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    7 vues14 pages

    Planned P V Casey 2

    Transféré par

    Bobby Kearney
    SLM PITT

    Droits d'auteur :

    © All Rights Reserved
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    318 Pen Two ‘Court, as we have seen, stressed the highly individualistic nature of privacy, thus yielding an understanding of the right that seeks to protect the woman's right to make deci- sions free of unwaranted public regulation. The Federal Constitutional Cour, in contrast, emphasized the extent to ‘which al individual liberties, incuding privacy, take place and must be influenced by society at lage. ‘As we have seen, one of the primary eriticisms of Rae is {ts inhibidon of the lewlsauve provess as a Way of securing public agreement about the issues raised by abortion, In contrast, the German decision alfords the legisiature great, but not unlimited, discretion in formulating public policy ‘on abortion, 1 Morgentater v, The Queen (1988), the Canastian Su- ppreme Court conchded thar a federal starite probihiring most abortions (there was an exception in cases where committee of three doctors certified that an abortion was necessary 10 protect the health or life of the mother) vio- lated Section 7 of the Constitution, Section 7 provides that “everyone has the right to life, liberty and security of the person aun the sight not w be deprived thereof except it accordance with the principles of fundamental justice. Uberty, Community, ané Censtutiona Interpretation under the il of Nights ‘The Court concluded that the statute violates the “security of the person” because this cecurity includes the protec tion of bodily integrity Like the American Court, the Canadian Court thought unnecessary to determine whether the fetus has an inde- peut tight c life wicker Sectivu 7. Tasted), its rule was to weigh the halance sinick hy Parliament in seeking 10 protect die interest of the fetus us ugainst dhe inieress of the pregnant woman 4. How does Blackmun relate Roe to Griswold? Is this connection 4 proper one? Why dws White, who joined the malortyy in Griswold, dissent in Roet 5. Why does Justice Blackmun say that the Court need not determine when life begins? Do dhe dissenters Uhink the cout should have tried to ancwer this question? Should the Cour have wed to do sor 6. Is White correct in charging the majority with an- ouncing “4 new right . .. with scarcely any reason oF authority forts action"? 7. Justices White and Rehngulst cnicize the majority for its uisurpation’ of the legislauive process, Oa what the- ‘ony of democracy does thls reasoning depend? Do the opinions in Roe address this problem satisfactorily? Planned Parenthood of Southeastern Pennsylvania v. Casey 505 US. 833, 1128. CL 2761, 1201. Ea 28874 (1982) In 198 and 199 vennsyivania enacted a number of changes to its abortion law. These included requirements that there be a twenty-tour-hour waiting period betore all, abostions, that minors scecive parental consent (with a jur dicial bypass procedure), that all women give informed consent before the procedure took place (acknowledging, information ahout the efforts and ake af ahovtinn), and Uk maried women inform iheir husbands that they in- tended to have an abortion. Planned Parenthood sued in federal cour, claiming these restricuons were unconsutu- tional and inconsistent with the ruling in Roe. The District ‘Court agreed, but on appeal the Circuit Court reversed, finding all the provisions constitutional except for spousal notification, Judgment of the Court and opinion of dhe Count its parts O'Connor, Kennedy, Souter Concurring ie the opinion in Pan and the judgment in part and dissenting in part: Blackmun, Stevens. Concurring in the judgment in part and dissenting in part: Kebnquist, Scalia, thomas, White; ‘Scalia, Mehaguist, Thomas, White. Justice O'CONNOR, Justice KENNEDY and Justice ‘SOUTER announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I 1, HI, V-A, V-C and VI, an apinion with respect (o Part V-E in which Justice STEVENS joins, and an opinion with respect to Parts IV, V-B, V-D. I Liber finds no refuge in a furispmicence of dou. Yer 19 years afer our buldmg dat dhe Consuuon proves a ‘woman's right to terminate her pregnancy in its early sages, Roe v. Wade, that defntion of liberty is sill ques- Sioned. Joining the recpondents ae amicue curiao, the United States, a it has done an five other cases inthe last decade, again asks us to overrule Roc -1Altoral argument in this Court. the attomey forthe partes challenging the statute took the postion that none of the enactments can be upheld without overruling Roe 1. Wade. We disagiee with that analysis; but we acknowl edge that our decisions after Roe cast donb upon the meaning and reach of s holding, Further, the Chief Jus. tice admits that he would overrule the central holding of ‘koeand adopt the ranonal relationshup test asthe sole cx terion of constiutionality. State and federal cous a8 well 25 legislatures throughout the Union must have guidance a they aeck to adkless cis subject in conformance with CChaptor® Fundamental Rights: Pivacy nd Personhood the Constinition. Given these premises, we find it impera- tive 10 review one sure the principles that define the rights of the woman and the legiimate authority of the State respecting the terminaion of pregnancies Ly aber tion procedures, ‘After considering the fundamental constitutional ques- tions resolved by Roe, principles of institutional integrity, andl the mile of stare decisis. we are led to conclude this: the essential holding Of Abe &. Wade should be stained and ance apain reaffirmed. Test be stated the oorses ane! with elaity that Roe's ‘essential holding, the haleling we reaffirm, has three parts brrst i a recognition of dhe right uf Use wentan to choose, to have an abosion before viahility and to obtain i with- ‘out undue interference from the State. Before viability, the State's interests are not strong enough to supper a prahi bition o! abortion or the imposition of a substantial obsta cle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to