Planned Parenthood of Southeastern Pennsylvania v. Casey

OCTOBER TERM, 1991

															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* [843] 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, II, III, V-A, [844] V-C, and VI, an opinion with respect to Part V-E, in which
JUSTICE STEVENS joins, and an opinion with respect to Parts IV;
V-B, and V-D.

															I

															Liberty finds no refuge in a jurisprudence of doubt. Yet 19
years after our holding that the Constitution protects a woman's
right to terminate her pregnancy in its early stages, Roe v.
Wade , 410 U. S.
113 (1973), that definition of liberty is still questioned.
Joining the respondents as amicus curiae , the United
States, as it has done in five other cases in the last decade,
again asks us to overrule Roe. See Brief for Respondents
104-117; Brief for United States as Amicus Curiae 8.

															At issue in these cases are five provisions of the Pennsylvania
Abortion Control Act of 1982, as amended in 1988 and 1989. 18 Pa.
Cons. Stat. §§ 3203-3220 (1990). Relevant portions of the Act are
set forth in the Appendix. Infra , at 902. The Act requires
that a woman seeking an abortion give her informed consent prior to
the abortion procedure, and specifies that she be provided with
certain information at least 24 hours before the abortion is
performed. § 3205. For a minor to obtain an abortion, the Act
requires the informed consent of one of her parents, but provides
for a judicial bypass option if the minor does not wish to or
cannot obtain a parent's consent. § 3206. Another provision of the
Act requires that, unless certain exceptions apply, a married woman
seeking an abortion must sign a statement indicating that she has
notified her husband of her intended abortion. § 3209. The Act
exempts compliance with these three requirements in the event of a
"medical emergency," which is defined in § 3203 of the Act. See §§
3203, 3205(a), 3206(a), 3209(c). In addition to the above
provisions regulating the performance of abortions, the Act imposes
certain reporting requirements on facilities that provide abortion
services. §§ 3207(b), 3214(a), 3214(f). [845] Before any of these provisions took effect, the petitioners, who
are five abortion clinics and one physician representing himself as
well as a class of physicians who provide abortion services,
brought this suit seeking declaratory and injunctive relief. Each
provision was challenged as unconstitutional on its face. The
District Court entered a preliminary injunction against the
enforcement of the regulations, and, after a 3-day bench trial,
held all the provisions at issue here unconstitutional, entering a
permanent injunction against Pennsylvania's enforcement of them.
744 F. Supp. 1323 (ED Pa. 1990). The Court of Appeals for the Third
Circuit affirmed in part and reversed in part, upholding all of the
regulations except for the husband notification requirement. 947
F.2d 682 (1991). We granted certiorari. 502 U. S. 1056 (1992).

															The Court of Appeals found it necessary to follow an elaborate
course of reasoning even to identify the first premise to use to
determine whether the statute enacted by Pennsylvania meets
constitutional standards. See 947 F. 2d, at 687-698. And at oral
argument in this Court, the attorney for the parties challenging
the statute took the position that none of the enactments can be
upheld without overruling Roe v. Wade. Tr. of Oral Arg.
5-6. We disagree with that analysis; but we acknowledge that our
decisions after Roe cast doubt upon the meaning and reach
of its holding. Further, THE CHIEF JUSTICE admits that he would
overrule the central holding of Roe and adopt the rational
relationship test as the sole criterion of constitutionality. See post , at 944, 966. State and federal courts as well as
legislatures throughout the Union must have guidance as they seek
to address this subject in conformance with the Constitution. Given
these premises, we find it imperative to review once more the
principles that define the rights of the woman and the legitimate
authority of the State respecting the termination of pregnancies by
abortion procedures.

															After considering the fundamental constitutional questions
resolved by Roe , principles of institutional
integrity, [846] and the rule of stare decisis , we are led to conclude
this: the essential holding of Roe v. Wade should be
retained and once again reaffirmed.

															It must be stated at the outset and with clarity that Roe 's essential holding, the holding we reaffirm, has
three parts. First is a recognition of the right of the woman to
choose to have an abortion before viability and to obtain it
without undue interference from the State. Before viability, the
State's interests are not strong enough to support a prohibition of
abortion or the imposition of a substantial obstacle to the woman's
effective right to elect the procedure. Second is a confirmation of
the State's power to restrict abortions after fetal viability, if
the law contains exceptions for pregnancies which endanger the
woman's life or health. And third is 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. These principles do not contradict one another;
and we adhere to each.

															II

															Constitutional protection of the woman's decision to terminate
her pregnancy derives from the Due Process Clause of the Fourteenth
Amendment. It declares that no State shall "deprive any person of
life, liberty, or property, without due process of law." The
controlling word in the cases before us is "liberty." Although a
literal reading of the Clause might suggest that it governs only
the procedures by which a State may deprive persons of liberty, for
at least 105 years, since Mugler v. Kansas , 123 U. S. 623 , 660-661
(1887), the Clause has been understood to contain a substantive
component as well, one "barring certain government actions
regardless of the fairness of the procedures used to implement
them." Daniels v. Williams , 474 U. S. 327 , 331
(1986). As Justice Brandeis (joined by Justice Holmes) observed,
"[d]espite arguments to the contrary which had seemed to me
persuasive, it is settled that the due process clause of the
Fourteenth [847] Amendment applies to matters of substantive law as well as to
matters of procedure. Thus all fundamental rights comprised within
the term liberty are protected by the Federal Constitution from
invasion by the States." Whitney v. California , 274 U. S. 357 , 373 (1927)
(concurring opinion). "[T]he guaranties of due process, though
having their roots in Magna Carta's 'per legem terrae' and
considered as procedural safeguards 'against executive usurpation
and tyranny,' have in this country 'become bulwarks also against
arbitrary legislation.'" Poe v. Ullman , 367 U. S. 497 , 541 (1961)
(Harlan, J., dissenting from dismissal on jurisdictional grounds)
(quoting Hurtado v. California , 110 U. S. 516 , 532
(1884)).

															The most familiar of the substantive liberties protected by the
Fourteenth Amendment are those recognized by the Bill of Rights. We
have held that the Due Process Clause of the Fourteenth Amendment
incorporates most of the Bill of Rights against the States. See, e. g. , Duncan v. Louisiana , 391 U. S. 145 , 147-148
(1968). It is tempting, as a means of curbing the discretion of
federal judges, to suppose that liberty encompasses no more than
those rights already guaranteed to the individual against federal
interference by the express provisions of the first eight
Amendments to the Constitution. See Adamson v. California , 332 U. S. 46 ,
68-92 (1947) (Black, J., dissenting). But of course this Court has
never accepted that view.

															It is also tempting, for the same reason, to suppose that the
Due Process Clause protects only those practices, defined at the
most specific level, that were protected against government
interference by other rules of law when the Fourteenth Amendment
was ratified. See Michael H. v. Gerald D. , 491 U. S. 110 ,
127-128, n. 6 (1989) (opinion of SCALIA, J.). But such a view would
be inconsistent with our law. It is a promise of the Constitution
that there is a realm of personal liberty which the government may
not enter. We have vindicated this principle before. Marriage is
mentioned nowhere in the Bill of Rights and interracial marriage
was ille- [848] gal in most States in the 19th century, but the Court was no
doubt correct in finding it to be an aspect of liberty protected
against state interference by the substantive component of the Due
Process Clause in Loving v. Virginia , 388 U. S. 1 , 12 (1967)
(relying, in an opinion for eight Justices, on the Due Process
Clause). Similar examples may be found in Turner v.
Safley , 482 U. S.
78 , 94-99 (1987); in Carey v. Population Services
International , 431 U. S. 678 , 684-686
(1977); in Griswold v. Connecticut , 381 U. S. 479 , 481-482
(1965), as well as in the separate opinions of a majority of the
Members of the Court in that case, id. , at 486-488
(Goldberg, J., joined by Warren, C. J., and Brennan, J.,
concurring) (expressly relying on due process), id. , at
500-502 (Harlan, J., concurring in judgment) (same), id. ,
at 502-507 (WHITE, J., concurring in judgment) (same); in Pierce v. Society of Sisters , 268 U. S. 510 ,534-535
(1925); and in Meyer v. Nebraska , 262 U. S. 390 , 399-403
(1923).

															Neither the Bill of Rights nor the specific practices of States
at the time of the adoption of the Fourteenth Amendment marks the
outer limits of the substantive sphere of liberty which the
Fourteenth Amendment protects. See U. S. Const., Amdt. 9. As the
second Justice Harlan recognized: "[T]he full scope of the liberty guaranteed by the Due Process
Clause cannot be found in or limited by the precise terms of the
specific guarantees elsewhere provided in the Constitution. This
'liberty' is not a series of isolated points pricked out in terms
of the taking of property; the freedom of speech, press, and
religion; the right to keep and bear arms; the freedom from
unreasonable searches and seizures; and so on. It is a rational
continuum which, broadly speaking, includes a freedom from all
substantial arbitrary impositions and purposeless restraints,
. . . and which also recognizes, what a reasonable and
sensitive judgment must, that certain interests require
particularly careful scrutiny of the state needs asserted to
justify their abridgment." Poe v. [849] Ullman, supra , at 543 (opinion dissenting from
dismissal on jurisdictional grounds). Justice Harlan wrote these words in addressing an issue the full
Court did not reach in Poe v. Ullman , but the Court
adopted his position four Terms later in Griswold v.
Connecticut, supra. In Griswold , we held that the
Constitution does not permit a State to forbid a married couple to
use contraceptives. That same freedom was later guaranteed, under
the Equal Protection Clause, for unmarried couples. See Eisenstadt v. Baird , 405 U. S. 438 (1972).
Constitutional protection was extended to the sale and distribution
of contraceptives in Carey v. Population Services
International, supra. It is settled now, as it was when the
Court heard arguments in Roe v. Wade , that the
Constitution places limits on a State's right to interfere with a
person's most basic decisions about family and parenthood, see Carey v. Population Services International, supra; Moore v.
East Cleveland, 431 U. S. 494 (1977); Eisenstadt v. Baird,
supra; Loving v. Virginia, supra; Griswold v. Connecticut, supra;
Skinner v. Oklahoma ex rel. Williamson , 316 U. S. 535 (1942); Pierce v. Society of Sisters, supra; Meyer v. Nebraska,
supra , as well as bodily integrity, see, e. g., Washington
v. Harper , 494
U. S. 210 , 221-222 (1990); Winston v. Lee , 470 U. S. 753 (1985); Rochin v. California , 342 U. S. 165 (1952).

															The inescapable fact is that adjudication of substantive due
process claims may call upon the Court in interpreting the
Constitution to exercise that same capacity which by tradition
courts always have exercised: reasoned judgment. Its boundaries are
not susceptible of expression as a simple rule. That does not mean
we are free to invalidate state policy choices with which we
disagree; yet neither does it permit us to shrink from the duties
of our office. As Justice Harlan observed: "Due process has not been reduced to any formula; its content
cannot be determined by reference to any code. [850] The best that can be said is that through the course of this
Court's decisions it has represented the balance which our Nation,
built upon postulates of respect for the liberty of the individual,
has struck between that liberty and the demands of organized
society. If the supplying of content to this Constitutional concept
has of necessity been a rational process, it certainly has not been
one where judges have felt free to roam where unguided speculation
might take them. The balance of which I speak is the balance struck
by this country, having regard to what history teaches are the
traditions from which it developed as well as the traditions from
which it broke. That tradition is a living thing. A decision of
this Court which radically departs from it could not long survive,
while a decision which builds on what has survived is likely to be
sound. No formula could serve as a substitute, in this area, for
judgment and restraint." Poe v. Ullman , 367 U. S., at 542
(opinion dissenting from dismissal on jurisdictional grounds). See also Rochin v. California, supra , at 171-172
(Frankfurter, J., writing for the Court) ("To believe that this
judicial exercise of judgment could be avoided by freezing 'due
process of law' at some fixed stage of time or thought is to
suggest that the most important aspect of constitutional
adjudication is a function for inanimate machines and not for
judges").

															Men and women of good conscience can disagree, and we suppose
some always shall disagree, about the profound moral and spiritual
implications of terminating a pregnancy, even in its earliest
stage. Some of us as individuals find abortion offensive to our
most basic principles of morality, but that cannot control our
decision. Our obligation is to define the liberty of all, not to
mandate our own moral code. The underlying constitutional issue is
whether the State can resolve these philosophic questions in such a
definitive way that a woman lacks all choice in the matter, except
perhaps [851] in those rare circumstances in which the pregnancy is itself a
danger to her own life or health, or is the result of rape or
incest.

															It is conventional constitutional doctrine that where reasonable
people disagree the government can adopt one position or the other.
See, e. g. , Ferguson v. Skrupa , 372 U. S. 726 (1963); Williamson v. Lee Optical of Okla., Inc. , 348 U. S. 483 (1955).
That theorem, however, assumes a state of affairs in which the
choice does not intrude upon a protected liberty. Thus, while some
people might disagree about whether or not the flag should be
saluted, or disagree about the proposition that it may not be
defiled, we have ruled that a State may not compel or enforce one
view or the other. See West Virginia Bd. of Ed. v.
Barnette , 319 U.
S. 624 (1943); Texas v. Johnson , 491 U. S. 397 (1989).

															Our law affords constitutional protection to personal decisions
relating to marriage, procreation, contraception, family
relationships, child rearing, and education. Carey v.
Population Services International , 431 U. S., at 685. Our
cases recognize "the right of the individual , married or
single, 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, supra , at
453 (emphasis in original). Our precedents "have respected the
private realm of family life which the state cannot enter." Prince v. Massachusetts , 321 U. S. 158 , 166
(1944). These matters, involving the most intimate and personal
choices a person may make in a lifetime, choices central to
personal dignity and autonomy, are central to the liberty protected
by the Fourteenth Amendment. At the heart of liberty is the right
to define one's own concept of existence, of meaning, of the
universe, and of the mystery of human life. Beliefs about these
matters could not define the attributes of personhood were they
formed under compulsion of the State. [852] These considerations begin our analysis of the woman's interest
in terminating her pregnancy but cannot end it, for this reason:
though the abortion decision may originate within the zone of
conscience and belief, it is more than a philosophic exercise.
Abortion is a unique act. It is an act fraught with consequences
for others: for the woman who must live with the implications of
her decision; for the persons who perform and assist in the
procedure; for the spouse, family, and society which must confront
the knowledge that these procedures exist, procedures some deem
nothing short of an act of violence against innocent human life;
and, depending on one's beliefs, for the life or potential life
that is aborted. Though abortion is conduct, it does not follow
that the State is entitled to proscribe it in all instances. That
is because the liberty of the woman is at stake in a sense unique
to the human condition and so unique to the law. The mother who
carries a child to full term is subject to anxieties, to physical
constraints, to pain that only she must bear. That these sacrifices
have from the beginning of the human race been endured by woman
with a pride that ennobles her in the eyes of others and gives to
the infant a bond of love cannot alone be grounds for the State to
insist she make the sacrifice. Her suffering is too intimate and
personal for the State to insist, without more, upon its own vision
of the woman's role, however dominant that vision has been in the
course of our history and our culture. The destiny of the woman
must be shaped to a large extent on her own conception of her
spiritual imperatives and her place in society.

															It should be recognized, moreover, that in some critical
respects the abortion decision is of the same character as the
decision to use contraception, to which Griswold v.
Connecticut , Eisenstadt v. Baird , and Carey v.
Population Services International afford constitutional
protection. We have no doubt as to the correctness of those
decisions. They support [853] the reasoning in Roe relating to the woman's liberty
because they involve personal decisions concerning not only the
meaning of procreation but also human responsibility and respect
for it. As with abortion, reasonable people will have differences
of opinion about these matters. One view is based on such reverence
for the wonder of creation that any pregnancy ought to be welcomed
and carried to full term no matter how difficult it will be to
provide for the child and ensure its well-being. Another is that
the inability to provide for the nurture and care of the infant is
a cruelty to the child and an anguish to the parent. These are
intimate views with infinite variations, and their deep, personal
character underlay our decisions in Griswold, Eisenstadt ,
and Carey. The same concerns are present when the woman
confronts the reality that, perhaps despite her attempts to avoid
it, she has become pregnant.

															It was this dimension of personal liberty that Roe sought to protect, and its holding invoked the reasoning and the
tradition of the precedents we have discussed, granting protection
to substantive liberties of the person. Roe was, of
course, an extension of those cases and, as the decision itself
indicated, the separate States could act in some degree to further
their own legitimate interests in protecting prenatal life. The
extent to which the legislatures of the States might act to
outweigh the interests of the woman in choosing to terminate her
pregnancy was a subject of debate both in Roe itself and
in decisions following it.

															While we appreciate the weight of the arguments made on behalf
of the State in the cases before us, arguments which in their
ultimate formulation conclude that Roe should be
overruled, the reservations any of us may have in reaffirming the
central holding of Roe are outweighed by the explication
of individual liberty we have given combined with the force of stare decisis. We turn now to that doctrine. [854] III

															A

															The obligation to follow precedent begins with necessity, and a
contrary necessity marks its outer limit. With Cardozo, we
recognize that no judicial system could do society's work if it
eyed each issue afresh in every case that raised it. See B.
Cardozo, The Nature of the Judicial Process 149 (1921). Indeed, the
very concept of the rule of law underlying our own Constitution
requires such continuity over time that a respect for precedent is,
by definition, indispensable. See Powell, Stare Decisis and
Judicial Restraint, 1991 Journal of Supreme Court History 13, 16.
At the other extreme, a different necessity would make itself felt
if a prior judicial ruling should come to be seen so clearly as
error that its enforcement was for that very reason doomed.

