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NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
PLANNED PARENTHOOD OF SOUTHEASTERN
PENNSYLVANIA et al. v. CASEY, GOVERNOR OF
PENNSYLVANIA, et al.
certiorari to the united states court of appeals for
the third circuit
No. 91-744. Argued April 22, 1992-Decided June 29, 1992
At issue are five provisions of the Pennsylvania Abortion Control Act
of 1982: 3205, which requires that a woman seeking an abortion
give her informed consent prior to the procedure, and specifies that
she be provided with certain information at least 24 hours before the
abortion is performed; 3206, which mandates the informed consent
of one parent for a minor to obtain an abortion, but provides a
judicial bypass procedure; 3209, which commands that, unless
certain exceptions apply, a married woman seeking an abortion must
sign a statement indicating that she has notified her husband; 3203,
which defines a ``medical emergency'' that will excuse compliance
with the foregoing requirements; and 3207(b), 3214(a), and 3214(f),
which impose certain reporting requirements on facilities providing
abortion services. Before any of the provisions took effect, the
petitioners, five abortion clinics and a physician representing himself
and a class of doctors who provide abortion services, brought this suit
seeking a declaratory judgment that each of the provisions was
unconstitutional on its face, as well as injunctive relief. The District
Court held all the provisions unconstitutional and permanently
enjoined their enforcement. The Court of Appeals affirmed in part
and reversed in part, striking down the husband notification provi-
sion but upholding the others.
Held:The judgment in No. 91-902 is affirmed; the judgment in No.
91-744 is affirmed in part and reversed in part, and the case is
remanded.
947 F.2d 682: No. 91-902, affirmed; No. 91-744, affirmed in part,
reversed in part, and remanded.
Justice O'Connor, Justice Kennedy, and Justice Souter
delivered the opinion of the Court with respect to Parts I, II, and III,
concluding that:
1.Consideration of the fundamental constitutional question re-
solved by Roe v. Wade, 410 U.S. 113, principles of institutional
integrity, and the rule of stare decisis require that Roe's essential
holding be retained and reaffirmed as to each of its three parts: (1)
a recognition of a woman's right to choose to have an abortion before
fetal viability and to obtain it without undue interference from the
State, whose previability interests are not strong enough to support
an abortion prohibition or the imposition of substantial obstacles to
the woman's effective right to elect the procedure; (2) a confirmation
of the State's power to restrict abortions after viability, if the law
contains exceptions for pregnancies endangering a woman's life or
health; and (3) the principle that the State has legitimate interests
from the outset of the pregnancy in protecting the health of the
woman and the life of the fetus that may become a child. Pp.1-27.
(a)A reexamination of the principles that define the woman's
rights and the State's authority regarding abortions is required by
the doubt this Court's subsequent decisions have cast upon the
meaning and reach of Roe's central holding, by the fact that The
Chief Justice would overrule Roe, and by the necessity that state
and federal courts and legislatures have adequate guidance on the
subject. Pp.1-3.
(b)Roe determined that a woman's decision to terminate her
pregnancy is a ``liberty'' protected against state interference by the
substantive component of the Due Process Clause of the Fourteenth
Amendment. Neither the Bill of Rights nor the specific practices of
States at the time of the Fourteenth Amendment's adoption marks
the outer limits of the substantive sphere of such ``liberty.'' Rather,
the adjudication of substantive due process claims may require this
Court to exercise its reasoned judgment in determining the bound-
aries between the individual's liberty and the demands of organized
society. The Court's decisions have afforded constitutional protection
to personal decisions relating to marriage, see, e. g., Loving v.
Virginia, 388 U.S. 1, procreation, Skinner v. Oklahoma, 316 U.S.
535, family relationships, Prince v. Massachusetts, 321 U.S. 158,
child rearing and education, Pierce v. Society of Sisters, 268 U.S.
510, and contraception, see, e. g., Griswold v. Connecticut, 381 U.S.
479, and have recognized the right of the individual to be free from
unwarranted governmental intrusion into matters so fundamentally
affecting a person as the decision whether to bear or beget a child,
Eisenstadt v. Baird, 405 U.S. 438, 453. Roe's central holding
properly invoked the reasoning and tradition of these precedents.
Pp.4-11.