resinct ubwations afer Fetal viability, if the law contains excep: tions for prenancies which endanger a woman's lle OF health, and dud iste principle thatthe State has legit ‘mate interests from the onset ofthe pregnancy in protect- 319 tng the health of the woman and the life of the fetus that may become a child. These principles de not contradict ‘one another; and we adhere to each. i ‘Our taw affords cunsitutioual protecion to personal decisions relating to marriage, procreation, contraception, family relationships, chuld reaang, and education. Our ‘cases secognize “the right of the individual, married or sin- gle. 10 be free from unwarranted govemmental intrusion into matters so fundamenally alfecting a person as the decision whether to bear or beget a child.” Our prece- dents “have respected the privatc realm of family life which the state cannot enter.” These matters, involving Uke ist intimate and personal choices « person may make in a liferime, choices central to personal dignity and autonomy, ure central wo the libexty protected by the Pour teenth Amendment. At the hear of lineny ig the right to define one’s own concept of existence, of meaning, of te ‘universe, and of the mystery of human life. Reliefs shont these matters could not define the antes of person- hood were they formed under compulsion of the State, ‘These considerations begin our analysis of the woman's vaca sour eae 1 (1913/18 NooRMeR,«antuuanal JUrsprudence 31-53: inverest in terminating her pregnancy but cannot end i Torts ressun: Uivuyh the abonion decision may origi rate within the zone of conscience and belief, i is more tman a plilusophicexescise. Abortion i # unique act. I is an act fraught with consequences for others: for the ‘Woman who must live with the implications of her deci tion; forthe persons who perfnrm ancl assist in the proce- ‘dure: for the spouse, family, und suxiety which must confront the knowledge that these procedines exist, pro- cedures some deem nothing short of an act of vivlewe against innocent human life, and, depending on one's be- liefs, for the life or potential ide that 1s aborted, rhough boron is conduct, it does not follow that the State is entitled to proscribe it in all instances. That is because the ery ofthe wou a sue in @ sense Unique to the hhuman condition and so nique tothe law... Her suffer ings too intimate and personal for die state to lst, with= jut more, upon ite own vision of the woman's mle, however dominant that vision has been inthe course of vvur history and our culture. The destiny of the woman ‘mos he shaped toa large extent on her own conception ‘of ier spiritual imperatives and her place in society “While we appreciate the weight ofthe arguments made on behalf of the State in die case before us, arguments ‘which in diet ultimate formulation conclude that Roo should be qvernslad, the reservations any of us may have in reaffirming the ventral Lolding of Roe are outweighed by the explication of indivichnal liberty we have given combined with the force of sure devisis: We turn now to that doctrine. A ‘The obligation to follow precedent begins with necessiry, nu w cumtiaty sicveasity marks its outer limit. With Car dozo, we recognize that no judicial system could do soci- fety’s Work if it eyed eacls issue afiesh in every case that raised it, See B, Cardozo, Tho Native of the Judicial Proc- ess 149 (1921). Indeed, the very concept of the rule uf law ‘underlying our own Constitution requires such continuity ‘over time that a respect for precedent is, by definition, innlispensable, ... At the other extreme, a different neces- sity wenld make itself felt fa prior judicial ruling should ‘come (0 be seeu su Cleauly as error that its enforcement ‘was for that very reason cioomed ‘Even when the decision (o overule a prior case is not, as in the rare, latter instance, virually foreordained, itis (chapter 8 Fundamental Rights, Privacy and Personhcod ‘common wisdom that the rule of stare decisis is not an “inexorable couuirand,” and cenainly it is not such in ‘every constitutional case... Rather, when this Cour reex- amines a prior holding, ts judggnent is customarily in- formed by a series of prudential and pragmatic ‘considerations designed to test the consistency of overrt- ing a prior decision with the ideal of the rule of law, and ro ganige the respective costs of reaffirming and overruling 4 prior case, Thus, for example, we may ask whether the rile has peeved to he intolerable simply in defying practi- cal workability, wheuuer the 1ule is subject to a kind of reliance that would lend a special hareship te the conse {quences of overruling and add inequity to te cust uf 1e- pudiation, whether related principles of law have so far developed as to have left the old rule no more than a remi- nant of abandoned doctrine, or whether facts have so changed! or come to be seen so differently, as 10 have robbed the old 1ule of sigaificant application oF justifica 50 in this case we may inquire whether Roe's central rule has been found unworkable; whether the niles limi- tation on slate power could be removed without serious incquity to thoze who have relied upon it or significant damage to the stability of the society govemed by the rule jar question; whether the law's growth in the intervening ‘years has left Roés central rule a doctrinal anachronism discounted by society; sul whether Noes premises of fact have 0 far changed in the enening two deeadles.28 to ren- der its central holding somehow trretevant ur unjustifiable in dealing with the issue it addressed 1, Although Koehas engendered oppostuon, 1 is tu no sense proven “unsvorkable,” representing as it does a simple limitation bevond which a state law is unen- finveable, While Roe has, of course, eequired judicial assessment of state laws affecting the exercise of the choice gusrumeed against govesnment infringement, and although the nae! far auch view will remain as a consequence of today's decision, dhe required detersni- nations fall within judicial competence. 