															Even when the decision to overrule a prior case is not, as in
the rare, latter instance, virtually foreordained, it is common
wisdom that the rule of stare decisis is not an
"inexorable command," and certainly it is not such in every
constitutional case, see Burnet v. Coronado Oil & Gas
Co. , 285 U. S.
393 , 405-411 (1932) (Brandeis, J., dissenting). See also Payne v. Tennessee , 501 U. S. 808 , 842 (1991)
(SOUTER, J., joined by KENNEDY, J., concurring); Arizona v.
Rumsey , 467 U. S. 203, 212 (1984). Rather, when this Court
reexamines a prior holding, its judgment is customarily informed by
a series of prudential and pragmatic considerations designed to
test the consistency of overruling a prior decision with the ideal
of the rule of law, and to gauge the respective costs of
reaffirming and overruling a prior case. Thus, for example, we may
ask whether the rule has proven to be intolerable simply in defying
practical workability, Swift & Co. v. Wickham , 382 U. S. 111 ,
116 (1965); whether the rule is subject to a kind of reliance that
would lend a special hardship to the consequences of overruling and
add inequity to the cost of repudiation, e. g. , United
States v. Title Ins. & Trust [855] Co. , 265
U. S. 472 , 486 (1924); whether related principles of law have
so far developed as to have left the old rule no more than a
remnant of abandoned doctrine, see Patterson v. McLean Credit
Union , 491 U. S.
164 , 173-174 (1989); or whether facts have so changed, or come
to be seen so differently, as to have robbed the old rule of
significant application or justification, e. g. , Burnet,
supra, at 412 (Brandeis, J., dissenting).

															So in this case we may enquire whether Roe 's central
rule has been found unworkable; whether the rule's limitation on
state power could be removed without serious inequity to those who
have relied upon it or significant damage to the stability of the
society governed by it; whether the law's growth in the intervening
years has left Roe 's central rule a doctrinal anachronism
discounted by society; and whether Roe 's premises of fact
have so far changed in the ensuing two decades as to render its
central holding somehow irrelevant or unjustifiable in dealing with
the issue it addressed.

															1

															Although Roe has engendered opposition, it has in no
sense proven "unworkable," see Garcia v. San Antonio
Metropolitan Transit Authority , 469 U. S. 528 , 546
(1985), representing as it does a simple limitation beyond which a
state law is unenforceable. While Roe has, of course,
required judicial assessment of state laws affecting the exercise
of the choice guaranteed against government infringement, and
although the need for such review will remain as a consequence of
today's decision, the required determinations fall within judicial
competence.

															2

															The inquiry 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. Since the classic case for
weighing reliance heavily in favor of following the earlier rule
occurs in the commercial context, see Payne v. Tennes- [856] see, supra , at 828, where advance planning of great
precision is most obviously a necessity, it is no cause for
surprise that some would find no reliance worthy of consideration
in support of Roe .

															While neither respondents nor their amici in so many
words deny that the abortion right invites some reliance prior to
its actual exercise, one can readily imagine an argument stressing
the dissimilarity of this case to one involving property or
contract. Abortion is customarily chosen as an unplanned response
to the consequence of unplanned activity or to the failure of
conventional birth control, and except on the assumption that no
intercourse would have occurred but for Roe 's holding,
such behavior may appear to justify no reliance claim. Even if
reliance could be claimed on that unrealistic assumption, the
argument might run, any reliance interest would be de
minimis. This argument would be premised on the hypothesis
that reproductive planning could take virtually immediate account
of any sudden restoration of state authority to ban abortions.

															To eliminate the issue of reliance that easily, however, one
would need to limit cognizable reliance to specific instances of
sexual activity. But to do this would be simply to refuse to face
the fact that for two decades of economic and social developments,
people have organized intimate relationships 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.
See, e. g. , R. Petchesky, Abortion and Woman's Choice 109,
133, n. 7 (rev. ed. 1990). The Constitution serves human values,
and while the effect of reliance on Roe cannot be exactly
measured, neither can the certain cost of overruling Roe for people who have ordered their thinking and living around that
case be dismissed. [857] No evolution of legal principle has left Roe 's
doctrinal footings weaker than they were in 1973. No development of
constitutional law since the case was decided has implicitly or
explicitly left Roe behind as a mere survivor of obsolete
constitutional thinking.

															It will be recognized, of course, that Roe stands at an
intersection of two lines of decisions, but in whichever doctrinal
category one reads the case, the result for present purposes will
be the same. The Roe Court itself placed its holding in
the succession of cases most prominently exemplified by Griswold v. Connecticut , 381 U. S. 479 (1965). See Roe , 410 U. S., at 152-153. When it is so seen, Roe is clearly in no jeopardy, since subsequent
constitutional developments have neither disturbed, nor do they
threaten to diminish, the scope of recognized protection accorded
to the liberty relating to intimate relationships, the family, and
decisions about whether or not to beget or bear a child. See, e. g., Carey v. Population Services International , 431 U. S. 678 (1977); Moore v. East Cleveland , 431 U. S. 494 (1977). Roe , however, may be seen not only as an exemplar of Griswold liberty but as a rule (whether or not mistaken)
of personal autonomy and bodily integrity, with doctrinal affinity
to cases recognizing limits on governmental power to mandate
medical treatment or to bar its rejection. If so, our cases since Roe 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. Cruzan v.
Director, Mo. Dept. of Health , 497 U. S. 261 , 278
(1990); cf., e. g., Riggins v. Nevada , 504 U. S. 127 , 135
(1992); Washington v. Harper , 494 U. S. 210 (1990); see
also, e. g., Rochin v. California , 342 U. S. 165 (1952); Jacobson v. Massachusetts , 197 U. S. 11 , 24-30
(1905).

															Finally, one could classify Roe as sui
generis . If the case is so viewed, then there clearly has been
no erosion of its central determination. The original holding
resting on the [858] concurrence of seven Members of the Court in 1973 was expressly
affirmed by a majority of six in 1983, see Akron v. Akron
Center for Reproductive Health, Inc. , 462 U. S. 416 (Akron
I) , and by a majority of five in 1986, see Thornburgh v.
American College of Obstetricians and Gynecologists , 476 U. S. 747 , expressing
adherence to the constitutional ruling despite legislative efforts
in some States to test its limits. More recently, in Webster v.
Reproductive Health Services , 492 U. S. 490 (1989),
although two of the present authors questioned the trimester
framework in a way consistent with our judgment today, see id. , at 518 (REHNQUIST, C. J., joined by WHITE and
KENNEDY, JJ.); id. , at 529 (O'CONNOR, J., concurring in
part and concurring in judgment), a majority of the Court either
decided to reaffirm or declined to address the constitutional
validity of the central holding of Roe. See Webster , 492 U. S., at 521 (REHNQUIST, C. J., joined by
WHITE and KENNEDY, JJ.); id. , at 525-526 (O'CONNOR, J.,
concurring in part and concurring in judgment); id. , at
537, 553 (BLACKMUN, J., joined by Brennan and Marshall, JJ.,
concurring in part and dissenting in part); id. , at
561-563 (STEVENS, J., concurring in part and dissenting in
part).

															Nor will courts building upon Roe be likely to hand
down erroneous decisions as a consequence. Even on the assumption
that the central holding of Roe was in error, that error
would go only to the strength of the state interest in fetal
protection, not to the recognition afforded by the Constitution to
the woman's liberty. The latter aspect of the decision fits
comfortably within the framework of the Court's prior decisions,
including Skinner v. Oklahoma ex rel. Williamson , 316 U. S. 535 (1942); Griswold, supra ; Loving v. Virginia , 388 U. S. 1 (1967); and Eisenstadt v. Baird , 405 U. S. 438 (1972), the
holdings of which are "not a series of isolated points," but mark a
"rational continuum." Poe v. Ullman , 367 U. S., at 543
(Harlan, J., dissenting). As we described in [859] Carey v. Population Services International, supra , the
liberty which encompasses those decisions "includes 'the interest in independence in making certain kinds
of important decisions.' While the outer limits of this aspect of
[protected liberty] have not been marked by the Court, it is clear
that among the decisions that an individual may make without
unjustified government interference are personal decisions
'relating to marriage, procreation, contraception, family
relationships, and child rearing and education.'" 431 U. S., at
684-685 (citations omitted). The soundness of this prong of the Roe analysis is
apparent from a consideration of the alternative. If indeed the
woman's interest in deciding whether to bear and beget a child had
not been recognized as in Roe , the State might as readily
restrict a woman's right to choose to carry a pregnancy to term as
to terminate it, to further asserted state interests in population
control, or eugenics, for example. Yet Roe has been
sensibly relied upon to counter any such suggestions. E.
g. , Arnold v. Board of Education of Escambia County,
Ala. , 880 F.2d 305, 311 (CA11 1989) (relying upon Roe and concluding that government officials violate the Constitution
by coercing a minor to have an abortion); Avery v. County of
Burke , 660 F.2d 111, 115 (CA4 1981) (county agency inducing
teenage girl to undergo unwanted sterilization on the basis of
misrepresentation that she had sickle cell trait); see also In
re Quinlan , 70 N. J. 10, 355 A. 2d 647 (relying on Roe in finding a right to terminate medical treatment),
cert. denied sub nom. Garger v. New Jersey , 429 U. S. 922
(1976)). In any event, because Roe 's scope is confined by
the fact of its concern with postconception potential life, a
concern otherwise likely to be implicated only by some forms of
contraception protected independently under Griswold and
later cases, any error in Roe is unlikely to have serious
ramifications in future cases. [860] 4

															We have seen how time has overtaken some of Roe 's
factual assumptions: advances in maternal health care allow for
abortions safe to the mother later in pregnancy than was true in
1973, see Akron I, supra , at 429, n. 11, and advances in
neonatal care have advanced viability to a point somewhat earlier.
Compare Roe , 410 U. S., at 160, with Webster,
supra , at 515-516 (opinion of REHNQUIST, C. J.); see Akron
I , 462 U. S., at 457, and n. 5 (O'CONNOR, J., dissenting). But
these facts go only to the scheme of time limits on the realization
of competing interests, and the divergences from the factual
premises of 1973 have no bearing on the validity of Roe 's
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 whether viability occurs at approximately 28 weeks,
as was usual at the time of Roe , at 23 to 24 weeks, as it
sometimes does today, or at some moment even slightly earlier in
pregnancy, as it may if fetal respiratory capacity can somehow be
enhanced in the future. Whenever it may occur, the attainment of
viability may continue to serve as the critical fact, just as it
has done since Roe was decided; which is to say that no
change in Roe 's factual underpinning has left its central
holding obsolete, and none supports an argument for overruling
it.

															5

															The sum of the precedential enquiry to this point shows Roe 's underpinnings unweakened in any way affecting its
central holding. While it has engendered disapproval, it has not
been unworkable. An entire generation has come of age free to
assume Roe 's concept of liberty in defining the capacity
of women to act in society, and to make reproductive decisions; no
erosion of principle going to liberty or personal autonomy has left Roe 's central holding a doctrinal remnant; [861] Roe portends no developments at odds with other
precedent for the analysis of personal liberty; and no changes of
fact have rendered viability more or less appropriate as the point
at which the balance of interests tips. Within the bounds of normal stare decisis analysis, then, and subject to the
considerations on which it customarily turns, the stronger argument
is for affirming Roe 's central holding, with whatever
degree of personal reluctance any of us may have, not for
overruling it.

															B

															In a less significant case, stare decisis analysis
could, and would, stop at the point we have reached. But the
sustained and widespread debate Roe has provoked calls for
some comparison between that case and others of comparable
dimension that have responded to national controversies and taken
on the impress of the controversies addressed. Only two such
decisional lines from the past century present themselves for
examination, and in each instance the result reached by the Court
accorded with the principles we apply today.

															The first example is that line of cases identified with Lochner v. New York , 198 U. S. 45 (1905), which
imposed substantive limitations on legislation limiting economic
autonomy in favor of health and welfare regulation, adopting, in
Justice Holmes's view, the theory of laissez-faire. Id. ,
at 75 (dissenting opinion). The Lochner decisions were
exemplified by Adkins v. Children's Hospital of District of
Columbia , 261 U.
S. 525 (1923), in which this Court held it to be an
infringement of constitutionally protected liberty of contract to
require the employers of adult women to satisfy minimum wage
standards. Fourteen years later, West Coast Hotel Co. v.
Parrish , 300 U.
S. 379 (1937), signaled the demise of Lochner by
overruling Adkins . In the meantime, the Depression had
come and, with it, the lesson that seemed unmistakable to most
people by 1937, that the interpretation of contractual freedom
protected in Adkins rested on funda- [862] mentally false factual assumptions about the capacity of a
relatively unregulated market to satisfy minimal levels of human
welfare. See West Coast Hotel Co., supra , at 399. As
Justice Jackson wrote of the constitutional crisis of 1937 shortly
before he came on the bench: "The older world of laissez
faire was recognized everywhere outside the Court to be dead."
The Struggle for Judicial Supremacy 85 (1941). The facts upon which
the earlier case had premised a constitutional resolution of social
controversy had proven to be untrue, and history's demonstration of
their untruth not only justified but required the new choice of
constitutional principle that West Coast Hotel announced.
Of course, it was true that the Court lost something by its
misperception, or its lack of prescience, and the Court-packing
crisis only magnified the loss; but the clear demonstration that
the facts of economic life were different from those previously
assumed warranted the repudiation of the old law.

															The second comparison that 20th century history invites is with
the cases employing the separate-but-equal rule for applying the
Fourteenth Amendment's equal protection guarantee. They began with Plessy v. Ferguson , 163 U. S. 537 (1896),
holding that legislatively mandated racial segregation in public
transportation works no denial of equal protection, rejecting the
argument that racial separation enforced by the legal machinery of
American society treats the black race as inferior. The Plessy Court considered "the underlying fallacy of the
plaintiff's argument to consist in the assumption that the enforced
separation of the two races stamps the colored race with a badge of
inferiority. If this be so, it is not by reason of anything found
in the act, but solely because the colored race chooses to put that
construction upon it." Id. , at 551. Whether, as a matter
of historical fact, the Justices in the Plessy majority
believed this or not, see id. , at 557, 562 (Harlan, J.,
dissenting), this understanding of the implication of segregation
was the stated justification for the Court's opinion. But this
understanding of [863] the facts and the rule it was stated to justify were repudiated
in Brown v. Board of Education , 347 U. S. 483 (1954) (Brown I). As one commentator observed, the question
before the Court in Brown was "whether discrimination
inheres in that segregation which is imposed by law in the
twentieth century in certain specific states in the American Union.
And that question has meaning and can find an answer only on the
ground of history and of common knowledge about the facts of life
in the times and places aforesaid." Black, The Lawfulness of the
Segregation Decisions, 69 Yale

															The Court in Brown addressed these facts of life by
observing that whatever may have been the understanding in Plessy 's time of the power of segregation to stigmatize
those who were segregated with a "badge of inferiority," it was
clear by 1954 that legally sanctioned segregation had just such an
effect, to the point that racially separate public educational
facilities were deemed inherently unequal. 347 U. S., at 494-495.
Society's understanding of the facts upon which a constitutional
ruling was sought in 1954 was thus fundamentally different from the
basis claimed for the decision in 1896. While we think Plessy was wrong the day it was decided, see Plessy,
supra , at 552-564 (Harlan, J., dissenting), we must also
recognize that the Plessy Court's explanation for its
decision was so 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 justified but required. West Coast Hotel and Brown each rested on
facts, or an understanding of facts, changed from those which
furnished the claimed justifications for the earlier constitutional
resolutions. Each case was comprehensible as the Court's response
to facts that the country could understand, or had come to
understand already, but which the Court of an earlier day, as its
own declarations disclosed, had not been able to perceive. As the
decisions were thus comprehensible [864] they were also defensible, not merely as the victories of one
doctrinal school over another by dint of numbers (victories though
they were), but as applications of constitutional principle to
facts as they had not been seen by the Court before. In
constitutional adjudication as elsewhere in life, changed
circumstances may impose new obligations, and the thoughtful part
of the Nation could accept each decision to overrule a prior case
as a response to the Court's constitutional duty.

															Because the cases before us present no such occasion it could be
seen as no such response. Because neither the factual underpinnings
of Roe 's central holding nor our understanding of it has
changed (and because no other indication of weakened precedent has
been shown), the Court could not pretend to be reexamining the
prior law with any justification beyond a present doctrinal
disposition to come out differently from the Court of 1973. To
overrule prior law for no other reason than that would run counter
to the view repeated in our cases, that a decision to overrule
should rest on some special reason over and above the belief that a
prior case was wrongly decided. See, e. g. , Mitchell
v. W T. Grant Co. , 416 U. S. 600 , 636 (1974)
(Stewart, J., dissenting) ("A basic change in the law upon a ground
no firmer than a change in our membership invites the popular
misconception that this institution is little different from the
two political branches of the Government. No misconception could do
more lasting injury to this Court and to the system of law which it
is our abiding mission to serve"); Mapp v. Ohio , 367 U. S.
643, 677 (1961) (Harlan, J., dissenting).

															C

															The examination of the conditions justifying the repudiation of Adkins by West Coast Hotel and Plessy by Brown is enough to suggest the terrible price that would
have been paid if the Court had not overruled as it did. In the
present cases, however, as our analysis to this point makes clear,
the terrible price would be paid for overruling. Our analysis [865] would not be complete, however, without explaining why
overruling Roe 's central holding would not only reach an
unjustifiable result under principles of stare decisis ,
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. To understand why this would be so it
is necessary to understand the source of this Court's authority,
the conditions necessary for its preservation, and its relationship
to the country's understanding of itself as a constitutional
Republic.

															The root of American governmental power is revealed most clearly
in the instance of the power conferred by the Constitution upon the
Judiciary of the United States and specifically upon this Court. As
Americans of each succeeding generation are rightly told, the Court
cannot buy support for its decisions by spending money and, except
to a minor degree, it cannot independently coerce obedience to its
decrees. The Court's power lies, rather, in its legitimacy, a
product of substance and perception that shows itself in the
people's acceptance of the Judiciary as fit to determine what the
Nation's law means and to declare what it demands.

															The underlying substance of this legitimacy is of course the
warrant for the Court's decisions in the Constitution and the
lesser sources of legal principle on which the Court draws. That
substance is expressed in the Court's opinions, and our
contemporary understanding is such that a decision without
principled justification would be no judicial act at all. But even
when justification is furnished by apposite legal principle,
something more is required. Because not every conscientious claim
of principled justification will be accepted as such, the
justification claimed must be beyond dispute. The Court must take
care to speak and act in ways that allow people to accept its
decisions on the terms the Court claims for them, as grounded truly
in principle, not as compromises with social and political
pressures having, as such, no bearing on the principled choices
that the Court is [866] obliged to make. Thus, the Court's legitimacy depends on making
legally principled decisions under circumstances in which their
principled character is sufficiently plausible to be accepted by
the Nation.

