"IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the Philippines to be affixed.
The District Court held all the provisions unconstitutional, and permanently enjoined their enforcement. 91-744 is affirmed in part and reversed in part, and the case is 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 consideration of the fundamental constitutional question resolved by Roe v. In this case, the Pennsylvania statute directs that counselors provide women seeking abortions with information concerning alternatives to abortion, the availability of medical assistance benefits, and the possibility of child support payments. The statute requires that this information be given to all women seeking abortions, including those for whom such information is clearly useless, such as those who are married, those who have undergone the procedure in the past and are fully aware of the options, and those who are fully convinced that abortion is their only reasonable option. In the abortion area, a State may have no obligation to spend its own money, or use its own facilities, to subsidize nontherapeutic abortions for minors or adults. Decisions since Webster gave little reason to hope that this flame would cast much light. And I fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light. 4 The joint opinion recognizes that these assumptions about women's place in society "are no longer consistent with our The Court has held that limitations on the right of privacy are permissible only if they survive "strict" constitutional scrutiny - that is, only if the governmental entity imposing the restriction can demonstrate that the limitation is both necessary and narrowly tailored to serve a compelling governmental interest. My response to this attack remains the same as it was in Webster: "Were this a true concern, we would have to abandon most of our constitutional jurisprudence. He argues that the record in favor of a right to abortion is no stronger than the record in Michael H. For THE CHIEF JUSTICE, the facts that gave rise to Roe are surprisingly simple: women become pregnant, there is a point somewhere, depending on medical technology, where a fetus becomes viable, and women give birth to children. This characterization of the issue thus allows THE CHIEF JUSTICE quickly to discard the joint opinion's reliance argument by asserting that "reproductive planning could take virtually immediate account of" a decision overruling Roe. States may regulate abortion procedures in ways rationally related to a legitimate state interest. That, I regret, may be exactly where the choice between the two worlds will be made. Just as the Due Process Clause protects the deeply personal decision of the individual to refuse medical treatment, it also must protect the deeply personal decision to obtain medical treatment, including a woman's decision to terminate a pregnancy. The joint opinion, following its newly minted variation on stare decisis, retains the outer shell of Roe v. 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. 490 (1989), and uphold the challenged provisions of the Pennsylvania statute in their entirety. 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. 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. 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 Center for Reproductive Health, supra, 462 U. 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. Although a State can require that second-trimester abortions be performed in outpatient clinics, see Simopoulos v. 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. American College of Obstetricians and Gynecologists, 476 U. 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. Section 3209 of the Act contains the spousal notification provision. See Appendix to opinion of O'Connor, Kennedy, and Souter, JJ., ante, at 908-909. But the provision here involves a much less intrusive requirement of spousal notification, not consent. Judgment of February 25, 1975, 39 BVerf GE I (translated in Jonas & Gorby, West German Abortion Decision: A Contrast to Roe v. And were it helpful to an attempt to reach a desired result, one could just as easily assume that the battered women situations form 100 percent of the cases where women desire not to notify, or that they constitute only 20 percent of those cases. My views on this matter are unchanged from those I set forth in my separate opinions in Webster v. 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," ibid., - but the crucial part of that qualification is the penultimate word. Wade was a correct application of "reasoned judgment"; merely that it must be followed, because of stare decisis. 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? 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 Court of Appeals affirmed in part and reversed in part, striking down the husband notification provision but upholding the others. Moreover, the statute requires physicians to inform all of their patients of "[t]he probable gestational age of the unborn child." 3205(a)(1)(ii). Make no mistake, the joint opinion of Justices O'CONNOR, KENNEDY, and SOUTER is an act of personal courage and constitutional principle. 113 (1973), the authors of the joint opinion today join JUSTICE STEVENS and me in concluding that "the essential holding of Roe v. [T]he "critical elements" of countless constitutional doctrines nowhere appear in the Constitution's text. [ Footnote 1 ] As I shall explain, the joint opinion and I disagree on the appropriate standard of review for abortion regulations. [ Footnote 4 ] A growing number of commentators are recognizing this point. We would adopt the approach of the plurality in Webster v. In ruling on this litigation below, the Court of Appeals 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). In Roe, the Court observed that certain States recognized the right of the father to participate in the abortion decision in certain circumstances. S., at 830 (O'CONNOR, J., dissenting), and in addition furthers the State's interest in preserving unborn life. 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. 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. 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. 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. Minnesota, supra, at 496 (KENNEDY, J., concurring in judgment in part and dissenting in part); see H. But reliance on such speculation is the necessary result of adopting the undue burden standard. 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. The right to abort, we are told, inheres in "liberty" because it is among "a person's most basic decisions," ante, at 849; it involves a "most intimate and personal choic[e]," ante, at 851; it is "central to personal dignity and autonomy," ibid.; it "originate[s] within the zone of conscience and belief," ante, at 852 it is "too intimate and personal" for state interference, ibid.;, it reflects "intimate views" of a "deep, personal character," ante, at 853; it involves "intimate relationships" and notions of "personal autonomy and bodily integrity," ante, at 857; and it concerns a particularly "`important decisio[n],'" ante, at 859 (citation omitted). 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. The findings of the District Court establish the severity of the burden that the 24-hour delay imposes on many pregnant women. Otherwise, the interest in liberty protected by the Due Process Clause would be a nullity. Roe identified two relevant state interests: "an interest in preserving and protecting the health of the pregnant woman" and an interest in "protecting the potentiality of human life." 410 U. With respect to the State's interest in the health of the mother, "the `compelling' point . In order to fulfill the requirement of narrow tailoring, "the State is obligated to make a reasonable effort to limit the effect of its regulations to the period in the trimester during which its health interest will be furthered. The factual premises of the trimester framework have not been undermined, see Webster, 492 U. Gone are the contentions that the issue need not be (or has not been) considered. 