2, The inauiry into reliance counts the cost of a rule's repudiation as it would fall on those who have relied reasonably on the rule's continued application. “The ability of women to participate cqually in the economic and social life of the Nation has been facili- tated by theie ability w contrul Uieis weproductive lives. ‘The Constitution serves human values, and while the clfect of reliance on Koe cannot be exactly measured, ‘cither can the certain cost of overruling Roe for people ‘who have ordered their thinking and living around that ease Le Uisiisse, 321 3. No evotlon of el principe Ia eft Rocks doce tinal footings weaker than they were in 1973 No devel lopment of constitution! aw since the case was decide has implicitly or exp le Raebhind aa mere sur ‘vor of cbsoleteconsitional thinking The Re Cit self placed its holding in the sion of vse most prominenly exemplified by Gri wold. when is sso see, Res early io no jeopardy, Since sobeequent constirinal developments have ne ther dimubed, nor do they threaten Wo dni the soope of rexognize’ protection acco nthe lieny resin 10 slit reavonships, the family and dei Sons about whether or not wo beget or beara child. See, c.g.. Carex, Moore v. City of Hast Cleveland (1977). SOlne could casey Roe sul gonrt Wf the ease i o viewed, the there clearly has Deen n0 eosion of is ental determination. The ental holding woe exprescly reaffirmed hy a majority of six in 1983. see Inkron t. Akron Center for Reproductoe Meat tn (4983) (Akron Dana ha majo of ive n 1986, see ‘omburgh v.Amencan Cole of Olserctans wad Gynecol (96)... » More recently, ia Websor Reproductive Health Services (W989) a majority of the Cour ether decided to reff oF dedined to ad Ares the constatonal val of the cent bling of Ree “We have seen how tine has overtaken some of es fc wsnnpions:adeances in material heath ‘re allow far ahortions safe o the mothe ter in preg fancy than waste 1973, an lances in aeons Care have advanced viabily to poin some eat te i ee facts go ony fo the seen ue ts nthe ealiastion of competing ness, andthe diver. gerices fom the factual premises of 1973 nave no Den ing on the valli of Roc contr! holding, tha igh marks theealest point at which the Sate’ interest in fetal ies vonsintonaty degen 10 jot 0 Tila thar tia Tether aewton. THE SORTS orsoundness ofthat constr sional jdgmeat inno sence tis on whether viably ccs at approximately 28 weeks, a was usa ie time of Rog, at 23 to 24 weeks, 2% it sometimes does today, ora some moment even sight eter in preg nancy, a8 t may if fetal eespiratory capacity can some- how be enhanced in thefuture. Whenever itmay ocr, the ataloment of vinbity may contin to cere a the Cra at, jst as it has done sine Rae was decid Wh soy a ange a Ris fatal undp ing has let te ceil hong obsolete, and none Sp por an argument for overzuig i 5 Tho eum of he precedent inn hie pit 322 shows Rad's undempinningsrinsvealeened in any way af fecving Is cenral holding, While thas engendered ds- approval, it has not been unworkable, An entire seneraion has come of age free to assume Koes con- cpt oflibeny in defining the capacity of women to act in society, and to make reproductive decisions: no ero- sion of principle going to liberty or personal autonomy thas left Rods central holding a doctrinal remnant, Roe ponends no develupents at odds wih uiier preve- dent for the analysis of personal libeny; and no changes of fact have rendered viability more of less appropriate fs the point at which the balance of interests tips. Within the bounds of normal sare decsisanalyss, then, and subject to the considerations on which it custom aly tums. the stonger argument is for affirming Roe’s central holding, with whatever degree of personal re= luctance any of us may have, not for overruling it B In a less significant case, siare dectsts analysts could, and would, stop at the point we have reached. But the sus- tained and widespread debate Roe has provoked calls for ‘some comparison between that case and others of compa rable dimension that have responded to astional contro vyersies and taken on the impress of the controversies addressed. Only two such decisional lines from the past ‘century present themselves for examination, and in cach instance the result reached by the Court accorded with the principles we apply today. "The first example is that line of cases icentiied with Lochmer v, New York, whicts muposed substantive limita- tions on legislation limiting economic autonomy in favor ‘of health and welfare regulation, adopting, in Justice Holmes’ view, the theory of laissez-faire. .. . The facts ‘upon which the earlier case had premised a constitutional resolution of social controversy had proved to be untruc, and history's demonstration of their untruth not only justi fic’ but requitcd the new vite Uf Uoustvtivnal piace ple that West Coast Hotel announced. OF course, i was ‘uue tat the Coun lust somali by ts misperception, oF its lack of prescience, and the Cour-packing crisis only magnified the loss; bur the clear demonstration that the facis of economic life wore different from those previously assumed warranted the repudiation ofthe old law. “The second comparison that 20th century history invites {s with the cases employing the separate-but-equal rule for applying the Fourteenth Amendment's cqual protec- tion guarantee. They began with Plesy . Ferguson (1896), holding that legislatively mandated racial segregation in public transportation works no denial of equal protection, rejeuung die arguiuent dia ractal separauun enforced by Pan Two Livery, Community and Constnuonalintorpretaton under he Bi of Fights the legal machinery of American society treats the black ace us inferior. The Plagy Count cousideted “the underly ing fallacy of the plaintiff's argument to consist in the 2s- sumption that the enforced separation of the two races stampe the colored race with a badge of inferiority. If this, be so, itis nor by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” Whether, as 2 matter of historical faci, the Justices in te Plessy majority believed this oot, this undersancling af the implication oF segregation was the stated justification for the Cour’s