the United States is unrecognizable.  Not only did Roe
not, as the Court suggests, resolve the deeply divisive issue of
abortion; it did more than anything else to nourish it, by
elevating it to the national level where it is infinitely more
difficult to resolve.  National politics were not plagued by
abortion protests, national abortion lobbying, or abortion
marches on Congress, before Roe v. Wade was decided.  Profound
disagreement existed among our citizens over the issue "as it
does over other issues, such as the death penalty" but that
disagreement was being worked out at the state level.  As with
many other issues, the division of sentiment within each State
was not as closely balanced as it was among the population of the
Nation as a whole, meaning not only that more people would be
satis- fied with the results of state-by-state resolution, but
also that those results would be more stable.  Pre-Roe, moreover,
political compromise was possible.

 Roe's mandate for abortion-on-demand destroyed the
compromises of the past, rendered compromise impossible for the
future, and required the entire issue to be resolved uniformly,
at the national level.  At the same time, Roe created a vast new
class of abortion consumers and abortion proponents by
eliminating the moral opprobrium that had attached to the act.
(If the Constitution guarantees abor-tion, how can it be bad?"
not an accurate line of thought, but a natural one.) Many favor
all of those developments, and it is not for me to say that they
are wrong.  But to portray Roe as the statesmanlike settlement of
a divisive issue, a jurisprudential Peace of Westphalia that is
worth preserving, is nothing less than Orwellian.  Roe fanned
into life an issue that has inflamed our national politics in
general, and has obscured with its smoke the selection of
Justices to this Court in particular, ever since.  And by keeping
us in the abortion-umpiring business, it is the perpetuation of
that disruption, rather than of any pax Roeana, that the Court's
new majority decrees.

 [T]o overrule under fire . . . would subvert the Court's
legitimacy . . . .

 To all those who will be . . . tested by following, the
Court implicitly undertakes to remain stead- fast . . . .  The
promise of constancy, once given, binds its maker for as long as
the power to stand by the decision survives and . . . the
commitment [is not] obsolete. . . .

 [The American people's] belief in themselves as . . . a
people [who aspire to live according to the rule of law] is not
readily separable from their understanding of the Court invested
with the authority to decide their constitutional cases and speak
before all others for their constitutional ideals.  If the
Court's legitimacy should be undermined, then, so would the
country be in its very ability to see itself through its
constitutional ideals.

 Ante, at 25-26.

 The Imperial Judiciary lives.  It is instructive to
compare this Nietzschean vision of us unelected, life-tenured
judges" leading a Volk who will be tested by following, and whose
very belief in themselves is mystically bound up in their
understanding of a Court that speak[s] before all others for
their constitutional ideals" with the somewhat more modest role
envisioned for these lawyers by the Founders.

 The judiciary . . . has . . . no direction either of the
strength or of the wealth of the society, and can take no active
resolution whatever.  It may truly be said to have neither Force
nor Will but merely judgment . . . .  The Federalist No. 78, pp.
393-394 (G. Wills ed.  1982). Or, again, to compare this ecstasy
of a Supreme Court in which there is, especially on controversial
matters, no shadow of change or hint of alteration ( There is a
limit to the amount of error that can plausibly be imputed to
prior courts, ante, at 24), with the more democratic views of a
more humble man:

 [T]he candid citizen must confess that if the policy of
the Government upon vital questions affecting the whole people is
to be irrevocably fixed by decisions of the Supreme Court, . . .
the people will have ceased to be their own rulers, having to
that extent practically resigned their Government into the hands
of that eminent tribunal.  A. Lincoln, First Inaugural Address
(Mar. 4, 1861), reprinted in Inaugural Addresses of the
Presidents of the United States, S. Doc. No. 101-10, p. 139
(1989).  It is particularly difficult, in the circumstances of
the present decision, to sit still for the Court's lengthy
lecture upon the virtues of constancy, ante, at 26, of
remain[ing] steadfast, id., at 25, of adhering to principle, id.,
passim.  Among the five Justices who purportedly adhere to Roe,
at most three agree upon the principle that constitutes adherence
(the joint opinion's undue burden standard)"and that
principle is inconsistent with Roe, see 410 U. S., at 154-156.
To make matters worse, two of the three, in order thus to remain
steadfast, had to abandon previously stated positions.  See n. 4
supra; see supra, at 11-12.  It is beyond me how the Court
expects these accommodations to be accepted as grounded truly in
principle, not as compromises with social and political pressures
having, as such, no bearing on the principled choices that the
Court is obliged to make.  Ante, at 23.  The only principle the
Court adheres to, it seems to me, is the principle that the Court
must be seen as standing by Roe.  That is not a principle of law
(which is what I thought the Court was talking about), but a
principle of Realpolitik" and a wrong one at that.