11 Given THE CHIEF JUSTICE's exclusive reliance on tradition, people using contraceptives seem the next likely candidate for his list of outcasts. A woman's right to reproductive choice is one of those fundamental liberties. For example, does the Eighth Amendment impose any limits on the degree or kind of punishment a State can inflict upon physicians who perform, or women who undergo, abortions? 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. Section 3205(a)(1) requires a physician to disclose certain information about the abortion procedure and its risks and alternatives. 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. 37 (required disclosure of gestational age of the fetus "certainly is not objectionable"). 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. 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. It bears emphasis that our conclusion in this regard does not carry with it any necessary approval of these regulations. There are certainly instances where a woman would prefer not to notify her husband, and yet does not qualify for an exception. 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. These are the kinds of concerns that comprise the State's interest in potential human life. In my opinion, a correct application of the "undue burden" standard leads to the same conclusion concerning the constitutionality of these requirements. In my view, application of this analytical framework is no less warranted than when it was approved by seven Members of this Court in Roe. Similarly, the Constitution makes no mention of the rational basis test, or the specific verbal formulations of intermediate and strict scrutiny by which this Court evaluates claims under the Equal Protection Clause. Like the Roe framework, these tests or standards are not, and do not purport to be, rights protected by the Constitution. Accordingly, such a regulation cannot justify a legally significant burden on a woman's right to obtain an abortion. Is there anything arbitrary or capricious about a State's prohibiting the sins of the father from being visited upon his offspring? 737, 788-791 (1989) (similar analysis under the rubric of privacy); Mac Kinnon, Reflections on Sex Equality Under Law, 100 Yale L. Regulations can be upheld if they have no significant impact on the woman's exercise of her right and are justified by important state health objectives. [ Footnote 6 ] The joint opinion agrees with Roe's conclusion that viability occurs at 23 or 24 weeks at the earliest. To this end, when the State requires the provision of certain information, the State may not alter the manner of presentation in order to inflict "psychological abuse," ante,, at 893, designed to shock or unnerve a woman seeking to exercise her liberty right. 417 (1990), validating a 48-hour waiting period for minors seeking an abortion to permit parental involvement does not alter this conclusion. A State may not place any restriction on a young woman's right to an abortion, however irrational, simply because it has provided a judicial bypass. 2 [ Footnote 12 ] JUSTICE SCALIA urges the Court to "get out of this area," post, at 1002, and leave questions regarding abortion entirely to the States, post, at 999-1002. 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. Regulations governing the treatment of aborted fetuses have met a similar fate. 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. With this rule in mind, we examine each of the challenged provisions. 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. We therefore conclude that the spousal notice provision comports with the Constitution. 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. They contend, however, that the forced public disclosure of the information given by facilities receiving public funds serves no legitimate state interest. Records relating to the expenditure of public funds are generally available to the public under Pennsylvania law. 3 We find that the interpretation of the Court of Appeals in this case is eminently reasonable, and that the provision thus should be upheld. Thus, in these instances as well, the notification provision imposes no obstacle to the abortion decision. The State may also have a broader interest in expanding the population, 3 believing society would benefit from the services of additional productive citizens - or that the potential human lives might include the occasional Mozart or Curie. We have, for example, upheld regulations requiring written informed consent, see Planned Parenthood of Central Mo. The mandatory waiting period denies women that equal respect. Are [the distinctions entailed in the trimester framework] any finer, or more "regulatory," than the distinctions we have often drawn in our First Amendment jurisprudence, where, for example, we have held that a "release time" program permitting public school students to leave school grounds during school hours to receive religious instruction does not violate the Establishment Clause, even though a release time program permitting religious instruction on school grounds does violate the Clause? A regulation designed to inform the public about public expenditures does not further the Commonwealth's interest in protecting maternal health. 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 973, quoting Ohio v. 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. 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. 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? [ Footnote 5 ] To say that restrictions on a right are subject to strict scrutiny is not to say that the right is absolute. Under Roe, any more than de minimis interference is undue. Because the State's information must be "calculated to inform the woman's free choice, not hinder it," ante, at 877, the measures must be designed to ensure that a woman's choice is "mature and informed," ante,, at 883, not intimidated, imposed, or impelled. The bypass procedure cannot ensure that the parent would obtain the information, since, in many instances, the parent would not even attend the hearing. 379 (1979), the Court struck down a statute that governed the determination of viability. 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. 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. American College of Obstetricians and Gynecologists, supra, at 768-769 (invalidating a similar regulation). Despite the efforts of the joint opinion, the undue burden standard presents nothing more workable than the trimester framework which it discards today. 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. 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. The State also has a legitimate interest in promoting "the integrity of the marital relationship." 18 Pa. Whether this was a wise decision or not, we cannot say that it was irrational. S., at 325 -326 ("It is not the mission of this Court or any other to decide whether the balance of competing interests . 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. 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. Petitioners do not challenge the requirement that facilities provide this information. The existence of a medical emergency exempts compliance with the Act's informed consent, parental consent, and spousal notice requirements. 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. S., at 771 ("It is clear that the Pennsylvania Legislature knows how to provide a medical emergency exception when it chooses to do so"). For example, notification is not required if the husband is not the father, if the pregnancy is the result of a reported spousal sexual assault, or if the woman fears bodily injury as a result of notifying her husband.