opinion, Bur this un- derstanding ofthe facts and the rule it was stated to justify were repudiated in Brown v. Board of Education 950... The Court in Brown addressed these tacts ot lite by ob- serving that whatcver may have been the understanding in Plesg/s time of the power of segregation to stigmatize those who were segregated with a “badge of inferiority,” it was clear hy 1956 thar legally sanctioned segregation fad just such an effec, wo dhe potnt chat racially separaue public educational facilities were deemed inherently un- equal. Socieys understanding of the facts upon which a constitutional ruling was sought in 1954 was thus fanda- mentally diferent from the basi claimed for the decision in 1896, While we think Plaxy' was wrong the day it was decided, we must also recognize that the Plessy Courts ‘explanation for its decision was 90 clearly at odds with the facts apparent to the Court in 1954 that the decision to reexamine Plessy was on this ground alone not only justi fie fn required West Const Hove and Brown each rested on facts, or an understanding of facts, changed from those which fur- ished the claimed justifications for the earlier constitu- tional resolutions, Bach case was comprehensible as the Court's response to facts that the country could under stand, or had come to understand alrcady, but which the Court of an earlier day, as its own declarations disclosed, Thal ut Leen able w perceive. As dhe decisions were ius comprehensihle they were alsa defensible, not merely as the victortes of one doctrinal school over another by dint of numbers (victories though thoy were), but as applica tions of constitutional principle to facts as they had not been seen by the Court before. In constitutional adjudica tion as elsewhere in life. changed circumstances may im- pose new obligations, nd the thoughtful part of the Nation could accept each decision to overule a prior case 5a response fo the Cour's constitutional duty. Because the case before us presents no such occasion it could be seen as no such response. Because neither the faenial underpinnings of Rae's ‘central woldnig nor our understanding Of 1 nas changed chapter © Fundamental Righis: Privacy and Personhood Cand hecase na other indication of weakened precedent has been sliown) the Cust could not pretend to be reex amnining the prior law with any justification beyond a pres- ‘ent doctanal disposition to come out cifrently from the Court of 1973. To overrule prior law for no ather reason than that would run counter to the view repeated in our eases, that a decision to overmule ahould rest on some spe- cal reason over and above the belie shat a prior case was wiougly decided. © «The root of American gavemmental power is revealed ‘most clearly in the insane of te power conferred by the Constitution upon the Judiciary of the Tinited States and specifically upon this Coun. ccocding generation are rightly told, the Cour cannot buy ‘support lor its decisions by spending money and, excep! toa minor degrce, it cannot independently coerce obedi- ence to its decrees. The Cours power lies, rather, sn its legitinacy, a product of substance and perception that shows itself in the people's acceptance of the Judiciary as AAC To determine wat Uie Nation's law means and to de: clare what it demands. ‘The underlying substance of this leyltiuuay is of course the warrant for the Cour’s decisions in the Constinution and the lesser sources of legal principle om whit the Court draws. That eubsance is expressed in the Coun’s opinions. and our contemporary understanding is such that a decision without principled justification would be fn judicial act at all, But even when justification is far- nish by apposite legal principle, something more is re quited. Recase not every conscientious claim ot principled fusuicatlon will be accepted as such, the just- fication claimed must he heyond dispute. The Court must take care fo speak and act in ways that allow peuple Ww accept its decisions on the terms the Court claims for them, as grounded truly un principle, not as compromises with social and political prennures having, ae such, no ‘bearing on the principled choices that the Courts obliged \w uzike, Thus, the Coun's legitimacy depends on making lagally principled decisions under circumstances in which their principled eliasucter is sufficiently plausible to be ac cepted by the Nation the need for principled action to Le peiceived as such is implicated to some degree whenever this, or any other appellate court, overules a prior case. This is not to si of course, that this Gourt cannot give a perfectly sarisfac- tory explanation in most cases. People understand that some of the Constitution's language is hard to fathom and that the Court’s Justices are sometimes able to perceive siguuficaut Gaus v1 WW undersiand principles of law that Americans of excl suc- 323 cluded their predecessors and that justify departures from ‘existing decisions. . .-. Where, inthe performance ofits judictal duties, the Court decides a case in such a way as 10 resolve the sort of intensely divisive controversy retlected in Koeand those rire, compatable cases, its decision has a dimension that the resolution of the normal case does not carry. [tis the imension present whenever the Cour’ interpretation of the Constinution calls the contending sides of a national ‘controversy fo end their nationul division by accepting 2 ‘common mandate rooted ia the Constimtinn ‘The Court not asked to do this very ofien, laviny thus addressed the Nation only twice in our lifetime, in the de- cisions of Brown and Koo. But when the Court does act In this way, its decision requires an equally rare precedential force to counter the inevitable elforts to overturn it and 10 Unwatt its implementation. Some of those efforts may be ‘mere unprincipled emotional reactions; others may pro- Cee from principles woilhy of profound respect. But whatever the remises oF opposition may be, only the rnost convincing jsieuion under accepsed standards of precedent could sulice to demonstrate that a later deci- sion overruling the fist was anything but 