(c)Application of the doctrine of stare decisis confirms that Roe's
essential holding should be reaffirmed. In reexamining that holding,
the Court's judgment is informed by a series of prudential and
pragmatic considerations designed to test the consistency of overrul-
ing the holding with the ideal of the rule of law, and to gauge the
respective costs of reaffirming and overruling. Pp.11-13.
(d)Although Roe has engendered opposition, it has in no sense
proven unworkable, representing as it does a simple limitation
beyond which a state law is unenforceable. P.13.
(e)The Roe rule's limitation on state power could not be repudi-
ated without serious inequity to people who, for two decades of
economic and social developments, have organized intimate relation-
ships and made choices that define their views of themselves and
their places in society, in reliance on the availability of abortion in
the event that contraception should fail. The ability of women to
participate equally in the economic and social life of the Nation has
been facilitated by their ability to control their reproductive lives.
The Constitution serves human values, and while the effect of
reliance on Roe cannot be exactly measured, neither can the certain
costs of overruling Roe for people who have ordered their thinking
and living around that case be dismissed. Pp.13-14.
(f)No evolution of legal principle has left Roe's central rule a
doctrinal anachronism discounted by society. If Roe is placed among
the cases exemplified by Griswold, supra, it is clearly in no jeopardy,
since subsequent constitutional developments have neither disturbed,
nor do they threaten to diminish, the liberty recognized in such
cases. Similarly, if Roe is seen as stating a rule of personal autono-
my and bodily integrity, akin to cases recognizing limits on govern-
mental power to mandate medical treatment or to bar its rejection,
this Court's post-Roe decisions accord with Roe's view that a State's
interest in the protection of life falls short of justifying any plenary
override of individual liberty claims. See, e. g., Cruzan v. Director,
Missouri Dept. of Health, 497 U.S. ___, ___. Finally, if Roe is
classified as sui generis, there clearly has been no erosion of its
central determination. It was expressly reaffirmed in Akron v. Akron
Center for Reproductive Health, 462 U.S. 416 (Akron I), and Thorn-
burgh v. American College of Obstetricians and Gynecologists,
476 U.S. 747; and, in Webster v. Reproductive Health Services, 492
U.S. 490, a majority either voted to reaffirm or declined to address
the constitutional validity of Roe's central holding. Pp.14-17.
(g)No change in Roe's factual underpinning has left its central
holding obsolete, and none supports an argument for its overruling.
Although subsequent maternal health care advances allow for later
abortions safe to the pregnant woman, and post-Roe neonatal care
developments have advanced viability to a point somewhat earlier,
these facts go only to the scheme of time limits on the realization of
competing interests. Thus, any later divergences from the factual
premises of Roe have no bearing on the validity of its central holding,
that viability marks the earliest point at which the State's interest
in fetal life is constitutionally adequate to justify a legislative ban on
nontherapeutic abortions. The soundness or unsoundness of that
constitutional judgment in no sense turns on when viability occurs.
Whenever it may occur, its attainment will continue to serve as the
critical fact. Pp.17-18.
(h)A comparison between Roe and two decisional lines of com-
parable significance-the line identified with Lochner v. New York,
198 U.S. 45, and the line that began with Plessy v. Ferguson, 163
U.S. 537-confirms the result reached here. Those lines were
overruled-by, respectively, West Coast Hotel Co. v. Parrish, 330
U.S. 379, and Brown v. Board of Education, 347 U.S. 483-on the
basis of facts, or an understanding of facts, changed from those which
furnished the claimed justifications for the earlier constitutional
resolutions. The overruling decisions were comprehensible to the
Nation, and defensible, as the Court's responses to changed circum-
stances. In contrast, because neither the factual underpinnings of
Roe's central holding nor this Court's understanding of it has
changed (and because no other indication of weakened precedent has
been shown), the Court could not pretend to be reexamining Roe with
any justification beyond a present doctrinal disposition to come out
differently from the Roe Court. That is an inadequate basis for
overruling a prior case. Pp.19-22.