															The need for principled action to be perceived as such is
implicated to some degree whenever this, or any other appellate
court, overrules a prior case. This is not to say, of course, that
this Court cannot give a perfectly satisfactory 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 significant facts or to understand principles of law
that eluded their predecessors and that justify departures from
existing decisions. However upsetting it may be to those most
directly affected when one judicially derived rule replaces
another, the country can accept some correction of error without
necessarily questioning the legitimacy of the Court.

															In two circumstances, however, the Court would almost certainly
fail to receive the benefit of the doubt in overruling prior cases.
There is, first, a point beyond which frequent overruling would
overtax the country's belief in the Court's good faith. Despite the
variety of reasons that may inform and justify a decision to
overrule, we cannot forget that such a decision is usually
perceived (and perceived correctly) as, at the least, a statement
that a prior decision was wrong. There is a limit to the amount of
error that can plausibly be imputed to prior Courts. If that limit
should be exceeded, disturbance of prior rulings would be taken as
evidence that justifiable reexamination of principle had given way
to drives for particular results in the short term. The legitimacy
of the Court would fade with the frequency of its vacillation.

															That first circumstance can be described as hypothetical; the
second is to the point here and now. Where, in the performance of
its judicial duties, the Court decides a case in such a way as to
resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its [867] decision has a dimension that the resolution of the normal case
does not carry. It is the dimension present whenever the Court's
interpretation of the Constitution calls the contending sides of a
national controversy to end their national division by accepting a
common mandate rooted in the Constitution.

															The Court is not asked to do this very often, having thus
addressed the Nation only twice in our lifetime, in the decisions
of Brown and Roe. But when the Court does act in
this way, its decision requires an equally rare precedential force
to counter the inevitable efforts to overturn it and to thwart its
implementation. Some of those efforts may be mere unprincipled
emotional reactions; others may proceed from principles worthy of
profound respect. But whatever the premises of opposition may be,
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. So to
overrule under fire in the absence of the most compelling reason to
reexamine a watershed decision would subvert the Court's legitimacy
beyond any serious question. Cf. Brown v. Board of
Education , 349
U. S. 294 , 300 (1955) ( Brown II ) ("[I]t should go
without saying that the vitality of thee] constitutional principles
[announced in Brown I,] cannot be allowed to yield simply
because of disagreement with them").

															The country's loss of confidence in the Judiciary would be
underscored by an equally certain and equally reasonable
condemnation for another failing in overruling unnecessarily and
under pressure. Some cost will be paid by anyone who approves or
implements a constitutional decision where it is unpopular, or who
refuses to work to undermine the decision or to force its reversal.
The price may be criticism or ostracism, or it may be violence. An
extra price will be paid by those who themselves disapprove of the
decision's results [868] when viewed outside of constitutional terms, but who
nevertheless struggle to accept it, because they respect the rule
of law. To all those who will be so tested by following, the Court
implicitly undertakes to remain steadfast, lest in the end a price
be paid for nothing. The promise of constancy, once given, binds
its maker for as long as the power to stand by the decision
survives and the understanding of the issue has not changed so
fundamentally as to render the commitment obsolete. From the
obligation of this promise this Court cannot and should not assume
any exemption when duty requires it to decide a case in conformance
with the Constitution. A willing breach of it would be nothing less
than a breach of faith, and no Court that broke its faith with the
people could sensibly expect credit for principle in the decision
by which it did that.

															It is true that diminished legitimacy may be restored, but only
slowly. Unlike the political branches, a Court thus weakened could
not seek to regain its position with a new mandate from the voters,
and even if the Court could somehow go to the polls, the loss of
its principled character could not be retrieved by the casting of
so many votes. Like the character of an individual, the legitimacy
of the Court must be earned over time. So, indeed, must be the
character of a Nation of people who aspire to live according to the
rule of law. Their belief in themselves as such a people is not
readily separable from their understanding of the Court invested
with the authority to decide their constitutional cases and speak
before all others for their constitutional ideals. If the Court's
legitimacy should be undermined, then, so would the country be in
its very ability to see itself through its constitutional ideals.
The Court's concern with legitimacy is not for the sake of the
Court, but for the sake of the Nation to which it is
responsible.

															The Court's duty in the present cases is clear. In 1973, it
confronted the already-divisive issue of governmental power [869] to limit personal choice to undergo abortion, 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, has grown only more intense. 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. It is therefore
imperative to adhere to the essence of Roe 's original
decision, and we do so today.

															IV

															From what we have said so far it follows that it is a
constitutional liberty of the woman to have some freedom to
terminate her pregnancy. We conclude that the basic decision in Roe was based on a constitutional analysis which we cannot
now repudiate. The woman's liberty is not so unlimited, however,
that from the outset the State cannot show its concern for the life
of the unborn, and at a later point in fetal development the
State's interest in life has sufficient force so that the right of
the woman to terminate the pregnancy can be restricted.

															That brings us, of course, to the point where much criticism has
been directed at Roe , a criticism that always inheres when
the Court draws a specific rule from what in the Constitution is
but a general standard. We conclude, however, that the urgent
claims of the woman to retain the ultimate control over her destiny
and her body, claims implicit in the meaning of liberty, require us
to perform that function. Liberty must not be extinguished for want
of a line that is clear. And it falls to us to give some real
substance to the woman's liberty to determine whether to carry her
pregnancy to full term. [870] We conclude the line should be drawn at viability, so that
before that time the woman has a right to choose to terminate her
pregnancy. We adhere to this principle for two reasons. First, as
we have said, is the doctrine of stare decisis. Any
judicial act of line-drawing may seem somewhat arbitrary, but Roe was a reasoned statement, elaborated with great care.
We have twice reaffirmed it in the face of great opposition. See Thornburgh v. American College of Obstetricians and
Gynecologists , 476 U. S., at 759; Akron I , 462 U. S.,
at 419-420. Although we must overrule those parts of Thornburgh and Akron I which, in our view, are
inconsistent with Roe 's statement that the State has a
legitimate interest in promoting the life or potential life of the
unborn, see infra , at 882-883, the central premise of
those cases represents an unbroken commitment by this Court to the
essential holding of Roe . It is that premise which we
reaffirm today.

															The second reason is that the concept of viability, as we noted
in Roe , is the time at which there is a realistic
possibility of maintaining and nourishing a life outside the womb,
so that the independent existence of the second life can in reason
and all fairness be the object of state protection that now
overrides the rights of the woman. See Roe v. Wade , 410 U.
S., at 163. Consistent with other constitutional norms,
legislatures may draw lines which appear arbitrary without the
necessity of offering a justification. But courts may not. We must
justify the lines we draw. And there is no line other than
viability which is more workable. To be sure, as we have said,
there may be some medical developments that affect the precise
point of viability, see supra , at 860, but this is an
imprecision within tolerable limits given that the medical
community and all those who must apply its discoveries will
continue to explore the matter. The viability line also has, as a
practical matter, an element of fairness. In some broad sense it
might be said that a woman who fails to act before viability has
consented to the State's intervention on behalf of the developing
child. [871] The woman's right to terminate her pregnancy before viability is
the most central principle of Roe v. Wade. It is a rule of
law and a component of liberty we cannot renounce.

															On the other side of the equation is the interest of the State
in the protection of potential life. The Roe Court
recognized the State's "important and legitimate interest in
protecting the potentiality of human life." Roe, supra , at
162. The weight to be given this state interest, not the strength
of the woman's interest, was the difficult question faced in Roe . We do not need to say whether each of us, had we been
Members of the Court when the valuation of the state interest came
before it as an original matter, would have concluded, as the Roe Court did, that its weight is insufficient to justify
a ban on abortions prior to viability even when it is subject to
certain exceptions. The matter is not before us in the first
instance, and coming as it does after nearly 20 years of litigation
in Roe 's wake we are satisfied that the immediate question
is not the soundness of Roe 's resolution of the issue, but
the precedential force that must be accorded to its holding. And we
have concluded that the essential holding of Roe should be
reaffirmed.

															Yet it must be remembered that Roe v. Wade speaks with
clarity in establishing not only the woman's liberty but also the
State's "important and legitimate interest in potential life." Roe, supra , at 163. That portion of the decision in Roe has been given too little acknowledgment and
implementation by the Court in its subsequent cases. Those cases
decided that any regulation touching upon the abortion decision
must survive strict scrutiny, to be sustained only if drawn in
narrow terms to further a compelling state interest. See, e.
g., Akron I, supra , at 427. Not all of the cases decided under
that formulation can be reconciled with the holding in Roe itself that the State has legitimate interests in the health of the
woman and in protecting the potential life within her. In resolving
this tension, we choose to rely upon Roe , as against the
later cases. [872] Roe established a trimester framework to govern
abortion regulations. Under this elaborate but rigid construct,
almost no regulation at all is permitted during the first trimester
of pregnancy; regulations designed to protect the woman's health,
but not to further the State's interest in potential life, are
permitted during the second trimester; and during the third
trimester, when the fetus is viable, prohibitions are permitted
provided the life or health of the mother is not at stake. Roe,
supra , at 163-166. Most of our cases since Roe have
involved the application of rules derived from the trimester
framework. See, e. g., Thornburgh v. American College of
Obstetricians and Gynecologists, supra; Akron I, supra. The trimester framework no doubt was erected to ensure that the
woman's right to choose not become so subordinate to the State's
interest in promoting fetal life that her choice exists in theory
but not in fact. We do not agree, however, that the trimester
approach is necessary to accomplish this objective. A framework of
this rigidity was unnecessary and in its later interpretation
sometimes contradicted the State's permissible exercise of its
powers.

															Though the woman has a right to choose to terminate or continue
her pregnancy before viability, it does not at all follow that the
State is prohibited from taking steps to ensure that this choice is
thoughtful and informed. Even in the earliest stages of pregnancy,
the State may enact rules and regulations designed to encourage her
to know that there are philosophic and social arguments of great
weight that can be brought to bear in favor of continuing the
pregnancy to full term and that there are procedures and
institutions to allow adoption of unwanted children as well as a
certain degree of state assistance if the mother chooses to raise
the child herself. "'[T]he Constitution does not forbid a State or
city, pursuant to democratic processes, from expressing a
preference for normal childbirth.'" Webster v. Reproductive
Health Services , 492 U. S., at 511 (opinion of [873] the Court) (quoting Poelker v. Doe , 432 U. S. 519 , 521
(1977)). It follows that States are free to enact laws to provide a
reasonable framework for a woman to make a decision that has such
profound and lasting meaning. This, too, we find consistent with Roe 's central premises, and indeed the inevitable
consequence of our holding that the State has an interest in
protecting the life of the unborn.

															We reject the trimester framework, which we do not consider to
be part of the essential holding of Roe . See Webster
v. Reproductive Health Services , 492 U. S., at 518 (opinion of
REHNQUIST, C. J.); id. , at 529 (O'CONNOR, J., concurring
in part and concurring in judgment) (describing the trimester
framework as "problematic"). Measures aimed at ensuring that a
woman's choice contemplates the consequences for the fetus do not
necessarily interfere with the right recognized in Roe ,
although those measures have been found to be inconsistent with the
rigid trimester framework announced in that case. A logical reading
of the central holding in Roe itself, and a necessary
reconciliation of the liberty of the woman and the interest of the
State in promoting prenatal life, require, in our view, that we
abandon the trimester framework as a rigid prohibition on all
previability regulation aimed at the protection of fetal life. The
trimester framework suffers from these basic flaws: in its
formulation it misconceives the nature of the pregnant woman's
interest; and in practice it undervalues the State's interest in
potential life, as recognized in Roe. As our jurisprudence relating to all liberties save perhaps
abortion has recognized, not every law which makes a right more
difficult to exercise is, ipso facto , an infringement of
that right. An example clarifies the point. We have held that not
every ballot access limitation amounts to an infringement of the
right to vote. Rather, the States are granted substantial
flexibility in establishing the framework within which voters
choose the candidates for whom they [874] wish to vote. Anderson v. Celebrezze , 460 U. S. 780 , 788 (1983); Norman v. Reed , 502 U. S. 279 (1992).

															The abortion right is similar. Numerous forms of state
regulation might have the incidental effect of increasing the cost
or decreasing the availability of medical care, whether for
abortion or any other medical procedure. The fact that a law which
serves a valid purpose, one not designed to strike at the right
itself, has the incidental effect of making it more difficult or
more expensive to procure an abortion cannot be enough to
invalidate it. Only where state regulation imposes an undue burden
on a woman's ability to make this decision does the power of the
State reach into the heart of the liberty protected by the Due
Process Clause. See Hodgson v. Minnesota , 497 U. S. 417 , 458-459
(1990) (O'CONNOR, J., concurring in part and concurring in judgment
in part); Ohio v. Akron Center for Reproductive Health , 497 U. S. 502 ,
519-520 (1990) ( Akron II ) (opinion of KENNEDY, J.); Webster v. Reproductive Health Services, supra , at 530
(O'CONNOR, J., concurring in part and concurring in judgment); Thornburgh v. American College of Obstetricians and
Gynecologists , 476 U. S., at 828 (O'CONNOR, J., dissenting); Simopoulos v. Virginia , 462 U. S. 506 , 520 (1983)
(O'CONNOR, J., concurring in part and concurring in judgment); Planned Parenthood Assn. of Kansas City, Mo., Inc. v.
Ashcroft , 462 U.
S. 476 , 505 (1983) (O'CONNOR, J., concurring in judgment in
part and dissenting in part); Akron I , 462 U. S., at 464
(O'CONNOR, J., joined by WHITE and REHNQUIST, JJ., dissenting); Bellotti v. Baird , 428 U. S. 132 , 147 (1976)
( Bellotti 1 ).

															For the most part, the Court's early abortion cases adhered to
this view. In Maher v. Roe , 432 U. S. 464 , 473-474
(1977), the Court explained: " Roe did not declare an
unqualified 'constitutional right to an abortion,' as the District
Court seemed to think. Rather, the right protects the woman from
unduly burdensome interference with her freedom to decide whether
to terminate her pregnancy." See [875] also Doe v. Bolton , 410 U. S. 179 , 198 (1973)
("[T]he interposition of the hospital abortion committee is unduly
restrictive of the patient's rights"); Bellotti I , supra , at 147 (State may not "impose undue
burdens upon a minor capable of giving an informed consent"); Harris v. McRae , 448 U. S. 297 , 314 (1980)
(citing Maher, supra). Cf. Carey v. Population
Services International , 431 U. S., at 688 ("[T]he same test
must be applied to state regulations that burden an individual's
right to decide to prevent conception or terminate pregnancy by
substantially limiting access to the means of effectuating that
decision as is applied to state statutes that prohibit the decision
entirely").

															These considerations of the nature of the abortion right
illustrate that it is an overstatement to describe it as a right to
decide whether to have an abortion "without interference from the
State." Planned Parenthood of Central Mo. v. Danforth , 428 U. S. 52 , 61
(1976). All abortion regulations interfere to some degree with a
woman's ability to decide whether to terminate her pregnancy. It
is, as a consequence, not surprising that despite the protestations
contained in the original Roe opinion to the effect that
the Court was not recognizing an absolute right, 410 U. S., at
154-155, the Court's experience applying the trimester framework
has led to the striking down of some abortion regulations which in
no real sense deprived women of the ultimate decision. Those
decisions went too far because the right recognized by Roe is a right "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.,
at 453. Not all governmental intrusion is of necessity unwarranted;
and that brings us to the other basic flaw in the trimester
framework: even in Roe 's terms, in practice it undervalues
the State's interest in the potential life within the woman. Roe v. Wade was express in its recognition of the
State's "important and legitimate interest[s] in preserving and
pro- [876] tecting the health of the pregnant woman [and] in protecting the
potentiality of human life." 410 U. S., at 162. The trimester
framework, however, does not fulfill Roe 's own promise
that the State has an interest in protecting fetal life or
potential life. Roe began the contradiction by using the
trimester framework to forbid any regulation of abortion designed
to advance that interest before viability. Id. , at 163.
Before viability, Roe and subsequent cases treat all
governmental attempts to influence a woman's decision on behalf of
the potential life within her as unwarranted. This treatment is, in
our judgment, incompatible with the recognition that there is a
substantial state interest in potential life throughout pregnancy.
Cf. Webster , 492 U. S., at 519 (opinion of REHNQUIST, C.
J.); Akron I, supra , at 461 (O'CONNOR, J.,
dissenting).

															The very notion that the State has a substantial interest in
potential life leads to the conclusion that not all regulations
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 appropriate means of reconciling the
State's interest with the woman's constitutionally protected
liberty.

															The concept of an undue burden has been utilized by the Court as
well as individual Members of the Court, including two of us, in
ways that could be considered inconsistent. See, e. g., Hodgson
v. Minnesota, supra , at 459-461 (O'CONNOR, J., concurring in
part and concurring in judgment); Akron II, supra , at
519-520 (opinion of KENNEDY, J.); Thornburgh v. American
College of Obstetricians and Gynecologists, supra , at 828-829
(O'CONNOR, J., dissenting); Akron I, supra , at 461-466
(O'CONNOR, J., dissenting); Harris v. McRae, supra , at
314; Maher v. Roe, supra , at 473; Beal v. Doe , 432 U. S. 438 ,
446 (1977); Bellotti I, supra , at 147. Because we set
forth a standard of general application to which we intend to
adhere, it is important to clarify what is meant by an undue
burden. [877] A finding of an undue burden is a shorthand for the conclusion
that a state regulation 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 because
the means chosen by the State to further the interest in potential
life must be calculated to inform the woman's free choice, not
hinder it. And a statute which, while furthering the interest in
potential life or some other valid state interest, has the effect
of placing a substantial obstacle in the path of a woman's choice
cannot be considered a permissible means of serving its legitimate
ends. To the extent that the opinions of the Court or of individual
Justices use the undue burden standard in a manner that is
inconsistent with this analysis, we set out what in our view should
be the controlling standard. Cf. McCleskey v. Zant , 499 U. S. 467 ,
489 (1991) (attempting "to define the doctrine of abuse of the writ
with more precision" after acknowledging tension among earlier
cases). In our considered judgment, an undue burden is an
unconstitutional burden. See Akron II , 497 U. S., at
519-520 (opinion of KENNEDY, J.). Understood another way, we answer
the question, left open in previous opinions discussing the undue
burden formulation, whether a law designed to further the State's
interest in fetal life which imposes an undue burden on the woman's
decision before fetal viability could be constitutional. See, e. g. , Akron I , 462 U. S., at 462-463 (O'CONNOR,
J., dissenting). The answer is no.