2 surender to politcal preagure, and an unjustified repudiation of the principle on which the Court staked its authority in the firs instance, So to overrule under fire in the absence of the mest compelling rcason to reexamine a watershed de- tision would subven the Cours legiimacy beyond any serious question “The promise of uoustancy, once given, bind its maker for 25 long a8 the power to sund by the decision survives and the Uncersanding Of Ue sue ly so changed so fundamentally 28 to render the commitment fbsolete, From tie ebligaton of this promise this Coun. Cannot and should not assume any exemption when duty requires ito decide a ease in conformance withthe Con- situs. A willing breach oft would be nothing less than 2 Reeaeh of faith, and ao Cane that beoke its ath with the People could sensibly expect cet for principe in the ‘Seision by which cil shar itis true that diminished leyiiney may be restored, but only slowly. Unlike the political tranches, a Court thus ‘weakened could not seck to regain its poston with a new mandate from the voters, and even if Une Court could somehow go tothe pols, the fos of ats pnnciplea charac- ter could not be retrieved by the casting of eo many votes. the character of an individual, the lestimacy of the (Coun inust be ented uve tie. 9 indeed, must be the character of + Nation of people who aspite fo live accord ‘ng fo the rule of lw. Tht belie in themselves as such # ‘peopl ie not readily separable from their nnlersanding 324 of the Court invested with the authonty to decide their constitutional cases and speak before all others for their constitutional ideals. If the Cour’s legitimacy should be undermined, then, so would the country be ia its very ability to see itself threwigh its ennstimtional ideals. The ‘Cour’ concern with legitimacy 8 not for the sake of the ‘Court but for the sake of the Nation to which itis respon- sible. ‘The Cour’s duty in the prevent cave is clear. In 1973, conlronted the already-divisive issue of governmental power to limit personal choice to undergo abonion, for Which it provided a new resolution based on the due process guaranteed by the Fourteenth Amendment Whether or not a new social consensus is developing on that issue, its divisiveness is no less today than in 1973, and pressure to overrule the decision, like pressure to retain it, las grows only uote intense. A decision t0 over rile Rodis excential holding under the existing cireum= stances Would address error, if error here was, at die Cost of both profound and unnecessary damage to the Cours legitimacy, and to the Nation's commitment to the rule of law. It is therefore imperative to adhere to the essence of ‘Roés orignal decision, and we do so today. Vv Frou what we have sai sv fa ic follows that iia vousti- tutional libery of the woman to have seme freedam 10 terminate her pregnancy. We conclude that the baste deci- sion in Roe was based on a constitutional analysis which wwe cannot now repudiate. ‘The woman's liberty 1s not so unlimited, however, that from the outset the State cannot show its concer for the lie of the unborn, and at a later point in fetal development the State’ interest in life has sufficient force so thatthe ight of the woman to terminate Une pregnancy Ga be vested. Yer it must he remembered! that Row 9 Wade speaks ‘with clarty in establishing not only de woman's Ibeny but also the State's “important and legitimate interest in potential life.” That portion of the decision in Roe has been given too litle acknowledgement and implementa tion by the Cour in its subsequent cases. hose cases de- cided that any regulation touching upon the sbortion decision must survive strict scrutiny. to be sustained only if drawn in narrow terms to further a compelling state in- terest. Not all of the cases decided under that formulation can be reconciled with he holding in. Roe itself Usa ie State has legitimate interests in the health of the woman and in protecung the potential ife within her. in resolving this tension, we choose to rely upon Roo, as against the later cases. ++ Measures aimed at ensuring that a woman's choice Part Two Liberty, Community, and ConztiutinalIntrpretaon under tho Bil of Fights contemplates the consequences for the fetus do not nec- cesealy interfere with the right recognized in Roo, al though those measures have been found to be lnconsistent with the rigid. trimester framework an nounced i that case. A logical reading ofthe central hold- ing in ov Hse, und every reconciliation of dhe Libecty ofthe woman and the interest of the State in pre ‘mouing prenatal ife, require, in our view, that we abandon. the trimester framework as a rigid prohibition on all pre- viability regulation aimed at the protection of fetal hfe ‘The trimester framework ouffers from these basic awe: in lus formulation it misconceives the nature ofthe pregnant ‘woman's interest; and in practice it undervalues the State's interest in potential life, as recognized in Roe. AAS our jurisprudence relating to al liberties save por hhaps abortion has recognized, not every law which makes a right more dificult to exercise is, ipso facto, an infringe ‘ment ofthat ight - Nuuuerous fom Of state regulation might have he incidental effec of increasing the cast or decreasing the availabilty of mecical care, Whether for abortion or any ‘other medical procedure, The fact that a law which serves 2 valid purpose, one not designed to sinke at the right itself, has the incidental effec of making it more difficult fof more expensive to procure an abortion cannot be ‘encugh to invalidate it Only where state regulation Im- poses an nnde burden on a wemnan’s ability fo: make this decision docs the power of the State rewch into die lca of the liberty protected by the Due Process Clause The very notion thatthe State has a substantial interest in potential if leads to the conclusion that not all regula- tions must be deemed unwarranted. Not all burdens on. the right to decide whether to terminate a pregnancy will be undue. In our view, the undue burden standard is the ‘appropalave uacaas Of seuoulig Use sates event wl the