(i)Overruling Roe's central holding would not only reach an
unjustifiable result under stare decisis principles, but would seriously
weaken the Court's capacity to exercise the judicial power and to
function as the Supreme Court of a Nation dedicated to the rule of
law. Where the Court acts to resolve the sort of unique, intensely
divisive controversy reflected in Roe, its decision has a dimension not
present in normal cases and is entitled to rare precedential force to
counter the inevitable efforts to overturn it and to thwart its imple-
mentation. Only the most convincing justification under accepted
standards of precedent could suffice to demonstrate that a later
decision overruling the first was anything but a surrender to political
pressure and an unjustified repudiation of the principle on which the
Court staked its authority in the first instance. Moreover, the
country's loss of confidence in the Judiciary would be underscored by
condemnation for the Court's failure to keep faith with those who
support the decision at a cost to themselves. A decision to overrule
Roe's essential holding under the existing circumstances would
address error, if error there was, at the cost of both profound and
unnecessary damage to the Court's legitimacy and to the Nation's
commitment to the rule of law. Pp.22-27.
Justice O'Connor, Justice Kennedy, and Justice Souter
concluded in Part IV that an examination of Roe v. Wade, 410 U.S.
113, and subsequent cases, reveals a number of guiding principles
that should control the assessment of the Pennsylvania statute:
(a)To protect the central right recognized by Roe while at the
same time accommodating the State's profound interest in potential
life, see, id., at 162, the undue burden standard should be employed.
An undue burden exists, and therefore a provision of law is invalid,
if its purpose or effect is to place substantial obstacles in the path of
a woman seeking an abortion before the fetus attains viability.
(b)Roe's rigid trimester framework is rejected. To promote the
State's interest in potential life throughout pregnancy, the State may
take measures to ensure that the woman's choice is informed.
Measures designed to advance this interest should not be invalidated
if their purpose is to persuade the woman to choose childbirth over
abortion. These measures must not be an undue burden on the
right.
(c)As with any medical procedure, the State may enact regulations
to further the health or safety of a woman seeking an abortion,
but may not impose unnecessary health regulations that present a
substantial obstacle to a woman seeking an abortion.
(d)Adoption of the undue burden standard does not disturb Roe's
holding that regardless of whether exceptions are made for particular
circumstances, a State may not prohibit any woman from making the
ultimate decision to terminate her pregnancy before viability.
(e)Roe's holding that ``subsequent to viability, the State in promot-
ing its interest in the potentiality of human life may, if it chooses,
regulate, and even proscribe, abortion except where it is necessary,
in appropriate medical judgment, for the preservation of the life or
health of the mother'' is also reaffirmed. Id., at 164-165. Pp.27-37.
Justice O'Connor, Justice Kennedy, and Justice Souter
delivered the opinion of the Court with respect to Parts V-A and
V-C, concluding that:
1.As construed by the Court of Appeals, 3203's medical emer-
gency definition is intended to assure that compliance with the
State's abortion regulations would not in any way pose a significant
threat to a woman's life or health, and thus does not violate the
essential holding of Roe, supra, at 164. Although the definition could
be interpreted in an unconstitutional manner, this Court defers to
lower federal court interpretations of state law unless they amount
to ``plain'' error. Pp.38-39.
2.Section 3209's husband notification provision constitutes an
undue burden and is therefore invalid. A significant number of
women will likely be prevented from obtaining an abortion just as
surely as if Pennsylvania had outlawed the procedure entirely. The
fact that 3209 may affect fewer than one percent of women seeking
abortions does not save it from facial invalidity, since the proper
focus of constitutional inquiry is the group for whom the law is a
restriction, not the group for whom it is irrelevant. Furthermore, it
cannot be claimed that the father's interest in the fetus' welfare is
equal to the mother's protected liberty, since it is an inescapable
biological fact that state regulation with respect to the fetus will have
a far greater impact on the pregnant woman's bodily integrity than
it will on the husband. Section 3209 embodies a view of marriage
consonant with the common-law status of married women but repug-
nant to this Court's present understanding of marriage and of the
nature of the rights secured by the Constitution. See Planned
Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 69. Pp.46-58.
Justice O'Connor, Justice Kennedy, and Justice Souter, joined
by Justice Stevens, concluded in Part V-E that all of the statute's
recordkeeping and reporting requirements, except that relating to
spousal notice, are constitutional. The reporting provision relating
to the reasons a married woman has not notified her husband that
she intends to have an abortion must be invalidated because it places
an undue burden on a woman's choice. Pp.59-60.