															Some guiding principles should emerge. What is at stake is the
woman's right to make the ultimate decision, not a right to be
insulated from all others in doing so. Regulations which do no more
than create a structural mechanism by which the State, or the
parent or guardian of a minor, may express profound respect for the
life of the unborn are permitted, if they are not a substantial
obstacle to the woman's exercise of the right to choose. See infra , at 899-900 (addressing Pennsylvania's parental
consent requirement). [878] Unless it has that effect on her right of choice, a state
measure designed to persuade her to choose childbirth over abortion
will be upheld if reasonably related to that goal. Regulations
designed to foster the health of a woman seeking an abortion are
valid if they do not constitute an undue burden.

															Even when jurists reason from shared premises, some disagreement
is inevitable. Compare Hodgson , 497 U. S., at 482-497
(KENNEDY, J., concurring in judgment in part and dissenting in
part), with id. , at 458-460 (O'CONNOR, J., concurring in
part and concurring in judgment in part). That is to be expected in
the application of any legal standard which must accommodate life's
complexity. We do not expect it to be otherwise with respect to the
undue burden standard. We give this summary:

															(a) To protect the central right recognized by Roe v.
Wade while at the same time accommodating the State's profound
interest in potential life, we will employ the undue burden
analysis as explained in this opinion. An undue burden exists, and
therefore a provision of law is invalid, if its purpose or effect
is to place a substantial obstacle in the path of a woman seeking
an abortion before the fetus attains viability.

															(b) We reject the rigid trimester framework of Roe v. Wade. To promote the State's profound interest in
potential life, throughout pregnancy the State may take measures to
ensure that the woman's choice is informed, and measures designed
to advance this interest will not be invalidated as long as 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. Unnecessary health regulations that have the purpose or
effect of presenting a substantial obstacle to a woman seeking an
abortion impose an undue burden on the right. [879] (d) Our adoption of the undue burden analysis does not disturb
the central holding of Roe v. Wade , and we reaffirm that
holding. 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) We also reaffirm Roe 's holding that "subsequent to
viability, the State in promoting 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." Roe v. Wade , 410 U. S., at 164-165.

															These principles control our assessment of the Pennsylvania
statute, and we now turn to the issue of the validity of its
challenged provisions.

															V

															The Court of Appeals applied what it believed to be the undue
burden standard and upheld each of the provisions except for the
husband notification requirement. We agree generally with this
conclusion, but refine the undue burden analysis in accordance with
the principles articulated above. We now consider the separate
statutory sections at issue.

															A

															Because it is central to the operation of various other
requirements, we begin with the statute's definition of medical
emergency. Under the statute, a medical emergency is "[t]hat condition which, on the basis of the physician's good
faith clinical judgment, so complicates the medical condition of a
pregnant woman as to necessitate the immediate abortion of her
pregnancy to avert her death or for which a delay will create
serious risk of substantial and irreversible impairment of a major
bodily function." 18 Pa. Cons. Stat. § 3203 (1990). [880] Petitioners argue that the definition is too narrow, contending
that it forecloses the possibility of an immediate abortion despite
some significant health risks. If the contention were correct, we
would be required to invalidate the restrictive operation of the
provision, for the essential holding of Roe forbids a
State to interfere with a woman's choice to undergo an abortion
procedure if continuing her pregnancy would constitute a threat to
her health. 410 U. S., at 164. See also Harris v. McRae ,
448 U. S., at 316.

															The District Court found that there were three serious
conditions which would not be covered by the statute: preeclampsia,
inevitable abortion, and premature ruptured membrane. 744 F. Supp.,
at 1378. Yet, as the Court of Appeals observed, 947 F. 2d, at
700-701, it is undisputed that under some circumstances each of
these conditions could lead to an illness with substantial and
irreversible consequences. While the definition could be
interpreted in an unconstitutional manner, the Court of Appeals
construed the phrase "serious risk" to include those circumstances. Id. , at 70l. It stated: "[W]e read the medical emergency
exception as intended by the Pennsylvania legislature to assure
that compliance with its abortion regulations would not in any way
pose a significant threat to the life or health of a woman." Ibid. As we said in Brockett v. Spokane Arcades,
Inc. , 472 U. S.
491 , 499-500 (1985): "Normally, . . . we defer to the
construction of a state statute given it by the lower federal
courts." Indeed, we have said that we will defer to lower court
interpretations of state law unless they amount to "plain" error. Palmer v. Hoffman , 318 U. S. 109 , 118
(1943). This "'refiect[s] our belief that district courts and
courts of appeals are better schooled in and more able to interpret
the laws of their respective States.'" Frisby v. Schultz ,
487 U. S. 474, 482 (1988) (citation omitted). We adhere to that
course today, and conclude that, as construed by the Court of
Appeals, the medical emergency definition imposes no undue burden
on a woman's abortion right. [881] B

															We next consider the informed consent requirement. 18 Pa. Cons.
Stat. § 3205 (1990). Except in a medical emergency, the statute
requires that at least 24 hours before performing an abortion a
physician inform the woman of the nature of the procedure, the
health risks of the abortion and of childbirth, and the "probable
gestational age of the unborn child." The physician or a qualified
nonphysician must inform the woman of the availability of printed
materials published by the State describing the fetus and providing
information about medical assistance for childbirth, information
about child support from the father, and a list of agencies which
provide adoption and other services as alternatives to abortion. An
abortion may not be performed unless the woman certifies in writing
that she has been informed of the availability of these printed
materials and has been provided them if she chooses to view
them.

															Our prior decisions establish that as with any medical
procedure, the State may require a woman to give her written
informed consent to an abortion. See Planned Parenthood of
Central Mo. v. Danforth , 428 U. S., at 67. In this respect,
the statute is unexceptional. Petitioners challenge the statute's
definition of informed consent because it includes the provision of
specific information by the doctor and the mandatory 24-hour
waiting period. The conclusions reached by a majority of the
Justices in the separate opinions filed today and the undue burden
standard adopted in this opinion require us to overrule in part
some of the Court's past decisions, decisions driven by the
trimester framework's prohibition of all previability regulations
designed to further the State's interest in fetal life.

															In Akron I , 462 U. S. 416 (1983), we
invalidated an ordinance which required that a woman seeking an
abortion be provided by her physician with specific information
"designed to influence the woman's informed choice between abortion
or childbirth." Id. , at 444. As we later described [882] the Akron I holding in Thornburgh v. American
College of Obstetricians and Gynecologists , 476 U. S., at 762,
there were two purported flaws in the Akron ordinance: the
information was designed to dissuade the woman from having an
abortion and the ordinance imposed "a rigid requirement that a
specific body of information be given in all cases, irrespective of
the particular needs of the patient . . . . " Ibid. To the extent Akron I and Thornburgh find a
constitutional violation when the government requires, as it does
here, the giving of truthful, nonmisleading information about the
nature of the procedure, the attendant health risks and those of
childbirth, and the "probable gestational age" of the fetus, those
cases go too far, are inconsistent with Roe 's
acknowledgment of an important interest in potential life, and are
overruled. This is clear even on the very terms of Akron I and Thornburgh. Those decisions, along with Danforth , recognize a substantial government interest
justifying a requirement that a woman be apprised of the health
risks of abortion and childbirth. E. g., Danforth, supra ,
at 66-67. It cannot be questioned that psychological well-being is
a facet of health. Nor can it be doubted that most women
considering an abortion would deem the impact on the fetus
relevant, if not dispositive, to the decision. In attempting to
ensure that a woman apprehend the full consequences of her
decision, the State furthers the legitimate purpose of reducing the
risk that a woman may elect an abortion, only to discover later,
with devastating psychological consequences, that her decision was
not fully informed. If the information the State requires to be
made available to the woman is truthful and not misleading, the
requirement may be permissible.

															We also see no reason why the State may not require doctors to
inform a woman seeking an abortion of the availability of materials
relating to the consequences to the fetus, even when those
consequences have no direct relation to her health. An example
illustrates the point. We would think [883] it constitutional for the State to require that in order for
there to be informed consent to a kidney transplant operation the
recipient must be supplied with information about risks to the
donor as well as risks to himself or herself. A requirement that
the physician make available information similar to that mandated
by the statute here was described in Thornburgh as "an
outright attempt to wedge the Commonwealth's message discouraging
abortion into the privacy of the informed-consent dialogue between
the woman and her physician." 476 U. S., at 762. We conclude,
however, that informed choice need not be defined in such narrow
terms that all considerations of the effect on the fetus are made
irrelevant. As we have made clear, we depart from the holdings of Akron I and Thornburgh to the extent that we
permit a State to further its legitimate goal of protecting the
life of the unborn by enacting legislation aimed at ensuring a
decision that is mature and informed, even when in so doing the
State expresses a preference for childbirth over abortion. In
short, requiring that the woman be informed of the availability of
information relating to fetal development and the assistance
available should she decide to carry the pregnancy to full term is
a reasonable measure to ensure an informed choice, one which might
cause the woman to choose childbirth over abortion. This
requirement cannot be considered a substantial obstacle to
obtaining an abortion, and, it follows, there is no undue
burden.

															Our prior cases also suggest that the "straitjacket," Thornburgh, supra , at 762 (quoting Danforth,
supra , at 67, n. 8), of particular information which must be
given in each case interferes with a constitutional right of
privacy between a pregnant woman and her physician. As a
preliminary matter, it is worth noting that the statute now before
us does not require a physician to comply with the informed consent
provisions "if he or she can demonstrate by a preponderance of the
evidence, that he or she reasonably believed that furnishing the
information would have resulted in a severely [884] adverse effect on the physical or mental health of the patient."
18 Pa. Cons. Stat. § 3205 (1990). In this respect, the statute does
not prevent the physician from exercising his or her medical
judgment.

															Whatever constitutional status the doctor-patient relation may
have as a general matter, in the present context it is derivative
of the woman's position. The doctor-patient relation does not
underlie or override the two more general rights under which the
abortion right is justified: the right to make family decisions and
the right to physical autonomy. On its own, the doctor-patient
relation here is entitled to the same solicitude it receives in
other contexts. Thus, a requirement that a doctor give a woman
certain information as part of obtaining her consent to an abortion
is, for constitutional purposes, no different from a requirement
that a doctor give certain specific information about any medical
procedure.

															All that is left of petitioners' argument is an asserted First
Amendment right of a physician not to provide information about the
risks of abortion, and childbirth, in a manner mandated by the
State. To be sure, the physician's First Amendment rights not to
speak are implicated, see Wooley v. Maynard , 430 U. S. 705 (1977), but
only as part of the practice of medicine, subject to reasonable
licensing and regulation by the State, cf. Whalen v. Roe , 429 U. S. 589 ,
603 (1977). We see no constitutional infirmity in the requirement
that the physician provide the information mandated by the State
here.

															The Pennsylvania statute also requires us to reconsider the
holding in Akron I that the State may not require that a
physician, as opposed to a qualified assistant, provide information
relevant to a woman's informed consent. 462 U. S., at 448. Since
there is no evidence on this record that requiring a doctor to give
the information as provided by the statute would amount in
practical terms to a substantial obstacle to a woman seeking an
abortion, we conclude that it is not [885] an undue burden. Our cases reflect the fact that the
Constitution gives the States broad latitude to decide that
particular functions may be performed only by licensed
professionals, even if an objective assessment might suggest that
those same tasks could be performed by others. See Williamson
v. Lee Optical of Okla., Inc. , 348 U. S. 483 (1955).
Thus, we uphold the provision as a reasonable means to ensure that
the woman's consent is informed.

															Our analysis of Pennsylvania's 24-hour waiting period between
the provision of the information deemed necessary to informed
consent and the performance of an abortion under the undue burden
standard requires us to reconsider the premise behind the decision
in Akron I invalidating a parallel requirement. In Akron I we said: "Nor are we convinced that the State's
legitimate concern that the woman's decision be informed is
reasonably served by requiring a 24-hour delay as a matter of
course." 462 U. S., at 450. We consider that conclusion to be
wrong. The idea that important decisions will be more informed and
deliberate if they follow some period of reflection does not strike
us as unreasonable, particularly where the statute directs that
important information become part of the background of the
decision. The statute, as construed by the Court of Appeals,
permits avoidance of the waiting period in the event of a medical
emergency and the record evidence shows that in the vast majority
of cases, a 24-hour delay does not create any appreciable health
risk. In theory, at least, the waiting period is a reasonable
measure to implement the State's interest in protecting the life of
the unborn, a measure that does not amount to an undue burden.

															Whether the mandatory 24-hour waiting period is nonetheless
invalid because in practice it is a substantial obstacle to a
woman's choice to terminate her pregnancy is a closer question. The
findings of fact by the District Court indicate that because of the
distances many women must travel to reach an abortion provider, the
practical effect will often be [886] a delay of much more than a day because the waiting period
requires that a woman seeking an abortion make at least two visits
to the doctor. The District Court also found that in many instances
this will increase the exposure of women seeking abortions to "the
harassment and hostility of antiabortion protestors demonstrating
outside a clinic." 744 F. Supp., at 1351. As a result, the District
Court found that for those women who have the fewest financial
resources, those who must travel long distances, and those who have
difficulty explaining their whereabouts to husbands, employers, or
others, the 24-hour waiting period will be "particularly
burdensome." Id. , at 1352.

															These findings are troubling in some respects, but they do not
demonstrate that the waiting period constitutes an undue burden. We
do not doubt that, as the District Court held, the waiting period
has the effect of "increasing the cost and risk of delay of
abortions," id. , at 1378, but the District Court did not
conclude that the increased costs and potential delays amount to
substantial obstacles. Rather, applying the trimester framework's
strict prohibition of all regulation designed to promote the
State's interest in potential life before viability, see id. , at 1374, the District Court concluded that the
waiting period does not further the state "interest in maternal
health" and "infringes the physician's discretion to exercise sound
medical judgment," id. , at 1378. Yet, as we have stated,
under the undue burden standard a State is permitted to enact
persuasive measures which favor childbirth over abortion, even if
those measures do not further a health interest. And while the
waiting period does limit a physician's discretion, that is not,
standing alone, a reason to invalidate it. In light of the
construction given the statute's definition of medical emergency by
the Court of Appeals, and the District Court's findings, we cannot
say that the waiting period imposes a real health risk.

															We also disagree with the District Court's conclusion that the
"particularly burdensome" effects of the waiting period [887] on some women require its invalidation. A particular burden is
not of necessity a substantial obstacle. Whether a burden falls on
a particular group is a distinct inquiry from whether it is a
substantial obstacle even as to the women in that group. And the
District Court did not conclude that the waiting period is such an
obstacle even for the women who are most burdened by it. Hence, on
the record before us, and in the context of this facial challenge,
we are not convinced that the 24-hour waiting period constitutes an
undue burden.

															We are left with the argument that the various aspects of the
informed consent requirement are unconstitutional because they
place barriers in the way of abortion on demand. Even the broadest
reading of Roe , however, has not suggested that there is a
constitutional right to abortion on demand. See, e. g. , Doe v. Bolton , 410 U. S., at 189. Rather, the right
protected by Roe is a right to decide to terminate a
pregnancy free of undue interference by the State. Because the
informed consent requirement facilitates the wise exercise of that
right, it cannot be classified as an interference with the right Roe protects. The informed consent requirement is not an
undue burden on that right.

															C

															Section 3209 of Pennsylvania's abortion law provides, except in
cases of medical emergency, that no physician shall perform an
abortion on a married woman without receiving a signed statement
from the woman that she has notified her spouse that she is about
to undergo an abortion. The woman has the option of providing an
alternative signed statement certifying that her husband is not the
man who impregnated her; that her husband could not be located;
that the pregnancy is the result of spousal sexual assault which
she has reported; or that the woman believes that notifying her
husband will cause him or someone else to inflict bodily injury
upon her. A physician who performs an abortion on [888] a married woman without receiving the appropriate signed
statement will have his or her license revoked, and is liable to
the husband for damages.

															The District Court heard the testimony of numerous expert
witnesses, and made detailed findings of fact regarding the effect
of this statute. These included: "273. The vast majority of women consult their husbands prior to
deciding to terminate their pregnancy . . . .

															"279. The 'bodily injury' exception could not be invoked by a
married woman whose husband, if notified, would, in her reasonable
belief, threaten to (a) publicize her intent to have an abortion to
family, friends or acquaintances; (b) retaliate against her in
future child custody or divorce proceedings; (c) inflict
psychological intimidation or emotional harm upon her, her children
or other persons; (d) inflict bodily harm on other persons such as
children, family members or other loved ones; or (e) use his
control over finances to deprive of necessary monies for herself or
her children . . . .

															"281. Studies reveal that family violence occurs in two million
families in the United States. This figure, however, is a
conservative one that substantially understates (because battering
is usually not reported until it reaches life-threatening
proportions) the actual number of families affected by domestic
violence. In fact, researchers estimate that one of every two women
will be battered at some time in their life
. . . .

															"282. A wife may not elect to notify her husband of her
intention to have an abortion for a variety of reasons, including
the husband's illness, concern about her own health, the imminent
failure of the marriage, or the husband's absolute opposition to
the abortion . . . .

															"283. The required filing of the spousal consent form would
require plaintiff-clinics to change their counseling [889] procedures and force women to reveal their most intimate
decision-making on pain of criminal sanctions. The confidentiality
of these revelations could not be guaranteed, since the woman's
records are not immune from subpoena . . . .

															"284. Women of all class levels, educational backgrounds, and
racial, ethnic and religious groups are battered
. . . .

															"285. Wife-battering or abuse can take on many physical and
psychological forms. The nature and scope of the battering can
cover a broad range of actions and be gruesome and torturous
. . . .