woman's constimrionally protected liberty » Because we set fort a standard of general appllea- tion to which we intend to adhere it is important to clan ‘what is meant by an undue burden. a finding of an undue burden is a shorthand for the conclusion that a state regu lation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus, A statute with this purpose is invalid be- cause the means chosen by the State to further the interest, in potential life must he calculated to inform the woman's free chive, wot hinder i. Aud state which, while fare thering the interest in potential life or some other valid state interes, nas the effect of placing a substantial obsta- cle inthe path of a woman's choice cannot be considered 4 permissible means of serving is legitimate ends. + Regulations designed to foster the health of « ‘Chapter 6 Fundamental Rights: Privacy and Personhood ‘woman seeking an abortion are valid ifthey do not const- lute an undue burden Even when jurists reason from shared premises, some disagreement is inevitable. That is to be expected in the application of any legal standard which must accommo- date life's complexity, We du iu: expert itto be otherwise swith respect to the undue burcien standard. We give this summary: (@) To protect the central right recognized by Roe «. Wade while at the same lime accommodaung the State's profound interest in potential life, we employ the undue burden analysis as explained sn lis opinion. An undue burden exists if ts pur pase or effect is to place a substantial obstacle an te pail ofa woman secking an abortion before the fetus attains viability. (D) We rejeut de rigid wimester framework of Roe Wade. To promote the State's profound interest if porendal life, Uuouylout pregnancy the State may take measures ia ensuce that the woman's choice is informed, and measures designed! t advance this interest will not be invalidated as long as their pur- pose is to persuade the woman to choune childbiah over abortion, These measures must not he an undue burden on the night. (© Aswith any medical procedure, the State may enact regulauions fo further the health oF safety uf woman seeking an abortion. Unnecessary health regulations that have the purpose or effect of pre= senting a pubstantial obstacle to a. woman serking, ‘an abortion impose an undue burden on the right (@) Our adoption of the undue burden analysis does ‘not disturb the central holding of Roe v. Wade, and ‘we reaffiem that holding. Regardless of whether ex. ceptions are made for particular circumstances, State may not prohibit any woman from making the ultimate decision to temmunate her pregnancy before viability (e) We also reathirm Koe's holding that “subsequent ro viability, the State in promoting ite interest in the ‘potentiality of human life may, if chooses, repu- late, and even proscribe, abortion except where it is necessary. in appropriate medical judgment, f the preservation of the life or health ofthe mother, ‘These principles col out assessment of the Pennsylva ria statute, ancl we new turn 10 the issue: of the validity ot its challenged provisions v (The Court sustained the definition ot “medical emer- _getiey,” tae wcity-Fourehour waiting period, and the pa 325 rental consent reyuivernent. The Court struck down the spousal notification reqpirement and the record and re- porting requirement that provided for otiication to a spouse] vi (Our Constitution isa covenant running from the First gon~ eration of Americans fo us and then to future generations. 1 a coherent succession, Each generation must leam anew thar the Constitution's written terms embody ideas and aspiniuons that wust survive more ages than one. We accept our responsibilty not 10 eetveat from interpreting the Fall meaning of the covenant in light of ll of wus prec= dents. We invoke it once again to define the freedom ‘guaranteed by the Constitution s own promise, the prox ise of libeny. Justice STEVENS, concurring in part and dissenting in part. I ‘Thee Court is unquestionably correct in concluding that the doctrine of stare decisis has controlling significance in a cease of this kind, nowithistandinng an individual justice's concerns about the merits. The centeal holding of Roe w Wade, has been a “part of our law’ for almost wo Uec- des. Itwas a natural sequel tothe protection of individual lihenty established in Griswold v. Connecticut. ‘The soct ‘ull costs of overtly Roeat this late date would be enor mous, Regis an integral part of a porreer understanding of both the concept of liberty and the asic equality of meu and women, i) My disagreement with the joint opinion begins with isn derstanding of the wimester framework established in Roe. Gontiary te the suggestion of the joint opinion, ante, at 2823, i ie nov a “conitadiction” to recognize that the State may have a legiumate inwerest in porential human life and, atthe same time, to conclude that interest eines nc justify the regulation of abortion before viabulty (although omer interests, such as maternal health, may). The fact that the State's interest is legitimate does not tell us when, it ever, tat inverest quiweighs the prey wouuan's interest in personal libery. It is appropriate, therefore, to consider ‘more carefully the nature of the interests at stake. ist, itis clear that, ia order to be legitimate, the State's interest must be secular; consistent with the First Amend- ‘ment the Stute way 1U1 promote a theological or sectarian interest, Moreover, 22 disovecad! shove, the state interest 326 Jn potential human lite is not an interest én loco parents, for the fetus is not @ person. Identifying the State's interests—which the States rarely articulate with any precision—makes clear thatthe interest fn protecting potential life is nat grounded in the Constr Won, 1, insiead, an indirect imerest supponted by bot humanitarian and pragmatic concems. Many of our citi zens believe that any abortion reflects an unacceptable disrespect for potential human life and that the perform ance of more than a million abortions each year is intoler- able; many find third trimester abortions performed when