Justice O'Connor, Justice Kennedy, and Justice Souter
concluded in Parts V-B and V-D that:
1.Section 3205's informed consent provision is not an undue
burden on a woman's constitutional right to decide to terminate a
pregnancy. To the extent Akron I, 462 U.S., at 444, and Thorn-
burgh, 476 U.S., at 762, find a constitutional violation when the
government requires, as it does here, the giving of truthful, nonmis-
leading information about the nature of the abortion procedure, the
attendant health risks and those of childbirth, and the ``probable
gestational age'' of the fetus, those cases are inconsistent with Roe's
acknowledgement of an important interest in potential life, and are
overruled. Requiring that the woman be informed of the availability
of information relating to the consequences to the fetus does not
interfere with a constitutional right of privacy between a pregnant
woman and her physician, since the doctor-patient relation is deriva-
tive of the woman's position, and does not underlie or override the
abortion right. Moreover, the physician's First Amendment rights not
to speak are implicated only as part of the practice of medicine,
which is licensed and regulated by the State. There is no evidence
here that requiring a doctor to give the required information would
amount to a substantial obstacle to a woman seeking abortion.
The premise behind Akron I's invalidation of a waiting period
between the provision of the information deemed necessary to in-
formed consent and the performance of an abortion, id., at 450, is
also wrong. Although 3205's 24-hour waiting period may make
some abortions more expensive and less convenient, it cannot be said
that it is invalid on the present record and in the context of this
facial challenge. Pp.39-46.
2.Section 3206's one-parent consent requirement and judicial
bypass procedure are constitutional. See, e. g., Ohio v. Akron Center
for Reproductive Health, 497 U.S. ___, ___. Pp.58-59.
Justice Blackmun concluded that application of the strict scrutiny
standard of review required by this Court's abortion precedents
results in the invalidation of all the challenged provisions in the
Pennsylvania statute, including the reporting requirements, and
therefore concurred in the judgment that the requirement that a
pregnant woman report her reasons for failing to provide spousal
notice is unconstitutional. Pp.10, 14-15.
The Chief Justice, joined by Justice White, Justice Scalia, and
Justice Thomas, concluded that:
1.Although Roe v. Wade, 410 U.S. 113, is not directly implicated
by the Pennsylvania statute, which simply regulates and does not
prohibit abortion, a reexamination of the ``fundamental right'' Roe
accorded to a woman's decision to abort a fetus, with the concomitant
requirement that any state regulation of abortion survive ``strict
scrutiny,'' id., at 154-156, is warranted by the confusing and uncer-
tain state of this Court's post-Roe decisional law. A review of post-
Roe cases demonstrates both that they have expanded upon Roe in
imposing increasingly greater restrictions on the States, see Thorn-
burgh v. American College of Obstetricians and Gynecologists,
476 U.S. 747, 783 (Burger, C. J., dissenting), and that the Court has
become increasingly more divided, none of the last three such deci-
sions having commanded a majority opinion, see Ohio v. Akron
Center for Reproductive Health, 497 U.S. 502; Hodgson v. Minnesota,
497 U.S. 417; Webster v. Reproductive Health Services, 492 U.S.
490. This confusion and uncertainty complicated the task of the
Court of Appeals, which concluded that the ``undue burden'' standard
adopted by Justice O'Connor in Webster and Hodgson governs the
present cases. Pp.1-8.
2.The Roe Court reached too far when it analogized the right to
abort a fetus to the rights involved in Pierce v. Society of Sisters, 268
U.S. 510; Meyer v. Nebraska, 262 U.S. 390; Loving v. Virginia, 388
U.S. 1; and Griswold v. Connecticut, 381 U.S. 479, and thereby
deemed the right to abortion to be ``fundamental.'' None of these
decisions endorsed an all-encompassing ``right of privacy,'' as Roe,
supra, at 152-153, claimed. Because abortion involves the purposeful
termination of potential life, the abortion decision must be recognized
as sui generis, different in kind from the rights protected in the
earlier cases under the rubric of personal or family privacy and
autonomy. And the historical traditions of the American people-as
evidenced by the English common law and by the American abortion
statutes in existence both at the time of the Fourteenth Amendment's
adoption and Roe's issuance-do not support the view that the right
to terminate one's pregnancy is ``fundamental.'' Thus, enactments
abridging that right need not be subjected to strict scrutiny.
Pp.8-11.