															"286. Married women, victims of battering, have been killed in
Pennsylvania and throughout the United States
. . . .

															"287. Battering can often involve a substantial amount of sexual
abuse, including marital rape and sexual mutilation
. . . .

															"288. In a domestic abuse situation, it is common for the
battering husband to also abuse the children in an attempt to
coerce the wife . . . .

															"289. Mere notification of pregnancy is frequently a flashpoint
for battering and violence within the family. The number of
battering incidents is high during the pregnancy and often the
worst abuse can be associated with pregnancy . . . .
The battering husband may deny parentage and use the pregnancy as
an excuse for abuse . . . .

															"290. Secrecy typically shrouds abusive families.

															Family members are instructed not to tell anyone, especially
police or doctors, about the abuse and violence. Battering husbands
often threaten their wives or her children with further abuse if
she tells an outsider of the violence and tells her that nobody
will believe her. A battered woman, therefore, is highly unlikely
to disclose [890] the violence against her for fear of retaliation by the abuser
. . . .

															"291. Even when confronted directly by medical personnel or
other helping professionals, battered women often will not admit to
the battering because they have not admitted to themselves that
they are battered . . . .

															"294. A woman in a shelter or a safe house unknown to her
husband is not 'reasonably likely' to have bodily harm inflicted
upon her by her batterer, however her attempt to notify her husband
pursuant to section 3209 could accidentally disclose her
whereabouts to her husband. Her fear of future ramifications would
be realistic under the circumstances.

															"295. Marital rape is rarely discussed with others or reported
to law enforcement authorities, and of those reported only few are
prosecuted . . . .

															"296. It is common for battered women to have sexual intercourse
with their husbands to avoid being battered. While this type of
coercive sexual activity would be spousal sexual assault as defined
by the Act, many women may not consider it to be so and others
would fear disbelief . . . .

															"297. The marital rape exception to section 3209 cannot be
claimed by women who are victims of coercive sexual behavior other
than penetration. The 90-day reporting requirement of the spousal
sexual assault statute, 18 Pa. Con. Stat. Ann. § 3218(c), further
narrows the class of sexually abused wives who can claim the
exception, since many of these women may be psychologically unable
to discuss or report the rape for several years after the incident
. . . .

															"298. Because of the nature of the battering relationship,
battered women are unlikely to avail themselves of the exceptions
to section 3209 of the Act, regardless of [891] whether the section applies to them." 744 F. Supp., at 1360-1362
(footnote omitted). These findings are supported by studies of domestic violence.
The American Medical Association (AMA) has published a summary of
the recent research in this field, which indicates that in an
average 12-month period in this country, approximately two million
women are the victims of severe assaults by their male partners. In
a 1985 survey, women reported that nearly one of every eight
husbands had assaulted their wives during the past year. The AMA
views these figures as "marked underestimates," because the nature
of these incidents discourages women from reporting them, and
because surveys typically exclude the very poor, those who do not
speak English well, and women who are homeless or in institutions
or hospitals when the survey is conducted. According to the AMA,
"[r]esearchers on family violence agree that the true incidence of
partner violence is probably double the above estimates;
or four million severely assaulted women per year. Studies on
prevalence suggest that from one-fifth to one-third of all women
will be physically assaulted by a partner or ex-partner during
their lifetime." AMA Council on Scientific Affairs, Violence
Against Women 7 (1991) (emphasis in original). Thus on an average
day in the United States, nearly 11,000 women are severely
assaulted by their male partners. Many of these incidents involve
sexual assault. Id. , at 3-4; Shields & Hanneke,
Battered Wives' Reactions to Marital Rape, in The Dark Side of
Families: Current Family Violence Research 131, 144 (D. Finkelhor,
R. Gelles, G. Hataling, & M. Straus eds. 1983). In families
where wifebeating takes place, moreover, child abuse is often
present as well. Violence Against Women, supra , at 12.

															Other studies fill in the rest of this troubling picture.

															Physical violence is only the most visible form of abuse.
Psychological abuse, particularly forced social and economic
isolation of women, is also common. L. Walker, The Bat- [892] tered Woman Syndrome 27-28 (1984). Many victims of domestic
violence remain with their abusers, perhaps because they perceive
no superior alternative. Herbert, Silver, & Ellard, Coping with
an Abusive Relationship: 1. How and Why do Women Stay?, 53 J.
Marriage & the Family 311 (1991). Many abused women who find
temporary refuge in shelters return to their husbands, in large
part because they have no other source of income. Aguirre, Why Do
They Return? Abused Wives in Shelters, 30 J. Nat. Assn. of Social
Workers 350, 352 (1985). Returning to one's abuser can be
dangerous. Recent Federal Bureau of Investigation statistics
disclose that 8.8 percent of all homicide victims in the United
States are killed by their spouses. Mercy & Saltzman, Fatal
Violence Among Spouses in the United States, 1976-85, 79 Am. J.
Public Health 595 (1989). Thirty percent of female homicide victims
are killed by their male partners. Domestic Violence: Terrorism in
the Home, Hearing before the Subcommittee on Children, Family,
Drugs and Alcoholism of the Senate Committee on Labor and Human
Resources, 101st Cong., 2d Sess., 3 (1990).

															The limited research that has been conducted with respect to
notifying one's husband about an abortion, although involving
samples too small to be representative, also supports the District
Court's findings of fact. The vast majority of women notify their
male partners of their decision to obtain an abortion. In many
cases in which married women do not notify their husbands, the
pregnancy is the result of an extramarital affair. Where the
husband is the father, the primary reason women do not notify their
husbands is that the husband and wife are experiencing marital
difficulties, often accompanied by incidents of violence. Ryan
& Plutzer, When Married Women Have Abortions: Spousal
Notification and Marital Interaction, 51 J. Marriage & the
Family 41, 44 (1989).

															This information and the District Court's findings reinforce
what common sense would suggest. In well- [893] functioning marriages, spouses discuss important intimate
decisions such as whether to bear a child. But there are millions
of women in this country who are the victims of regular physical
and psychological abuse at the hands of their husbands. Should
these women become pregnant, they may have very good reasons for
not wishing to inform their husbands of their decision to obtain an
abortion. Many may have justifiable fears of physical abuse, but
may be no less fearful of the consequences of reporting prior abuse
to the Commonwealth of Pennsylvania. Many may have a reasonable
fear that notifying their husbands will provoke further instances
of child abuse; these women are not exempt from § 3209's
notification requirement. Many may fear devastating forms of
psychological abuse from their husbands, including verbal
harassment, threats of future violence, the destruction of
possessions, physical confinement to the home, the withdrawal of
financial support, or the disclosure of the abortion to family and
friends. These methods of psychological abuse may act as even more
of a deterrent to notification than the possibility of physical
violence, but women who are the victims of the abuse are not exempt
from § 3209's notification requirement. And many women who are
pregnant as a result of sexual assaults by their husbands will be
unable to avail themselves of the exception for spousal sexual
assault, § 3209(b)(3), because the exception requires that the
woman have notified law enforcement authorities within 90 days of
the assault, and her husband will be notified of her report once an
investigation begins, § 3128(c). If anything in this field is
certain, it is that victims of spousal sexual assault are extremely
reluctant to report the abuse to the government; hence, a great
many spousal rape victims will not be exempt from the notification
requirement imposed by § 3209.

															The spousal notification requirement is thus likely to prevent a
significant number of women from obtaining an abortion. It does not
merely make abortions a little more difficult or expensive to
obtain; for many women, it will impose [894] a substantial obstacle. We must not blind ourselves to the fact
that the significant number of women who fear for their safety and
the safety of their children are likely to be deterred from
procuring an abortion as surely as if the Commonwealth had outlawed
abortion in all cases.

															Respondents attempt to avoid the conclusion that § 3209 is
invalid by pointing out that it imposes almost no burden at all for
the vast majority of women seeking abortions. They begin by noting
that only about 20 percent of the women who obtain abortions are
married. They then note that of these women about 95 percent notify
their husbands of their own volition. Thus, respondents argue, the
effects of § 3209 are felt by only one percent of the women who
obtain abortions. Respondents argue that since some of these women
will be able to notify their husbands without adverse consequences
or will qualify for one of the exceptions, the statute affects
fewer than one percent of women seeking abortions. For this reason,
it is asserted, the statute cannot be invalid on its face. See
Brief for Respondents 83-86. We disagree with respondents' basic
method of analysis.

															The analysis does not end with the one percent of women upon
whom the statute operates; it begins there. Legislation is measured
for consistency with the Constitution by its impact on those whose
conduct it affects. For example, we would not say that a law which
requires a newspaper to print a candidate's reply to an unfavorable
editorial is valid on its face because most newspapers would adopt
the policy even absent the law. See Miami Herald Publishing Co.
v. Tornillo , 418
U. S. 241 (1974). The proper focus of constitutional inquiry is
the group for whom the law is a restriction, not the group for whom
the law is irrelevant.

															Respondents' argument itself gives implicit recognition to this
principle, at one of its critical points. Respondents speak of the
one percent of women seeking abortions who are married and would
choose not to notify their husbands of their plans. By selecting as
the controlling class women [895] who wish to obtain abortions, rather than all women or all
pregnant women, respondents in effect concede that § 3209 must be
judged by reference to those for whom it is an actual rather than
an irrelevant restriction. Of course, as we have said, § 3209's
real target is narrower even than the class of women seeking
abortions identified by the State: it is married women seeking
abortions who do not wish to notify their husbands of their
intentions and who do not qualify for one of the statutory
exceptions to the notice requirement. The unfortunate yet
persisting conditions we document above will mean that in a large
fraction of the cases in which § 3209 is relevant, it will operate
as a substantial obstacle to a woman's choice to undergo an
abortion. It is an undue burden, and therefore invalid.

															This conclusion is in no way inconsistent with our decisions
upholding parental notification or consent requirements. See, e. g., Akron II , 497 U. S., at 510-519; Bellotti v.
Baird , 443 U. S.
622 (1979) (Bellotti II); Planned Parenthood of Central Mo.
v. Danforth , 428 U. S., at 74. Those enactments, and our
judgment that they are constitutional, are based on the quite
reasonable assumption that minors will benefit from consultation
with their parents and that children will often not realize that
their parents have their best interests at heart. We cannot adopt a
parallel assumption about adult women.

															We recognize that a husband has a "deep and proper concern and
interest . . . in his wife's pregnancy and in the growth
and development of the fetus she is carrying." Danforth,
supra , at 69. With regard to the children he has fathered and
raised, the Court has recognized his "cognizable and substantial"
interest in their custody. Stanley v. Illinois , 405 U. S. 645 , 651-652
(1972); see also Quilloin v. Walcott , 434 U. S. 246 (1978); Caban v. Mohammed , 441 U. S. 380 (1979); Lehr v. Robertson , 463 U. S. 248 (1983). If
these cases concerned a State's ability to require the mother to
notify the father before taking some action with respect to a
living [896] child raised by both, therefore, it would be reasonable to
conclude as a general matter that the father's interest in the
welfare of the child and the mother's interest are equal.

															Before birth, however, the issue takes on a very different cast.
It is an inescapable biological fact that state regulation with
respect to the child a woman is carrying will have a far greater
impact on the mother's liberty than on the father's. The effect of
state regulation on a woman's protected liberty is doubly deserving
of scrutiny in such a case, as the State has touched not only upon
the private sphere of the family but upon the very bodily integrity
of the pregnant woman. Cf. Cruzan v. Director, Mo. Dept. of
Health , 497 U. S., at 281. The Court has held that "when the
wife and the husband disagree on this decision, the view of only
one of the two marriage partners can prevail. Inasmuch as it is the
woman who physically bears the child and who is the more directly
and immediately affected by the pregnancy, as between the two, the
balance weighs in her favor." Danforth, supra , at 71. This
conclusion rests upon the basic nature of marriage and the nature
of our Constitution: "[T]he marital couple is not an independent
entity with a mind and heart of its own, but an association of two
individuals each with a separate intellectual and emotional makeup.
If the right of privacy means anything, it is the right of the individual , married or single, 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., at 453 (emphasis in
original). The Constitution protects individuals, men and women
alike, from unjustified state interference, even when that
interference is enacted into law for the benefit of their
spouses.

															There was a time, not so long ago, when a different
understanding of the family and of the Constitution prevailed. In Bradwell v. State , 16 Wall. 130 (1873), three
Members of this [897] Court reaffirmed the common-law principle that "a woman had no
legal existence separate from her husband, who was regarded as her
head and representative in the social state; and, notwithstanding
some recent modifications of this civil status, many of the special
rules of law flowing from and dependent upon this cardinal
principle still exist in full force in most States." Id. ,
at 141 (Bradley, J., joined by Swayne and Field, JJ., concurring in
judgment). Only one generation has passed since this Court observed
that "woman is still regarded as the center of home and family
life," with attendant "special responsibilities" that precluded
full and independent legal status under the Constitution. Hoyt
v. Florida , 368
U. S. 57 , 62 (1961). These views, of course, are no longer
consistent with our understanding of the family, the individual, or
the Constitution.

															In keeping with our rejection of the common-law understanding of
a woman's role within the family, the Court held in Danforth that the Constitution does not permit a State to
require a married woman to obtain her husband's consent before
undergoing an abortion. 428 U. S., at 69. The principles that
guided the Court in Danforth should be our guides today.
For the great many women who are victims of abuse inflicted by
their husbands, or whose children are the victims of such abuse, a
spousal notice requirement enables the husband to wield an
effective veto over his wife's decision. Whether the prospect of
notification itself deters such women from seeking abortions, or
whether the husband, through physical force or psychological
pressure or economic coercion, prevents his wife from obtaining an
abortion until it is too late, the notice requirement will often be
tantamount to the veto found unconstitutional in Danforth .
The women most affected by this law-those who most reasonably fear
the consequences of notifying their husbands that they are
pregnant-are in the gravest danger. [898] The husband's interest in the life of the child his wife is
carrying does not permit the State to empower him with this
troubling degree of authority over his wife. The contrary view
leads to consequences reminiscent of the common law. A husband has
no enforceable right to require a wife to advise him before she
exercises her personal choices. If a husband's interest in the
potential life of the child outweighs a wife's liberty, the State
could require a married woman to notify her husband before she uses
a postfertilization contraceptive. Perhaps next in line would be a
statute requiring pregnant married women to notify their husbands
before engaging in conduct causing risks to the fetus. After all,
if the husband's interest in the fetus' safety is a sufficient
predicate for state regulation, the State could reasonably conclude
that pregnant wives should notify their husbands before drinking
alcohol or smoking. Perhaps married women should notify their
husbands before using contraceptives or before undergoing any type
of surgery that may have complications affecting the husband's
interest in his wife's reproductive organs. And if a husband's
interest justifies notice in any of these cases, one might
reasonably argue that it justifies exactly what the Danforth Court held it did not justify-a requirement of
the husband's consent as well. A State may not give to a man the
kind of dominion over his wife that parents exercise over their
children.

															Section 3209 embodies a view of marriage consonant with the
common-law status of married women but repugnant to our present
understanding of marriage and of the nature of the rights secured
by the Constitution. Women do not lose their constitutionally
protected liberty when they marry. The Constitution protects all
individuals, male or female, married or unmarried, from the abuse
of governmental power, even where that power is employed for the
supposed benefit of a member of the individual's family. These
considerations confirm our conclusion that § 3209 is invalid. [899] D

															We next consider the parental consent provision. Except in a
medical emergency, an unemancipated young woman under 18 may not
obtain an abortion unless she and one of her parents (or guardian)
provides informed consent as defined above. If neither a parent nor
a guardian provides consent, a court may authorize the performance
of an abortion upon a determination that the young woman is mature
and capable of giving informed consent and has in fact given her
informed consent, or that an abortion would be in her best
interests.

															We have been over most of this ground before. Our cases
establish, and we reaffirm today, that a State may require a minor
seeking an abortion to obtain the consent of a parent or guardian,
provided that there is an adequate judicial bypass procedure. See, e. g., Akron II , 497 U. S., at 510-519; Hodgson ,
497 U. S., at 461 (O'CONNOR, J., concurring in part and concurring
in judgment in part); id. , at 497-501 (KENNEDY, J.,
concurring in judgment in part and dissenting in part); Akron
I , 462 U. S., at 440; Bellotti II , 443 U. S., at
643-644 (plurality opinion). Under these precedents, in our view,
the one-parent consent requirement and judicial bypass procedure
are constitutional.

															The only argument made by petitioners respecting this provision
and to which our prior decisions do not speak is the contention
that the parental consent requirement is invalid because it
requires informed parental consent. For the most part, petitioners'
argument is a reprise of their argument with respect to the
informed consent requirement in general, and we reject it for the
reasons given above. Indeed, some of the provisions regarding
informed consent have particular force with respect to minors: the
waiting period, for example, may provide the parent or parents of a
pregnant young woman the opportunity to consult with her in
private, and to discuss the consequences of her decision in [900] the context of the values and moral or religious principles of
their family. See Hodgson, supra , at 448-449 (opinion of
STEVENS, J.).

															E

															Under the recordkeeping and reporting requirements of the
statute, every facility which performs abortions is required to
file a report stating its name and address as well as the name and
address of any related entity, such as a controlling or subsidiary
organization. In the case of state-funded institutions, the
information becomes public.

															For each abortion performed, a report must be filed identifying:
the physician (and the second physician where required); the
facility; the referring physician or agency; the woman's age; the
number of prior pregnancies and prior abortions she has had;
gestational age; the type of abortion procedure; the date of the
abortion; whether there were any pre-existing medical conditions
which would complicate pregnancy; medical complications with the
abortion; where applicable, the basis for the determination that
the abortion was medically necessary; the weight of the aborted
fetus; and whether the woman was married, and if so, whether notice
was provided or the basis for the failure to give notice. Every
abortion facility must also file quarterly reports showing the
number of abortions performed broken down by trimester. See 18 Pa.
Cons. Stat. §§ 3207, 3214 (1990). In all events, the identity of
each woman who has had an abortion remains confidential.