the fetus is approaching personhood particularty otten- sive. The State has a legitimate interest in minimizing such offense. The State may also have a broader interest in ex: panding the population, believing sociery would benefit from the services of additional productive eitizens—or tat the potenilal human lives might include the occa sional Mozart or Curie. These are the kinds of concerns that comprise the State's interest in potential human life Justice RIACKMTIN, concurring in part, concurring fn the judgment in part, and dissenting in part. Join parts I, I, I, V-A, V-C, and VI of the joint opinion of Justices O'CONNOR, KENNEDY, and SOUTER ‘Thee years ago, in Webster v. Reproductive Health Ser, four Membeis of this Courtappeased puised tu “wast into darkness the hopes and visions of every woman in this country” why had come (o believe that the Consttusion ‘guaranteed her the right to reproductive choice. All that remained berween the promise of Roe and the darkness of| the plurality was single, flickering flame. Decisions since Wester gave litie reason to hope that this tame would ‘cast much light. But now, just when so many expected the darkness to tall the tlame has grown bright 1 do not underestimate the significance of volay's jit opinion. Yet I remain steadfast in my belief that the right 10 reproxtuctive choice is entitled w the full prowesion af foeded hy thie Cont hefarm Wahetor And 1 fear foe the darkness as four Jusulces anxiously await the single vore necessary to extinguish the light. ! Make no mistake, the joint opinion of Justices O'Connor, Kennedy, and Souter is an act of personal courage aud constimitional principle. In contrast to. previens decisions ‘in which Justices O'Connor and Kennedy postponed re- consideration of Roe v. Wade, the authors of the joint ‘opinion today join Justice Stevens and me in conchicing, that “the essential holding of Roo should be retained and ‘once again reaffirmed.” In brief, five Members of this Court today recognize that “the Constitution protects a Part Two Liberty, Community, and Constitutional Interpretation undor the Bul of Rights woman's right 10 terminate her pregnancy in its eariy stages, A fervent view of individual liberty and the force of sare decisis have led the Cou to this conclusion, Today 2 majority reaffirms that the Phe Process Clanse of the Founeenth amendment establishes “a realm of personal liberty which the government may not enter;"—a realm whose outer limits cannot be determined by interpreta- tions of the Gonstitution that focus only on the specific practices of States at the time the Fourteenth Amendment ‘was adopted... . Finally, the Gourc today recognizes that in the case of abortion, “the liberty ot the woman is at stake in a sense uniquc to the human condition and so ‘unique to the law. The mother who carries a child to full termis subject to anxieties, to physical constraints to pais: that only she mist hear” ‘The Court's reaffirmation of Ro¢'s central holding is also based on the force of stare decisis. INlo erosion of princi- ple going to liberty or personal autonomy has left oes central holding a doctrinal remnant; Roe portends no de vvelopments at odds with other precedent for the analysis cof personal liberty, and no changes of fact have rendered viability more or less appropriate as the point at which the balance of interests tips.” Indeed, the Coust acknowledges that Rods limitation on state power cenll nos he remeved “without serious inequity to those who have relied upon {ror significa damage fa the stability of the saciery gov- emed by the rule in question.” . . What has happened today should serve as a model for future Justices and a ‘warning to all who have tned to turn this Court into yet another political branch. In etriking down the Pennsyiva nia statute's spousal notincation requirement, the Court has established «framework for evaluating abortion regu lations that responds to the social context of women fac- ing fsoucs uf reprlucive Cavite... Ti deter the burden imposed by the challenged regulation, the Contr inguites wheter dhe regulation’ “purpose or effect ts 0 pplace a substantial obstacle in the path of a woman seek ing an abortion before the fetus attains viability.” The ‘Court reaffirms: “The proper focus of constitutional in ‘Quiry is the group for whom the law is a restriction. not the group for whom the law is isclevant.” At long last, The Chief Justice and those who have joined ‘hum adaut st. Gone are the contentions thatthe issue need not be (or has not been) considered. There, on the first page, for all to see, is what was expected: "We believe that foe was wrongly decided, and thar itcan aud should chapter Funcemera is. ivacy and Persenbood ‘be queeniled consistently with our taditional approach 10 sare decisis constitutional cases.” If there is much rea son to applaud the advances made by the joint opinion today, there is far more 10 fear from Tle Chief Justice's opinion. ‘The Chiet Tustice’s enticism of Koe follows from lus stunted conception of individual liberty. While recogaiz~ ing tha the Due Process Clause protects more than simple pliysiealibeny, he then gocs 08 to consirue this Cour!s persnnal-theny cases as establishing only a laundry ist of particular rigs, aver than a prineipled account of how those particular rights are grounded in a more general right of privacy. This consirivtel view is reinforced by The Chief Justice's exclusive rence on triton as 2 source of fundamental rights. He argues dat Une record in favor ‘of n eight to abortion is no stronger than the record in Michael Hi. . Gerald D. (1985), where che plural fourxd ro fundamental right to visitation privileges by an adil. ous father, or in Bowers v. Hardwick (1986), where the Court found no fundamental right to engage in homosex- wal cacomy, or in a case involving the “hing of @ gun {nw antler person's boxy." In The Chief Justice’ wort, a woman considering whether to temainate a pregnancy is entled 10 no more proveciion than adulterers, murderers, fand co-called "sexual deviates" Given The Chiet Justice's ‘exclusive relunce on