3.The undue burden standard adopted by the joint opinion of
Justices O'Connor, Kennedy, and Souter has no basis in constitu-
tional law and will not result in the sort of simple limitation, easily
applied, which the opinion anticipates. To evaluate abortion regula-
tions under that standard, judges will have to make the subjective,
unguided determination whether the regulations place ``substantial
obstacles'' in the path of a woman seeking an abortion, undoubtedly
engendering a variety of conflicting views. The standard presents
nothing more workable than the trimester framework the joint
opinion discards, and will allow the Court, under the guise of the
Constitution, to continue to impart its own preferences on the States
in the form of a complex abortion code. Pp.22-23.
4.The correct analysis is that set forth by the plurality opinion in
Webster, supra: 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 legiti-
mate state interest. P.24.
5.Section 3205's requirements are rationally related to the State's
legitimate interest in assuring that a woman's consent to an abortion
be fully informed. The requirement that a physician disclose certain
information about the abortion procedure and its risks and alterna-
tives is not a large burden and is clearly related to maternal health
and the State's interest in informed consent. In addition, a State
may rationally decide that physicians are better qualified than
counselors to impart this information and answer questions about the
abortion alternatives' medical aspects. The requirement that infor-
mation be provided about the availability of paternal child support
and state-funded alternatives is also related to the State's informed
consent interest and furthers the State's interest in preserving
unborn life. That such information might create some uncertainty
and persuade some women to forgo abortions only demonstrates that
it might make a difference and is therefore relevant to a woman's
informed choice. In light of this plurality's rejection of Roe's ``funda-
mental right'' approach to this subject, the Court's contrary holding
in Thornburgh is not controlling here. For the same reason, this
Court's previous holding invalidating a State's 24-hour mandatory
waiting period should not be followed. The waiting period helps
ensure that a woman's decision to abort is a well-considered one, and
rationally furthers the State's legitimate interest in maternal health
and in unborn life. It may delay, but does not prohibit, abortions;
and both it and the informed consent provisions do not apply in
medical emergencies. Pp.24-27.
6.The statute's parental consent provision is entirely consistent
with this Court's previous decisions involving such requirements.
See, e. g., Planned Parenthood Association of Kansas City, Missouri,
Inc. v. Ashcroft, 462 U.S. 476. It is reasonably designed to further
the State's important 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, supra, at 444. Pp.27-29.
7.Section 3214(a)'s requirement that abortion facilities file a report
on each abortion is constitutional because it rationally furthers the
State's legitimate interests in advancing the state of medical knowl-
edge concerning maternal health and prenatal life, in gathering
statistical information with respect to patients, and in ensuring
compliance with other provisions of the Act, while keeping the reports
completely confidential. Public disclosure of other reports made by
facilities receiving public funds-those identifying the facilities and
any parent, subsidiary, or affiliated organizations, 3207(b), and
those revealing the total number of abortions performed, broken down
by trimester, 3214(f)-are rationally related to the State's legitimate
interest in informing taxpayers as to who is benefiting from public
funds and what services the funds are supporting; and records
relating to the expenditure of public funds are generally available to
the public under Pennsylvania law. Pp.34-35.
Justice Scalia, joined by The Chief Justice, Justice White, and
Justice Thomas, concluded that a woman's decision to abort her
unborn child is not a constitutionally protected ``liberty'' because (1)
the Constitution says absolutely nothing about it, and (2) the long-
standing traditions of American society have permitted it to be
legally proscribed. See, e. g., Ohio v. Akron Center for Reproductive
Health, 497 U.S. ___, ___ (Scalia, J., concurring). The Pennsylva-
nia statute should be upheld in its entirety under the rational basis
test. Pp.1-3.
O'Connor, Kennedy, and Souter, JJ., announced the judgment of
the Court and delivered the opinion of the Court with respect to Parts
I, II, III, V-A, V-C, and VI, in which Blackmun and Stevens, JJ.,
joined, an opinion with respect to Part V-E, in which Stevens, J.,
joined, and an opinion with respect to Parts IV, V-B, and V-D.
Stevens, J., filed an opinion concurring in part and dissenting in part.
Blackmun, J., filed an opinion concurring in part, concurring in the
judgment in part, and dissenting in part. Rehnquist, C. J., filed an
opinion concurring in the judgment in part and dissenting in part, in
which White, Scalia, and Thomas, JJ., joined. Scalia, J., filed an
opinion concurring in the judgment in part and dissenting in part, in
which Rehnquist, C. J., and White and Thomas, JJ., joined.