 I cannot agree with, indeed I am appalled by, the Court's
suggestion that the decision whether to stand by an erroneous
constitutional decision must be strongly influenced"against
overruling, no less"by the substantial and continuing public
opposition the decision has generated.  The Court's judgment that
any other course would  subvert the Court's legitimacy must be
another consequence of reading the error-filled history book that
described the deeply divided country brought together by Roe.  In
my history-book, the Court was covered with dishonor and deprived
of legitimacy by Dred Scott v. Sandford, 19 How. 393 (1857), an
erroneous (and widely opposed) opinion that it did not abandon,
rather than by West Coast Hotel Co. v. Parrish, 300 U. S. 379
(1937), which produced the famous switch in time from the Court's
erroneous (and widely opposed) constitutional opposition to the
social measures of the New Deal.  (Both Dred Scott and one line
of the cases resisting the New Deal rested upon the concept of
substantive due process that the Court praises and employs today.
Indeed, Dred Scott was very possibly the first application of
substantive due process in the Supreme Court, the original
precedent for Lochner v. New York and Roe v. Wade.  D. Currie,
The Constitution in the Supreme Court 271 (1985) (footnotes
omitted).)

 But whether it would subvert the Court's legitimacy or
not, the notion that we would decide a case differently from the
way we otherwise would have in order to show that we can stand
firm against public disapproval is frightening.  It is a bad
enough idea, even in the head of someone like me, who believes
that the text of the Constitution, and our traditions, say what
they say and there is no fiddling with them.  But when it is in
the mind of a Court that believes the Constitution has an
evolving meaning, see ante, at 6; that the Ninth Amendment's
reference to othe[r] rights is not a disclaimer, but a charter
for action, ibid.; and that the function of this Court is to
speak before all others for [the people's] constitutional ideals
unrestrained by meaningful text or tradition"then the notion that
the Court must adhere to a decision for as long as the decision
faces great opposition and the Court is under fire acquires a
character of almost czarist arrogance.  We are offended by these
marchers who descend upon us, every year on the anniversary of
Roe, to protest our saying that the Constitution requires what
our society has never thought the Constitution requires.  These
people who refuse to be tested by following must be taught a
lesson.  We have no Cossacks, but at least we can stubbornly
refuse to abandon an erroneous opinion that we might otherwise
change"to show how little they intimidate us.

 Of course, as the Chief Justice points out, we have been
subjected to what the Court calls political pressure by both
sides of this issue.  Ante, at 21.  Maybe today's decision not to
over- rule Roe will be seen as buckling to pressure from that
direction.  Instead of engaging in the hopeless task of
predicting public perception "a job not for lawyers but for
political campaign managers" the Justices should do what is
legally right by asking two questions: (1) Was Roe correctly
decided?  (2) Has Roe succeeded in producing a settled body of
law?  If the answer to both questions is no, Roe should
undoubtedly be overruled.

 In truth, I am as distressed as the Court is "and
expressed my distress several years ago, see Webster, 492 U. S.,
at 535" about the political pressure directed to the Court: the
marches, the mail, the protests aimed at inducing us to change
our opinions.  How upsetting it is, that so many of our citizens
(good people, not lawless ones, on both sides of this abortion
issue, and on various sides of other issues as well) think that
we Justices should properly take into account their views, as
though we were engaged not in ascertaining an objective law but
in determining some kind of social consensus.  The Court would
profit, I think, from giving less attention to the fact of this
distressing phenomenon, and more attention to the cause of it.
That cause permeates today's opinion: a new mode of
constitutional adjudication that relies not upon text and
traditional practice to determine the law, but upon what the
Court calls reasoned judgment, ante, at 7, which turns out to be
nothing but philosophical predilection and moral intuition.  All
manner of liberties, the Court tells us, inhere in the
Constitution and are enforceable by this Court "not just those
mentioned in the text or established in the traditions of our
society."  Ante, at 5-6.  Why even the Ninth Amendment "which
says only that [t]he enumeration in the Constitution of certain
rights shall not be construed to deny or disparage others
retained by the people" is, despite our contrary understanding
for almost 200 years, a literally boundless source of additional,
unnamed, unhinted-at rights, definable and enforceable by us,
through reasoned judgment.  Ante, at 6-7.