															In Danforth , 428 U. S., at 80, we held that
recordkeeping and reporting provisions "that are reasonably
directed to the preservation of maternal health and that properly
respect a patient's confidentiality and privacy are permissible."
We think that under this standard, all the provisions at issue
here, except that relating to spousal notice, are constitutional.
Although they do not relate to the State's interest in informing
the woman's choice, they do relate to health. The collection of
information with respect to actual patients [901] is a vital element of medical research, and so it cannot be said
that the requirements serve no purpose other than to make abortions
more difficult. Nor do we find that the requirements impose a
substantial obstacle to a woman's choice. At most they might
increase the cost of some abortions by a slight amount. While at
some point increased cost could become a substantial obstacle,
there is no such showing on the record before us.

															Subsection (12) of the reporting provision requires the
reporting of, among other things, a married woman's "reason for
failure to provide notice" to her husband. § 3214(a)(12). This
provision in effect requires women, as a condition of obtaining an
abortion, to provide the Commonwealth with the precise information
we have already recognized that many women have pressing reasons
not to reveal. Like the spousal notice requirement itself, this
provision places an undue burden on a woman's choice, and must be
invalidated for that reason.

															VI

															Our Constitution is a covenant running from the first generation
of Americans to us and then to future generations. It is a coherent
succession. Each generation must learn anew that the Constitution's
written terms embody ideas and aspirations that must survive more
ages than one. We accept our responsibility not to retreat from
interpreting the full meaning of the covenant in light of all of
our precedents. We invoke it once again to define the freedom
guaranteed by the Constitution's own promise, the promise of
liberty.

															***

															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 for proceedings consistent with this opinion, including
consideration of the question of severability.

															It is so ordered. [902] APPENDIX TO OPINION OF O'CONNOR, KENNEDY, AND SOUTER, JJ.

															Selected Provisions of the 1988 and 1989 Amendments to the
Pennsylvania Abortion Control Act of 1982

															18 PA. CONS. STAT. (1990).

															"§ 3203. Definitions.

															. . . . .

															"'Medical emergency.' That condition which, on the basis of the
physician's good faith clinical judgment, so complicates the
medical condition of a pregnant woman as to necessitate the
immediate abortion of her pregnancy to avert her death or for which
a delay will create serious risk of substantial and irreversible
impairment of major bodily function."

															"§ 3205. Informed consent.

															"(a) General rule.--No abortion shall be performed or induced
except with the voluntary and informed consent of the woman upon
whom the abortion is to be performed or induced. Except in the case
of a medical emergency, consent to an abortion is voluntary and
informed if and only if: "(1) At least 24 hours prior to the abortion, the physician who
is to perform the abortion or the referring physician has orally
informed the woman of: "(i) The nature of the proposed procedure or treatment and of
those risks and alternatives to the procedure or treatment that a
reasonable patient would consider material to the decision of
whether or not to undergo the abortion.

															"(ii) The probable gestational age of the unborn child at the
time the abortion is to be performed. "(iii) The medical risks
associated with carrying her child to term. "(2) At least 24 hours prior to the abortion, the physician who
is to perform the abortion or the referring physician, or a
qualified physician assistant, health care practitioner, technician
or social worker to whom the re- [903] sponsibility has been delegated by either physician, has
informed the pregnant woman that: "(i) The department publishes printed materials which describe
the unborn child and list agencies which offer alternatives to
abortion and that she has a right to review the printed materials
and that a copy will be provided to her free of charge if she
chooses to review it.

															"(ii) Medical assistance benefits may be available for prenatal
care, childbirth and neonatal care, and that more detailed
information on the availability of such assistance is contained in
the printed materials published by the department.

															"(iii) The father of the unborn child is liable to assist in the
support of her child, even in instances where he has offered to pay
for the abortion. In the case of rape, this information may be
omitted. "(3) A copy of the printed materials has been provided to the
woman if she chooses to view these materials. "(4) The pregnant woman certifies in writing, prior to the
abortion, that the information required to be provided under
paragraphs (1), (2) and (3) has been provided. "(b) Emergency.--Where a medical emergency compels the
performance of an abortion, the physician shall inform the woman,
prior to the abortion if possible, of the medical indications
supporting his judgment that an abortion is necessary to avert her
death or to avert substantial and irreversible impairment of major
bodily function.

															"(c) Penalty.--Any physician who violates the provisions of this
section is guilty of 'unprofessional conduct' and his license for
the practice of medicine and surgery shall be subject to suspension
or revocation in accordance with procedures provided under the act
of October 5, 1978 (P. L. 1109, No. 261), known as the Osteopathic
Medical Practice Act, the [904] act of December 20, 1985 (P. L. 457, No. 112), known as the
Medical Practice Act of 1985, or their successor acts. Any
physician who performs or induces an abortion without first
obtaining the certification required by subsection (a)(4) or with
knowledge or reason to know that the informed consent of the woman
has not been obtained shall for the first offense be guilty of a
summary offense and for each subsequent offense be guilty of a
misdemeanor of the third degree. No physician shall be guilty of
violating this section for failure to furnish the information
required by subsection (a) if he or she can demonstrate, by a
preponderance of the evidence, that he or she reasonably believed
that furnishing the information would have resulted in a severely
adverse effect on the physical or mental health of the patient.

															"(d) Limitation on civil liability--Any physician who complies
with the provisions of this section may not be held civilly liable
to his patient for failure to obtain informed consent to the
abortion within the meaning of that term as defined by the act of
October 15, 1975 (P. L. 390, No. 111), known as the Health Care
Services Malpractice Act."

															"§ 3206. Parental consent.

															"(a) General rule.--Except in the case of a medical emergency or
except as provided in this section, if a pregnant woman is less
than 18 years of age and not emancipated, or if she has been
adjudged an incompetent under 20 Pa. C. S. § 5511 (relating to
petition and hearing; examination by court-appointed physician), a
physician shall not perform an abortion upon her unless, in the
case of a woman who is less than 18 years of age, he first obtains
the informed consent both of the pregnant woman and of one of her
parents; or, in the case of a woman who is incompetent, he first
obtains the informed consent of her guardian. In deciding whether
to grant such consent, a pregnant woman's parent or guardian shall
consider only their child's or ward's best interests. In the case
of a pregnancy that is the result of incest, where [905] the father is a party to the incestuous act, the pregnant woman
need only obtain the consent of her mother.

															"(b) Unavailability of parent or guardian.--If both parents have
died or are otherwise unavailable to the physician within a
reasonable time and in a reasonable manner, consent of the pregnant
woman's guardian or guardians shall be sufficient. If the pregnant
woman's parents are divorced, consent of the parent having custody
shall be sufficient. If neither any parent nor a legal guardian is
available to the physician within a reasonable time and in a
reasonable manner, consent of any adult person standing in loco
parentis shall be sufficient.

															"(c) Petition to the court for consent.--If both of the parents
or guardians of the pregnant woman refuse to consent to the
performance of an abortion or if she elects not to seek the consent
of either of her parents or of her guardian, the court of common
pleas of the judicial district in which the applicant resides or in
which the abortion is sought shall, upon petition or motion, after
an appropriate hearing, authorize a physician to perform the
abortion if the court determines that the pregnant woman is mature
and capable of giving informed consent to the proposed abortion,
and has, in fact, given such consent.

															"(d) Court order.--If the court determines that the pregnant
woman is not mature and capable of giving informed consent or if
the pregnant woman does not claim to be mature and capable of
giving informed consent, the court shall determine whether the
performance of an abortion upon her would be in her best interests.
If the court determines that the performance of an abortion would
be in the best interests of the woman, it shall authorize a
physician to perform the abortion.

															"(e) Representation in proceedings.--The pregnant woman may
participate in proceedings in the court on her own behalf and the
court may appoint a guardian ad litem to assist her. The court
shall, however, advise her that she has [906] a right to court appointed counsel, and shall provide her with
such counsel unless she wishes to appear with private counsel or
has knowingly and intelligently waived representation by
counsel."

															"§ 3207. Abortion facilities.

															"(b) Reports.--Within 30 days after the effective date of this
chapter, every facility at which abortions are performed shall
file, and update immediately upon any change, a report with the
department, containing the following information: "(1) Name and address of the facility.

															"(2) Name and address of any parent, subsidiary or affiliated
organizations, corporations or associations.

															"(3) Name and address of any parent, subsidiary or affiliated
organizations, corporations or associations having contemporaneous
commonality of ownership, beneficial interest, directorship or
officership with any other facility. The information contained in those reports which are filed
pursuant to this subsection by facilities which receive
State-appropriated funds during the 12-calendar-month period
immediately preceding a request to inspect or copy such reports
shall be deemed public information. Reports filed by facilities
which do not receive State-appropriated funds shall only be
available to law enforcement officials, the State Board of Medicine
and the State Board of Osteopathic Medicine for use in the
performance of their official duties. Any facility failing to
comply with the provisions of this subsection shall be assessed by
the department a fine of $500 for each day it is in violation
hereof."

															"§ 3208. Printed information.

															"(a) General rule.- The department shall cause to be published
in English, Spanish and Vietnamese, within 60 days after this
chapter becomes law, and shall update on an annual basis, the
following easily comprehensible printed materials: [907] "(1) Geographically indexed materials designed to inform the
woman of public and private agencies and services available to
assist a woman through pregnancy, upon childbirth and while the
child is dependent, including adoption agencies, which shall
include a comprehensive list of the agencies available, a
description of the services they offer and a description of the
manner, including telephone numbers, in which they might be
contacted, or, at the option of the department, printed materials
including a toll-free 24-hour a day telephone number which may be
called to obtain, orally, such a list and description of agencies
in the locality of the caller and of the services they offer. The
materials shall provide information on the availability of medical
assistance benefits for prenatal care, childbirth and neonatal
care, and state that it is unlawful for any individual to coerce a
woman to undergo abortion, that any physician who performs an
abortion upon a woman without obtaining her informed consent or
without according her a private medical consultation may be liable
to her for damages in a civil action at law, that the father of a
child is liable to assist in the support of that child, even in
instances where the father has offered to pay for an abortion and
that the law permits adoptive parents to pay costs of prenatal
care, childbirth and neonatal care.

															"(2) Materials designed to inform the woman of the probable
anatomical and physiological characteristics of the unborn child at
two-week gestational increments from fertilization to full term,
including pictures representing the development of unborn children
at two-week gestational increments, and any relevant information on
the possibility of the unborn child's survival; provided that any
such pictures or drawings must contain the dimensions of the fetus
and must be realistic and appropriate for the woman's stage of
pregnancy. The materials shall be objective, non-judgmental and
designed [908] to convey only accurate scientific information about the unborn
child at the various gestational ages. The material shall also
contain objective information describing the methods of abortion
procedures commonly employed, the medical risks commonly associated
with each such procedure, the possible detrimental psychological
effects of abortion and the medical risks commonly associated with
each such procedure and the medical risks commonly associated with
carrying a child to term. "(b) Format.--The materials shall be printed in a typeface large
enough to be clearly legible.

															"(c) Free distribution.--The materials required under this
section shall be available at no cost from the department upon
request and in appropriate number to any person, facility or
hospital."

															"§ 3209. Spousal notice.

															"(a) Spousal notice required.--In order to further the
Commonwealth's interest in promoting the integrity of the marital
relationship and to protect a spouse's interests in having children
within marriage and in protecting the prenatal life of that
spouse's child, no physician shall perform an abortion on a married
woman, except as provided in subsections (b) and (c), unless he or
she has received a signed statement, which need not be notarized,
from the woman upon whom the abortion is to be performed, that she
has notified her spouse that she is about to undergo an abortion.
The statement shall bear a notice that any false statement made
therein is punishable by law.

															"(b) Exceptions.--The statement certifying that the notice
required by subsection (a) has been given need not be furnished
where the woman provides the physician a signed statement
certifying at least one of the following: "(1) Her spouse is not the father of the child.

															"(2) Her spouse, after diligent effort, could not be
located. [909] "(3) The pregnancy is a result of spousal sexual assault as
described in section 3128 (relating to spousal sexual assault),
which has been reported to a law enforcement agency having the
requisite jurisdiction. "(4) The woman has reason to believe that the furnishing of
notice to her spouse is likely to result in the infliction of
bodily injury upon her by her spouse or by another individual. Such statement need not be notarized, but shall bear a notice
that any false statements made therein are punishable by law.

															"(c) Medical emergency.--The requirements of subsection (a)
shall not apply in case of a medical emergency.

															"(d) Forms.--The department shall cause to be published, forms
which may be utilized for purposes of providing the signed
statements required by subsections (a) and (b). The department
shall distribute an adequate supply of such forms to all abortion
facilities in this Commonwealth.

															"(e) Penalty; civil action.--Any physician who violates the
provisions of this section is guilty of 'unprofessional conduct,'
and his or her license for the practice of medicine and surgery
shall be subject to suspension or revocation in accordance with
procedures provided under the act of October 5, 1978 (P. L. 1109,
No. 261), known as the Osteopathic Medical Practice Act, the act of
December 20, 1985 (P. L. 457, No. 112), known as the Medical
Practice Act of 1985, or their successor acts. In addition, any
physician who knowingly violates the provisions of this section
shall be civilly liable to the spouse who is the father of the
aborted child for any damages caused thereby and for punitive
damages in the amount of $5,000, and the court shall award a
prevailing plaintiff a reasonable attorney fee as part of
costs."

															"§ 3214. Reporting.

															"(a) General rule.--For the purpose of promotion of maternal
health and life by adding to the sum of medical and [910] public health knowledge through the compilation of relevant
data, and to promote the Commonwealth's interest in protection of
the unborn child, a report of each abortion performed shall be made
to the department on forms prescribed by it. The report forms shall
not identify the individual patient by name and shall include the
following information: "(1) Identification of the physician who performed the abortion,
the concurring physician as required by section 3211(c)(2)
(relating to abortion on unborn child of 24 or more weeks
gestational age), the second physician as required by section
3211(c)(5) and the facility where the abortion was performed and of
the referring physician, agency or service, if any.

															"(2) The county and state in which the woman resides. "(3) The
woman's age.

															"(4) The number of prior pregnancies and prior abortions of the
woman.

															"(5) The gestational age of the unborn child at the time of the
abortion.

															"(6) The type of procedure performed or prescribed and the date
of the abortion.

															"(7) Pre-existing medical conditions of the woman which would
complicate pregnancy, if any, and if known, any medical
complication which resulted from the abortion itself.

															"(8) The basis for the medical judgment of the physician who
performed the abortion that the abortion was necessary to prevent
either the death of the pregnant woman or the substantial and
irreversible impairment of a major bodily function of the woman,
where an abortion has been performed pursuant to section
3211(b)(1).

															"(9) The weight of the aborted child for any abortion performed
pursuant to section 3211(b)(1).

															"(10) Basis for any medical judgment that a medical emergency
existed which excused the physician from compliance with any
provision of this chapter. [911] "(11) The information required to be reported under section
3210(a) (relating to determination of gestational age).

															"(12) Whether the abortion was performed upon a married woman
and, if so, whether notice to her spouse was given. If no notice to
her spouse was given, the report shall also indicate the reason for
failure to provide notice. . . . . .

															"(f) Report by facility.--Every facility in which an abortion is
performed within this Commonwealth during any quarter year shall
file with the department a report showing the total number of
abortions performed within the hospital or other facility during
that quarter year. This report shall also show the total abortions
performed in each trimester of pregnancy. Any report shall be
available for public inspection and copying only if the facility
receives State-appropriated funds within the 12-calendar-month
period immediately preceding the filing of the report. These
reports shall be submitted on a form prescribed by the department
which will enable a facility to indicate whether or not it is
receiving State-appropriated funds. If the facility indicates on
the form that it is not receiving State-appropriated funds, the
department shall regard its report as confidential unless it
receives other evidence which causes it to conclude that the
facility receives State-appropriated funds."

															JUSTICE STEVENS, concurring in part and dissenting in part.

															The portions of the Court's opinion that I have joined are more
important than those with which I disagree. I shall therefore first
comment on significant areas of agreement, and then explain the
limited character of my disagreement. [912] I

															The Court is unquestionably correct in concluding that the
doctrine of stare decisis has controlling significance in
a case of this kind, notwithstanding an individual Justice's
concerns about the merits.[ Footnote 1 ] The
central holding of Roe v. Wade, 410 U. S. 113 (1973), has
been a "part of our law" for almost two decades. Planned
Parenthood of Central Mo. v. Danforth , 428 U. S. 52 , 101 (1976)
(STEVENS, J., concurring in part and dissenting in part). It was a
natural sequel to the protection of individual liberty established
in Griswold v. Connecticut , 381 U. S. 479 (1965). See
also Carey v. Population Services International , 431 U. S. 678 , 687, 702
(1977) (WHITE, J., concurring in part and concurring in result).
The societal costs of overruling Roe at this late date
would be enormous. Roe is an integral part of a correct
understanding of both the concept of liberty and the basic equality
of men and women. Stare decisis also provides a sufficient basis for my
agreement with the joint opinion's reaffirmation of Roe 's
postviability analysis. Specifically, I accept the proposition that
"[i]f the State is interested in protecting fetal life after
viability, it may go so far as to proscribe abortion during that
period, except when it is necessary to preserve the life or health
of the mother." 410 U. S., at 163-164; see ante , at
879.

															I also accept what is implicit in the Court's analysis, namely,
a reaffirmation of Roe 's explanation of why the
State's obligation to protect the life or health of the mother [913] must take precedence over any duty to the unborn. The Court in Roe carefully considered, and rejected, the State's
argument "that the fetus is a 'person' within the language and
meaning of the Fourteenth Amendment." 410 U. S., at 156. After
analyzing the usage of "person" in the Constitution, the Court
concluded that that word "has application only postnatally." Id. , at 157. Commenting on the contingent property
interests of the unborn that are generally represented by guardians
ad litem, the Court noted: "Perfection of the interests involved,
again, has generally been contingent upon live birth. In short, the
unborn have never been recognized in the law as persons in the
whole sense." Id. , at 162. Accordingly, an abortion is not
"the termination of life entitled to Fourteenth Amendment
protection." Id. , at 159. From this holding, there was no
dissent, see id. , at 173; indeed, no Member of the Court
has ever questioned this fundamental proposition. Thus, as a matter
of federal constitutional law, a developing organism that is not
yet a "person" does not have what is sometimes described as a
"right to life."[ Footnote 2 ] This has been and,
by the Court's holding today, [914] remains a fundamental premise of our constitutional law
governing reproductive autonomy.