tradition, people using coutiacep- tives soem the nen likely candidate for bis list of oureaste ‘Even more shocking than the Chief Justice's cramped rotion of individual ibery is his complete omission of any discussion ofthe elfecs that compelted childbirth and tnvuleahiood have on women's lives. The only expression ‘oF concer with women's health is purely instrumental for The Clef jusice, vuly women's psychological health {sa concern, snd only to the extent that he assumes that every Woman WHO UeLdes w lave att alantion does 30 ‘without serious consideration ofthe moral implications of their decision, In short, The Chief Jusuee’s view of dhe State's compelling Interet in matomal health has less 10 cdo with health than it does with compeling women to be ‘maternal Nor dlaes The Chief Justice vive anv serious consider- tio w the dectine of stare decisis For The Chief Justice, the fares that gave sise to Roe are surprisingly simple: “women become preyuint, these Is 2 point somewhere, depending on medical technology, where a fetus becomes viable, andl women give bith to children." This caracter- ization of the issue thus allows The Chief Justice quickly to discard the joint opinion's reliance argument by asser- ing that "reproductive planning could take ... virwally immediate account ofa decision overruling Hoe.” internal quoxuons emer. 327 “The Chief Justive’s naisow conception of individual lib ceny and stare decisis leds him to propose the same stan- dard of review proposed by the plurality iis Webster ‘States may regulate abortion procedures in ways ratio nally related t0 2 legitimate state interest...” The Chief Justice then futher weakens the teat by providing an in- ‘sirmonntable requirentent for facial challenges: petiton- lets muist “Slow that no set of circumstances exists under which the [provision! would be vali” Bui, we are reussused, there is always the protection of the democratie pracese While there is much to be praised about our democracy, our county since its founding has recognized that there are certain fundamental liberties that are not to be left to the whims of an election. Aw right to reproductive choice is one of those fundamental liberties. Accordingly, that lbesty need not seek refuge at the ballot box. Vv In one sense, the Coun’s approach is worlds apart from that of The Chief Justive aml Justice Scalia. And yet, ia another sense, the distance herween the two approaches is short—the distance is bur a single vow. Tam 83 years old. I cannot remain on this Cowe forever, and when 1 do step down, the confirmation process for ‘my successor well may focus on the issue before us today. ‘Thar, | regret, may be exactly where the choice between Ue two worlds will be made. Chief Justice REHNQUIST, with whom Justice 'WIIITE, Justice SCALIA, and Justice THOMAS join, concurring in the judement in part and dissenting in part “The joint opinion, following its newiy-auunued vasiation on, stare dociss, retaine the outer shell of Reo n Wade, hut beats a wholesale retreat from the substance of tat case. ‘We believe that Roe was wrongly decided, and that it can and shonld he overruled consistently with our traditional uppiowch 1 stare decisis in constitutional cases. We would adapt the approach of the plurality in Webster v Reproductive Heulih Services, and uphold the challenged provisions of the Pennsylvania sfamte in their entirety 1 Unfortunately tor those who must apply this Cours decisions, the reexamination undertaken today leaves the ‘Cont no less divided than betorehand, Although they re- ect le useste:famewors that formed the underpinning ‘of Rea, justices O'Connor, Kennedy. and Souter adopt revised undue burden standard t0 analyze the challenged regulations, We conclude, howawer, that such an outcome 328 {s an unjustified constitutional compromise, one which Jeaves the Court ina position to closely seratinize al types of abortion regulations despite the fact that it lacks the power to do so under the Constitution. ‘The joint opinion of Justices O'Connor, Kennedy, and Souter cannot bring itself to say that Roe was correct as an Original ruawet, but tne ails ave of Ue view thst “tre immediate question is not the sonininess af Rds resale tuon of the issue, Dut the precedential force that must be accorded to its holding,” Instead of claiming that Roo was comect as a matter of original constitutional interpretation, the opinion therefore contains an elaborate discussion of stare decisis. Whatever the “central holding” of Roe that is left afier the joint opinion finishes clssecting itis surely not the result of that principle. While purporuing wo adere precedent, the joint opinion instead revises it. Roe contin- Les 1 exist, bur only in the way 2 storefront on a westem movie set exiss: a mere facade to give the illusion of reality Tn our view, authentic principles of stare decisis do not require that any ponion of the reasoning in Roe be kept intact. “Stare decisisis not... a universal, inexorable vom mand," especially in cases involving the interpretation of the Federal Constitution, Brroueous decisions in sucht con- stiutional cases are uniquely durable because correction through legislative action, save for constitutional amend- ‘ment, is impoceible. Iti therefore our duty to reconsider constitutional interpretations that “depart! from a proper understanding’ of the Constitution, But the joint opinion goes on 10 state that when the Court “resolvefsl the sort of intensely divisive controversy reflected in Rae and those rare, comparable cases,” its de- cision is exempt from reconsideration under established principles of stare docisis ... This is truly a novel princi pile, one which is contrary to both the Cour's historical [Practice and to the Cour’ traditional willingness t0 toler ate criticism of its opinions. Under this principle, when the Couit has tule uu a Uivisive ioue, i i appasesly “fonenets hy the Cri Ten pear afer Bg tha We vena sttutional cour, by cont, sruck down a law lberlising access tw abonion on the grounds har lfe developing win the womb i

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