 What makes all this relevant to the bothersome
application of political pressure against the Court are the twin
facts that the American people love democracy and the American
people are not fools.  As long as this Court thought (and the
people thought) that we Justices were doing essentially lawyers'
work up here"reading text and discerning our society's
traditional understanding of that text"the public pretty much
left us alone.  Texts and traditions are facts to study, not
convictions to demonstrate about.  But if in reality our process
of constitutional adjudication consists primarily of making value
judgments; if we can ignore a long and clear tradition clarifying
an ambiguous text, as we did, for example, five days ago in
declaring unconstitutional invocations and benedictions at
public- high-school graduation ceremonies, Lee v. Weisman, 505 U.
S. ___ (1992); if, as I say, our pronouncement of constitutional
law rests primarily on value judgments, then a free and
intelligent people's attitude towards us can be expected to be
(ought to be) quite different.  The people know that their value
judgments are quite as good as those taught in any law school
"maybe better."  If, indeed, the liberties protected by the
Constitution are, as the Court says, undefined and unbounded,
then the people should demonstrate, to protest that we do not
implement their values instead of ours.  Not only that, but
confirmation hearings for new Justices should deteriorate into
question-and-answer sessions in which Senators go through a list
of their constituents' most favored and most disfavored alleged
constitu- tional rights, and seek the nominee's commitment to
support or oppose them.  Value judgments, after all, should be
voted on, not dictated; and if our Constitution has somehow
accidently committed them to the Supreme Court, at least we can
have a sort of plebiscite each time a new nominee to that body is
put forward.  Justice Blackmun not only regards this prospect
with equanimity, he solicits it, ante, at 22-23.

 * * *

 There is a poignant aspect to today's opinion.  Its
length, and what might be called its epic tone, suggest that its
authors believe they are bringing to an end a troublesome era in
the history of our Nation and of our Court.  It is the dimension
of authority, they say, to cal[l] the contending sides of
national controversy to end their national division by accepting
a common mandate rooted in the Constitution.  Ante, at 24.

 There comes vividly to mind a portrait by Emanuel Leutze
that hangs in the Harvard Law School:  Roger Brooke Taney,
painted in 1859, the 82d year of his life, the 24th of his Chief
Justiceship, the second after his opinion in Dred Scott.  He is
all in black, sitting in a shadowed red armchair, left hand
resting upon a pad of paper in his lap, right hand hanging
limply, almost lifelessly, beside the inner arm of the chair.  He
sits facing the viewer, and staring straight out.  There seems to
be on his face, and in his deep-set eyes, an expression of
profound sadness and disillusionment.  Perhaps he always looked
that way, even when dwelling upon the happiest of thoughts.  But
those of us who know how the lustre of his great Chief
Justiceship came to be eclipsed by Dred Scott cannot help
believing that he had that case "its already apparent
consequences for the Court, and its soon-to-be-played-out
consequences for the Nation" burning on his mind.  I expect that
two years earlier he, too, had thought himself  call[ing] the
contending sides of national controversy to end their national
division by accepting a common mandate rooted in the
Constitution.

 It is no more realistic for us in this case, than it was
for him in that, to think that an issue of the sort they both
involved "an issue involving life and death, freedom and
subjugation" can be speedily and finally settled by the Supreme
Court, as President James Buchanan in his inaugural address said
the issue of slavery in the territories would be.  See Inaugural
Addresses of the Presidents of the United States, S. Doc. No.
101-10, p. 126 (1989).  Quite to the contrary, by foreclosing all
democratic outlet for the deep passions this issue arouses, by
banishing the issue from the political forum that gives all
participants, even the losers, the satisfaction of a fair hearing
and an honest fight, by continuing the imposition of a rigid
national rule instead of allowing for regional differences, the
Court merely prolongs and intensifies the anguish.

 We should get out of this area, where we have no right to
be,  and where we do neither ourselves nor the country any good
by remaining.