															II

															My disagreement with the joint opinion begins with its
understanding of the trimester framework established in Roe. Contrary to the suggestion of the joint opinion, ante , at 876, it is not a "contradiction" to recognize
that the State may have a legitimate interest in potential human
life and, at the same time, to conclude that that interest does not
justify the regulation of abortion before viability (although other
interests, such as maternal health, may). The fact that the State's
interest is legitimate does not tell us when, if ever, that
interest outweighs the pregnant woman's interest in personal
liberty. It is appropriate, therefore, to consider more carefully
the nature of the interests at stake.

															First, it is clear that, in order to be legitimate, the State's
interest must be secular; consistent with the First Amendment the
State may not promote a theological or sectarian interest. See Thornburgh v. American College of Obstetricians and
Gynecologists , 476 U. S. 747 , 778 (1986)
(STEVENS, J., concurring); see generally Webster v.
Reproductive Health Services , 492 U. S. 490 , 563-572
(1989) (STEVENS, J., concurring in part and dissenting in part).
Moreover, as discussed above, the state interest in potential human
life is not an interest in loco parentis , for the fetus is
not a person.

															Identifying the State's interests-which the States rarely
articulate with any precision-makes clear that the interest in
protecting potential life is not grounded in the Constitution. It
is, instead, an indirect interest supported by both humanitarian
and pragmatic concerns. Many of our citizens believe that any
abortion reflects an unacceptable disrespect for potential human
life and that the performance of more [915] than a million abortions each year is intolerable; many find
third-trimester abortions performed when the fetus is approaching
personhood particularly offensive. The State has a legitimate
interest in minimizing such offense. The State may also have a
broader interest in expanding the population,[ Footnote 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. These are
the kinds of concerns that comprise the State's interest in
potential human life.

															In counterpoise is the woman's constitutional interest in
liberty. One aspect of this liberty is a right to bodily integrity,
a right to control one's person. See, e. g., Rochin v.
California , 342
U. S. 165 (1952); Skinner v. Oklahoma ex rel.
Williamson , 316
U. S. 535 (1942). This right is neutral on the question of
abortion: The Constitution would be equally offended by an absolute
requirement that all women undergo abortions as by an absolute
prohibition on abortions. "Our whole constitutional heritage rebels
at the thought of giving government the power to control men's
minds." Stanley v. Georgia , 394 U. S. 557 , 565
(1969). The same holds true for the power to control women's
bodies.

															The woman's constitutional liberty interest also involves her
freedom to decide matters of the highest privacy and the most
personal nature. Cf. Whalen v. Roe , 429 U. S. 589 , [916] 598-600 (1977). A woman considering abortion faces "a difficult
choice having serious and personal consequences of major importance
to her own future-perhaps to the salvation of her own immortal
soul." Thornburgh , 476 U. S., at 781. The authority to
make such traumatic and yet empowering decisions is an element of
basic human dignity. As the joint opinion so eloquently
demonstrates, a woman's decision to terminate her pregnancy is
nothing less than a matter of conscience.

															Weighing the State's interest in potential life and the woman's
liberty interest, I agree with the joint opinion that the State may
'" "expres[s] a preference for normal childbirth,"'" that the State
may take steps to ensure that a woman's choice "is thoughtful and
informed," and that "States are free to enact laws to provide a
reasonable framework for a woman to make a decision that has such
profound and lasting meaning." Ante , at 872-873. Serious
questions arise, however, when a State attempts to "persuade the
woman to choose childbirth over abortion." Ante , at 878.
Decisional autonomy must limit the State's power to inject into a
woman's most personal deliberations its own views of what is best.
The State may promote its preferences by funding childbirth, by
creating and maintaining alternatives to abortion, and by espousing
the virtues of family; but it must respect the individual's freedom
to make such judgments.

															This theme runs throughout our decisions concerning reproductive
freedom. In general, Roe 's requirement that restrictions
on abortions before viability be justified by the State's interest
in maternal health has prevented States from interjecting
regulations designed to influence a woman's decision. Thus, we have
upheld regulations of abortion that are not efforts to sway or
direct a woman's choice, but rather are efforts to enhance the
deliberative quality of that decision or are neutral regulations on
the health aspects of her decision. We have, for example, upheld
regulations re- [917] quiring written informed consent, see Planned Parenthood of
Central Mo. v. Danforth , 428 U. S. 52 (1976);
limited recordkeeping and reporting, see ibid.; and
pathology reports, see Planned Parenthood Assn. of Kansas City,
Mo., Inc. v. Ashcroft , 462 U. S. 476 (1983); as
well as various licensing and qualification provisions, see, e.
g., Roe , 410 U. S., at 150; Simopoulos v. Virginia , 462 U. S. 506 (1983). Conversely, we have consistently rejected state efforts to
prejudice a woman's choice, either by limiting the information
available to her, see Bigelow v. Virginia , 421 U. S. 809 (1975), or
by "requir[ing] the delivery of information designed 'to influence
the woman's informed choice between abortion or childbirth.'" Thornburgh , 476 U. S., at 760; see also Akron v. Akron
Center for Reproductive Health, Inc. , 462 U. S. 416 , 442-449
(1983).

															In my opinion, the principles established in this long line of
cases and the wisdom reflected in Justice Powell's opinion for the
Court in Akron (and followed by the Court just six years
ago in Thornburgh) should govern our decision today. Under
these principles, Pa. Cons. Stat. §§ 3205(a)(2)(i)-(iii) (1990) of
the Pennsylvania statute are unconstitutional. Those sections
require a physician or counselor to provide the woman with a range
of materials clearly designed to persuade her to choose not to
undergo the abortion. While the Commonwealth is free, pursuant to §
3208 of the Pennsylvania law, to produce and disseminate such
material, the Commonwealth may not inject such information into the
woman's deliberations just as she is weighing such an important
choice.

															Under this same analysis, §§ 3205(a)(1)(i) and (iii) of the
Pennsylvania statute are constitutional. Those sections, which
require the physician to inform a woman of the nature and risks of
the abortion procedure and the medical risks of carrying to term,
are neutral requirements comparable to those imposed in other
medical procedures. Those sections indicate no effort by the
Commonwealth to influence the [918] woman's choice in any way. If anything, such requirements enhance , rather than skew, the woman's decisionmaking.

															III

															The 24-hour waiting period required by §§ 3205(a)(1)-(2) of the
Pennsylvania statute raises even more serious concerns. Such a
requirement arguably furthers the Commonwealth's interests in two
ways, neither of which is constitutionally permissible.

															First, it may be argued that the 24-hour delay is justified by
the mere fact that it is likely to reduce the number of abortions,
thus furthering the Commonwealth's interest in potential life. But
such an argument would justify any form of coercion that placed an
obstacle in the woman's path. The Commonwealth cannot further its
interests by simply wearing down the ability of the pregnant woman
to exercise her constitutional right.

															Second, it can more reasonably be argued that the 24-hour delay
furthers the Commonwealth's interest in ensuring that the woman's
decision is informed and thoughtful. But there is no evidence that
the mandated delay benefits women or that it is necessary to enable
the physician to convey any relevant information to the patient.
The mandatory delay thus appears to rest on outmoded and
unacceptable assumptions about the decisionmaking capacity of
women. While there are well-established and consistently maintained
reasons for the Commonwealth to view with skepticism the ability of
minors to make decisions, see Hodgson v. Minnesota , 497 U. S. 417 ,
449 (1990),[ Footnote 4 ] none of those reasons
applies to an [919] adult woman's decisionmaking ability. Just as we have left
behind the belief that a woman must consult her husband before
undertaking serious matters, see ante , at 895-898, so we
must reject the notion that a woman is less capable of deciding
matters of gravity. Cf. Reed v. Reed , 404 U. S. 71 (1971).

															In the alternative, the delay requirement may be premised on the
belief that the decision to terminate a pregnancy is presumptively
wrong. This premise is illegitimate. Those who disagree vehemently
about the legality and morality of abortion agree about one thing:
The decision to terminate a pregnancy is profound and difficult. No
person undertakes such a decision lightly-and States may not
presume that a woman has failed to reflect adequately merely
because her conclusion differs from the State's preference. A woman
who has, in the privacy of her thoughts and conscience, weighed the
options and made her decision cannot be forced to reconsider all,
simply because the State believes she has come to the wrong
conclusion.[ Footnote 5 ] [920] Part of the constitutional liberty to choose is the equal
dignity to which each of us is entitled. A woman who decides to
terminate her pregnancy is entitled to the same respect as a woman
who decides to carry the fetus to term. The mandatory waiting
period denies women that equal respect.

															IV

															In my opinion, a correct application of the "undue burden"
standard leads to the same conclusion concerning the
constitutionality of these requirements. A state-imposed burden on
the exercise of a constitutional right is measured both by its
effects and by its character: A burden may be "undue" either
because the burden is too severe or because it lacks a legitimate,
rational justification.[ Footnote 6 ]

															The 24-hour delay requirement fails both parts of this test.

															The findings of the District Court establish the severity of [921] the burden that the 24-hour delay imposes on many pregnant
women. Yet even in those cases in which the delay is not especially
onerous, it is, in my opinion, "undue" because there is no evidence
that such a delay serves a useful and legitimate purpose. As
indicated above, there is no legitimate reason to require a woman
who has agonized over her decision to leave the clinic or hospital
and return again another day. While a general requirement that a
physician notify her patients about the risks of a proposed medical
procedure is appropriate, a rigid requirement that all patients
wait 24 hours or (what is true in practice) much longer to evaluate
the significance of information that is either common knowledge or
irrelevant is an irrational and, therefore, "undue" burden.

															The counseling provisions are similarly infirm. Whenever
government commands private citizens to speak or to listen, careful
review of the justification for that command is particularly
appropriate. In these cases, 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.
§§ 3205(a)(2)(i)-(iii). 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. 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).
This information is of little decisional value in most cases,
because 90% of all abortions are performed during the first
trimester[ Footnote 7 ] when fetal age has less
relevance than when the fetus nears viability. Nor can the
informa- [922] tion required by the statute be justified as relevant to any
"philosophic" or "social" argument, ante , at 872, either
favoring or disfavoring the abortion decision in a particular case.
In light of all of these facts, I conclude that the information
requirements in § 3205(a)(1)(ii) and §§ 3205(a)(2)(i)-(iii) do not
serve a useful purpose and thus constitute an unnecessary--and
therefore undue--burden on the woman's constitutional liberty to
decide to terminate her pregnancy.

															Accordingly, while I disagree with Parts IV; V-B, and V-D of the
joint opinion,[ Footnote 8 ] I join the remainder
of the Court's opinion.

															JUSTICE BLACKMUN, concurring in part, concurring in the judgment
in part, and dissenting in part.

															I join Parts I, II, III, V-A, V -C, and VI of the joint opinion
of JUSTICES O'CONNOR, KENNEDY, and SOUTER, ante. Three years ago, in Webster v. Reproductive Health
Services , 492 U.
S. 490 (1989), four Members of this Court appeared poised to
"cas[t] into darkness the hopes and visions of every woman in this
country" who had come to believe that the Constitution guaranteed
her the right to reproductive choice. Id. , at 557
(BLACKMUN, J., dissenting). See id. , at 499 (plurality
opinion of REHNQUIST, C. J., joined by WHITE and KENNEDY, JJ.); id. , at 532 (SCALIA, J., concurring in part and concurring
in judgment). All that remained between the promise of Roe and the darkness of the plurality was a single, flickering flame.
Decisions since Webster gave little reason to hope that
this flame would cast much light. See, e. g., Ohio v. Akron
Center for Reproductive Health , 497 U. S. 502 , 524 (1990)
(BLACKMUN, J., dissenting). But now, just when so many expected the
darkness to fall, the flame has grown bright. [923] I do not underestimate the significance of today's joint
opinion. Yet I remain steadfast in my belief that the right to
reproductive choice is entitled to the full protection afforded by
this Court before Webster. And I fear for the darkness as
four Justices anxiously await the single vote necessary to
extinguish the light.

															I

															Make no mistake, the joint opinion of JUSTICES O'CONNOR,
KENNEDY, and SOUTER is an act of personal courage and
constitutional principle. In contrast to previous decisions in
which JUSTICES O'CONNOR and KENNEDY postponed reconsideration of Roe v. Wade , 410 U. S. 113 (1973), the
authors of the joint opinion today join JUSTICE STEVENS and me in
concluding that "the essential holding of Roe v. Wade should be retained and once again reaffirmed." Ante , at
846. In brief, five Members of this Court today recognize that "the
Constitution protects a woman's right to terminate her pregnancy in
its early stages." Ante , at 844.

															A fervent view of individual liberty and the force of stare
decisis have led the Court to this conclusion. Ante ,
at 853. Today a majority reaffirms that the Due Process Clause of
the Fourteenth Amendment establishes "a realm of personal liberty
which the government may not enter," ante , at 847--a realm
whose outer limits cannot be determined by interpretations of the
Constitution that focus only on the specific practices of States at
the time the Fourteenth Amendment was adopted. See ante ,
at 848-849. Included within this realm of liberty is "'the right of
the individual , married or single, to be free from
unwarranted governmental intrusion into matters so fundamentally
affecting a person as the decision whether to bear or beget a
child.'" Ante , at 851, quoting Eisenstadt v.
Baird , 405 U. S.
438 , 453 (1972) (emphasis in original). "These matters,
involving the most intimate and personal choices a person may make
in a lifetime, choices central to personal dignity and autonomy,
are central to the [924] Opinion of BLACKMUN, J.

															liberty protected by the Fourteenth Amendment." Ante ,
at 851 (emphasis added). Finally, the Court today recognizes that
in the case of abortion, "the liberty of the woman is at stake in a
sense unique to the human condition and so unique to the law. The
mother who carries a child to full term is subject to anxieties, to
physical constraints, to pain that only she must bear." Ante , at 852.

															The Court's reaffirmation of Roe 's central holding is
also based on the force of stare decisis. "[N]o erosion of
principle going to liberty or personal autonomy has left Roe 's central holding a doctrinal remnant; Roe portends no developments at odds with other precedent for the
analysis of personal liberty; and no changes of fact have rendered
viability more or less appropriate as the point at which the
balance of interests tips." Ante , at 860-861. Indeed, the
Court acknowledges that Roe 's limitation on state power
could not be removed "without serious inequity to those who have
relied upon it or significant damage to the stability of the
society governed by it." Ante , at 855. In the 19 years
since Roe was decided, that case has shaped more than
reproductive planning-"[a]n entire generation has come of age free
to assume Roe 's concept of liberty in defining the
capacity of women to act in society, and to make reproductive
decisions." Ante , at 860. The Court understands that,
having "call[ed] the contending sides . . . to end their
national division by accepting a common mandate rooted in the
Constitution," ante , at 867, a decision to overrule Roe "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." Ante , at 865. What
has happened today should serve as a model for future Justices and
a warning to all who have tried to turn this Court into yet another
political branch.

															In striking down the Pennsylvania statute's spousal notification
requirement, the Court has established a framework [925] for evaluating abortion regulations that responds to the social
context of women facing issues of reproductive choice.[ Footnote 1 ] In determining the burden imposed by the
challenged regulation, the Court inquires whether the regulation's "purpose or effect is to place a substantial obstacle in
the path of a woman seeking an abortion before the fetus attains
viability." Ante , at 878 (emphasis added). The Court
reaffirms:

															"The proper focus of constitutional inquiry is the group for
whom the law is a restriction, not the group for whom the law is
irrelevant." Ante , at 894. Looking at this group, the
Court inquires, based on expert testimony, empirical studies, and
common sense, whether "in a large fraction of the cases in which
[the restriction] is relevant, it will operate as a substantial
obstacle to a woman's choice to undergo an abortion." Ante , at 895. "A statute with this purpose is invalid
because the means chosen by the State to further the interest in
potential life must be calculated to inform the woman's free
choice, not hinder it." Ante , at 877. And in applying its
test, the Court remains sensitive to the unique role of women in
the decisionmaking process. Whatever may have been the practice
when the Fourteenth Amendment was adopted, the Court observes,
"[w]omen do not lose their constitutionally protected liberty when
they marry. The Constitution protects all individuals, male or
female, married or unmarried, from the abuse of governmental power,
even where that power is employed for the supposed benefit of a
member of the individual's family." Ante , at 898.[ Footnote 2 ] [926] Lastly, while I believe that the joint opinion errs in failing
to invalidate the other regulations, I am pleased that the joint
opinion has not ruled out the possibility that these regulations
may be shown to impose an unconstitutional burden. The joint
opinion makes clear that its specific holdings are based on the
insufficiency of the record before it. See, e. g. , ante , at 885-886. I am confident that in the future
evidence will be produced to show that "in a large fraction of the
cases in which [these regulations are] relevant, [they] will
operate as a substantial obstacle to a woman's choice to undergo an
abortion." Ante , at 895.

															II

															Today, no less than yesterday, the Constitution and decisions of
this Court require that a State's abortion restrictions be
subjected to the strictest judicial scrutiny. Our precedents and
the joint opinion's principles require us to subject all non-de-minimis abortion regulations to strict scrutiny.
Under this standard, the Pennsylvania statute's provisions
requiring content-based counseling, a 24-hour delay, informed
parental consent, and reporting of abortion-related information
must be invalidated.

															A

															The Court today reaffirms the long recognized rights of privacy
and bodily integrity. As early as 1891, the Court held, "[n]o right
is held more sacred, or is more carefully guarded by the common
law, than the right of every individual to the possession and
control of his own person, free from all restraint or interference
of others . . . . " Union Pacific R. Co. v.
Botsford , 141 U.
S. 250 , 251 (1891). Throughout this century, this Court also
has held that the fundamental right of privacy protects citizens
against governmental in- [927] trusion in such intimate family matters as procreation,
childrearing, marriage, and contraceptive choice. See ante , at 847-849. These cases embody the principle that
personal decisions that profoundly affect bodily integrity,
identity, and destiny should be largely beyond the reach of
government. Eisenstadt , 405 U. S., at 453. In Roe v.
Wade , this Court correctly applied these principles to a
woman's right to choose abortion.

															State restrictions on abortion violate a woman's right of
privacy in two ways. First, compelled continuation of a pregnancy
infringes upon a woman's right to bodily integrity by imposing
substantial physical intrusions and significant risks of physical
harm. During pregnancy, women experience dramatic physical changes
and a wide range of health consequences. Labor and delivery pose
additional health risks and physical demands. In short, restrictive
abortion laws force women to endure physical invasions far more
substantial than those this Court has held to violate the
constitutional principle of bodily integrity in other contexts.
See, e. g. , Winston v. Lee , 470 U. S. 753 (1985)
(invalidating surgical removal of bullet from murder suspect); Rochin v. California , 342 U. S. 165 (1952)
(invalidating stomach pumping).[ Footnote 3 ]

															Further, when the State restricts a woman's right to terminate
her pregnancy, it deprives a woman of the right to make her own
decision about reproduction and family planning-critical life
choices that this Court long has deemed central to the right to
privacy. The decision to terminate or continue a pregnancy has no
less an impact on a woman's life than decisions about contraception
or marriage. 410 U. S., [928] at 153. Because motherhood has a dramatic impact on a woman's
educational prospects, employment opportunities, and
self-determination, restrictive abortion laws deprive her of basic
control over her life. For these reasons, "the decision whether or
not to beget or bear a child" lies at "the very heart of this
cluster of constitutionally protected choices." Carey v.
Population Services International , 431 U. S. 678 , 685
(1977).

															A State's restrictions on a woman's right to terminate her
pregnancy also implicate constitutional guarantees of gender
equality. State restrictions on abortion compel women to continue
pregnancies they otherwise might terminate. By restricting the
right to terminate pregnancies, the State conscripts women's bodies
into its service, forcing women to continue their pregnancies,
suffer the pains of childbirth, and in most instances, provide
years of maternal care. The State does not compensate women for
their services; instead, it assumes that they owe this duty as a
matter of course. This assumption-that women can simply be forced
to accept the "natural" status and incidents of motherhood-appears
to rest upon a conception of women's role that has triggered the
protection of the Equal Protection Clause. See, e. g. , Mississippi Univ. for Women v. Hogan , 458 U. S. 718 , 724-726
(1982); Craig v. Boren , 429 U. S. 190 , 198-199
(1976).[ Footnote 4 ] The joint opinion recognizes
that these assumptions about women's place in society "are no
longer consistent with our [929] understanding of the family, the individual, or the
Constitution." Ante , at 897.

															B

															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. Griswold v. Connecticut , 381 U. S. 479 , 485
(1965). We have applied this principle specifically in the context
of abortion regulations. Roe v. Wade , 410 U. S., at
155.[ Footnote 5 ] Roe implemented these principles through a framework
that was designed "to ensure that the woman's right to choose not
become so subordinate to the State's interest in promoting fetal
life that her choice exists in theory but not in fact," ante , at 872. 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. S., at 162. With respect to the State's
interest in the health of the mother, "the 'compelling' point
. . . is at approximately the end of the first
trimester," because it is at that point that the mortality rate in
abortion approaches that in childbirth. Id. , at 163. With
respect to the State's interest in potential life, "the
'compelling' point is at viability," because it is at that point
that the [930] fetus "presumably has the capability of meaningful life outside
the mother's womb." Ibid. 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." Akron v. Akron Center for Reproductive Health,
Inc. , 462 U. S.
416 , 434 (1983).

															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. Strict scrutiny of state limitations on
reproductive choice still offers the most secure protection of the
woman's right to make her own reproductive decisions, free from
state coercion. No majority of this Court has ever agreed upon an
alternative approach. The factual premises of the trimester
framework have not been undermined, see Webster , 492 U.
S., at 553 (BLACKMUN, J., dissenting), and the Roe framework is far more administrable, and far less manipulable, than
the "undue burden" standard adopted by the joint opinion.

															Nonetheless, three criticisms of the trimester framework
continue to be uttered. First, the trimester framework is attacked
because its key elements do not appear in the text of the
Constitution. 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. [T]he 'critical elements' of
countless constitutional doctrines nowhere appear in the
Constitution's text . . . . The Constitution makes
no mention, for example, of the First Amendment's 'actual malice'
standard for proving certain libels, see New York Times Co. v.
Sullivan , 376 U.
S. 254 (1964) . . . . 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. The
reason is simple. Like the Roe framework, these [931] tests or standards are not, and do not purport to be, rights
protected by the Constitution. Rather, they are judge-made methods
for evaluating and measuring the strength and scope of
constitutional rights or for balancing the constitutional rights of
individuals against the competing interests of government." Id. , at 548. The second criticism is that the framework more closely
resembles a regulatory code than a body of constitutional doctrine.
Again, my answer remains the same as in Webster : "[I]f this were a true and genuine concern, we would have to
abandon vast areas of our constitutional jurisprudence
. . . . 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? Compare Zorach v. Clauson , 343 U. S. 306 (1952),
with Illinois ex rel. McCollum v. Board of Education of School
Dist. No. 71, Champaign County , 333 U. S. 203 (1948)
. . . . Similarly, in a Sixth Amendment case, the
Court held that although an overnight ban on attorney-client
communication violated the constitutionally guaranteed right to
counsel, Geders v. United States , 425 U. S. 80 (1976), that
right was not violated when a trial judge separated a defendant
from his lawyer during a 15-minute recess after the defendant's
direct testimony. Perry v. Leeke , 488 U. S. 272 (1989).

															"That numerous constitutional doctrines result in narrow
differentiations between similar circumstances does [932] Opinion of BLACKMUN, J. not mean that this Court has abandoned adjudication in favor of
regulation." Id. , at 549-550. The final, and more genuine, criticism of the trimester
framework is that it fails to find the State's interest in
potential human life compelling throughout pregnancy. No Member of
this Court-nor for that matter, the Solicitor General, see Tr. of
Oral Arg. 42-has ever questioned our holding in Roe that
an abortion is not "the termination of life entitled to Fourteenth
Amendment protection." 410 U. S., at 159. Accordingly, a State's
interest in protecting fetal life is not grounded in the
Constitution. Nor, consistent with our Establishment Clause, can it
be a theological or sectarian interest. See Thornburgh v.
American College of Obstetricians and Gynecologists , 476 U. S. 747 , 778 (1986)
(STEVENS, J., concurring). It is, instead, a legitimate interest
grounded in humanitarian or pragmatic concerns. See ante ,
at 914-915 (STEVENS, J., concurring in part and dissenting in
part).

															But while a 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," ante , at 846,
legitimate interests are not enough. To overcome the burden of
strict scrutiny, the interests must be compelling. The question
then is how best to accommodate the State's interest in potential
human life with the constitutional liberties of pregnant women.
Again, I stand by the views I expressed in Webster : "I remain convinced, as six other Members of this Court 16 years
ago were convinced, that the Roe framework, and the
viability standard in particular, fairly, sensibly, and effectively
functions to safeguard the constitutional liberties of pregnant
women while recognizing and accommodating the State's interest in
potential human life. The viability line reflects the biological
facts and truths of fetal development; it marks that threshold
moment prior to which a fetus cannot survive separate from the [933] woman and cannot reasonably and objectively be regarded as a
subject of rights or interests distinct from, or paramount to,
those of the pregnant woman. At the same time, the viability
standard takes account of the undeniable fact that as the fetus
evolves into its postnatal form, and as it loses its dependence on
the uterine environment, the State's interest in the fetus'
potential human life, and in fostering a regard for human life in
general, becomes compelling. As a practical matter, because
viability follows 'quickening'--the point at which a woman feels
movement in her womb-and because viability occurs no earlier than
23 weeks gestational age, it establishes an easily applicable
standard for regulating abortion while providing a pregnant woman
ample time to exercise her fundamental right with her responsible
physician to terminate her pregnancy." 492 U. S., at
553-554.[ Footnote 6 ] Roe 's trimester framework does not ignore the State's
interest in prenatal life. Like JUSTICE STEVENS, ante , at
916, I agree that the State may take steps to ensure that a woman's
choice "is thoughtful and informed," ante , at 872, and
that "States are free to enact laws to provide a reasonable
framework for a woman to make a decision that has such profound and
lasting meaning." Ante , at 873. But "[s]erious questions arise . . . when a State attempts
to persuade the woman to choose childbirth over abortion. Ante , at 878. Decisional autonomy must limit the State's
power to inject into a woman's most personal deliberations its own
views of what is best. The State may promote its preferences by
funding childbirth, by creating and maintaining alternatives to
abortion, and by espousing the virtues of family; but it must
respect [934] the individual's freedom to make such judgments." Ante ,
at 916 (STEVENS, J., concurring in part and dissenting in part)
(internal quotation marks omitted). As the joint opinion recognizes, "the means chosen by the State
to further the interest in potential life must be calculated to
inform the woman's free choice, not hinder it." Ante , at
877.

															In sum, Roe 's requirement of strict scrutiny as
implemented through a trimester framework should not be disturbed.
No other approach has gained a majority, and no other is more
protective of the woman's fundamental right. Lastly, no other
approach properly accommodates the woman's constitutional right
with the State's legitimate interests.

															C

															Application of the strict scrutiny standard results in the
invalidation of all the challenged provisions. Indeed, as this
Court has invalidated virtually identical provisions in prior
cases, stare decisis requires that we again strike them
down.

															This Court has upheld informed- and written-consent requirements
only where the State has demonstrated that they genuinely further
important health-related state concerns. See Planned Parenthood
of Central Mo. v. Danforth, 428 U. S. 52, 65-67 (1976). A
State may not, under the guise of securing informed consent,
"require the delivery of information 'designed to influence the
woman's informed choice between abortion or childbirth.'" Thornburgh , 476 U. S., at 760, quoting Akron , 462
U. S., at 443-444. Rigid requirements that a specific body of
information be imparted to a woman in all cases, regardless of the
needs of the patient, improperly intrude upon the discretion of the
pregnant woman's physician and thereby impose an "'undesired and
uncomfortable straitjacket.'" Thornburgh , 476 U. S., at
762, quoting Danforth , 428 U. S., at 67, n. 8.

															Measured against these principles, some aspects of the
Pennsylvania informed-consent scheme are unconstitutional. [935] While it is unobjectionable for the Commonwealth to require that
the patient be informed of the nature of the procedure, the health
risks of the abortion and of childbirth, and the probable
gestational age of the unborn child, compare Pa. Cons. Stat. §§
3205(a)(i)-(iii) (1990) with Akron , 462 U. S., at 446, n.
37, I remain unconvinced that there is a vital state need for
insisting that the information be provided by a physician rather
than a counselor. Id. , at 448. The District Court found
that the physician-only requirement necessarily would increase
costs to the plaintiff clinics, costs that undoubtedly would be
passed on to patients. And because trained women counselors are
often more understanding than physicians, and generally have more
time to spend with patients, see App. 366-387, the physician-only
disclosure requirement is not narrowly tailored to serve the
Commonwealth's interest in protecting maternal health.

															Sections 3205(a)(2)(i)-(iii) of the Act further requires that
the physician or a qualified nonphysician inform the woman that
printed materials are available from the Commonwealth that describe
the fetus and provide information about medical assistance for
childbirth, information about child support from the father, and a
list of agencies offering adoption and other services as
alternatives to abortion. Thornburgh invalidated biased
patient-counseling requirements virtually identical to the one at
issue here. What we said of those requirements fully applies in
these cases: "[T]he listing of agencies in the printed Pennsylvania form
presents serious problems; it contains names of agencies that well
may be out of step with the needs of the particular woman and thus
places the physician in an awkward position and infringes upon his
or her professional responsibilities. Forcing the physician or
counselor to present the materials and the list to the woman makes
him or her in effect an agent of the State in treating the woman
and places his or her imprimatur upon both the materials and the
list. All this is, or [936] comes close to being, state medicine imposed upon the woman, not
the professional medical guidance she seeks, and it officially
structures-as it obviously was intended to do-the dialogue between
the woman and her physician.

															"The requirements . . . that the woman be advised that
medical assistance benefits may be available, and that the father
is responsible for financial assistance in the support of the child
similarly are poorly disguised elements of discouragement for the
abortion decision. Much of this . . . , for many
patients, would be irrelevant and inappropriate. For a patient with
a life-threatening pregnancy, the 'information' in its very
rendition may be cruel as well as destructive of the
physician-patient relationship. As any experienced social worker or
other counselor knows, theoretical financial responsibility often
does not equate with fulfillment . . . . Under the
guise of informed consent, the Act requires the dissemination of
information that is not relevant to such consent, and, thus, it
advances no legitimate state interest." 476 U. S., at 762-763
(citation omitted). "This type of compelled information is the antithesis of
informed consent," id. , at 764, and goes far beyond merely
describing the general subject matter relevant to the woman's
decision. "That the Commonwealth does not, and surely would not,
compel similar disclosure of every possible peril of necessary
surgery or of simple vaccination, reveals the anti-abortion
character of the statute and its real purpose." Ibid. [ Footnote 7 ] [937] The 24-hour waiting period following the provision of the
foregoing information is also clearly unconstitutional. The
District Court found that the mandatory 24-hour delay could lead to
delays in excess of 24 hours, thus increasing health risks, and
that it would require two visits to the abortion provider, thereby
increasing travel time, exposure to further harassment, and
financial cost. Finally, the District Court found that the
requirement would pose especially significant burdens on women
living in rural areas and those women that have difficulty
explaining their whereabouts. 744 F. Supp. 1323, 1378-1379 (ED Pa.
1990). In Akron this Court invalidated a similarly
arbitrary or inflexible waiting period because, as here, it
furthered no legitimate state interest.[ Footnote
8 ]

															As JUSTICE STEVENS insightfully concludes, the mandatory delay
rests either on outmoded or unacceptable assumptions about the
decisionmaking capacity of women or the belief that the decision to
terminate the pregnancy is [938] presumptively wrong. Ante , at 918-919. The requirement
that women consider this obvious and slanted information for an
additional 24 hours contained in these provisions will only
influence the woman's decision in improper ways. The vast majority
of women will know this information-of the few that do not, it is
less likely that their minds will be changed by this information
than it will be either by the realization that the State opposes
their choice or the need once again to endure abuse and harassment
on return to the clinic.[ Footnote 9 ]

															Except in the case of a medical emergency, § 3206 requires a
physician to obtain the informed consent of a parent or guardian
before performing an abortion on an unemancipated minor or an
incompetent woman. Based on evidence in the record, the District
Court concluded that, in order to fulfill the informed-consent
requirement, generally accepted medical principles would require an
in-person visit by the parent to the facility. 744 F. Supp., at
1382. Although the Court "has recognized that the State has
somewhat broader authority to regulate the activities of children
than of adults," the State nevertheless must demonstrate that there
is a "significant state interest in conditioning an
abortion . . . that is not present in the case of an
adult." Danforth, 428 U. S., at 74-75 (emphasis added).
The requirement of an in-person visit would carry with it the risk
of a delay of several days or possibly weeks, even where the parent
is willing to consent. While the State has an interest in
encouraging parental involvement in the minor's abortion decision,
§ 3206 is not narrowly drawn to serve that interest.[ Footnote 10 ] [939] Finally, the Pennsylvania statute requires every facility
performing abortions to report its activities to the Commonwealth.
Pennsylvania contends that this requirement is valid under Danforth , in which this Court held that recordkeeping and
reporting requirements that are reasonably directed to the
preservation of maternal health and that properly respect a
patient's confidentiality are permissible. Id. , at 79-81.
The Commonwealth attempts to justify its required reports on the
ground that the public has a right to know how its tax dollars are
spent. A regulation designed to inform the public about public
expenditures does not further the Commonwealth's interest in
protecting maternal health. Accordingly, such a regulation cannot
justify a legally significant burden on a woman's right to obtain
an abortion.

															The confidential reports concerning the identities and medical
judgment of physicians involved in abortions at first glance may
seem valid, given the Commonwealth's interest in maternal health
and enforcement of the Act. The District Court found, however,
that, notwithstanding the confidentiality protections, many
physicians, particularly those who have previously discontinued
performing abortions because of harassment, would refuse to refer
patients to abortion clinics if their names were to appear on these
reports. 744 F. Supp., at 1392. The Commonwealth has failed to show
that the name of the referring physician either adds to the pool of
scientific knowledge concerning abortion or is reasonably related
to the Commonwealth's interest in maternal health. I therefore
agree with the District Court's conclusion that the confidential
reporting requirements are uncon- [940] stitutional insofar as they require the name of the referring
physician and the basis for his or her medical judgment.

															In sum, I would affirm the judgment in No. 91-902 and reverse
the judgment in No. 91-744 and remand the cases for further
proceedings.

															III

															At long last, THE CHIEF JUSTICE and those who have joined him
admit it. Gone are the contentions that the 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 Roe was wrongly
decided, and that it can and should be overruled consistently with
our traditional approach to stare decisis in
constitutional cases." Post , at 944. If there is much
reason to applaud the advances made by the joint opinion today,
there is far more to fear from THE CHIEF JUSTICE'S opinion.

															THE CHIEF JUSTICE'S criticism of Roe follows from his
stunted conception of individual liberty. While recognizing that
the Due Process Clause protects more than simple physical liberty,
he then goes on to construe this Court's personal liberty cases as
establishing only a laundry list of particular rights, rather than
a principled account of how these particular rights are grounded in
a more general right of privacy. Post , at 951. This
constricted view is reinforced by THE CHIEF JUSTICE'S exclusive
reliance on tradition as a source of fundamental rights. He argues
that the record in favor of a right to abortion is no stronger than
the record in Mi chael H. v. Gerald D. , 491 U. S. 110 (1989),
where the plurality found no fundamental right to visitation
privileges by an adulterous father, or in Bowers v.
Hardwick , 478 U.
S. 186 (1986), where the Court found no fundamental right to
engage in homosexual sodomy, or in a case involving the" 'firing
[of] a gun . . . into another person's body.'" Post , at 951-952. In THE CHIEF JUSTICE'S world, a woman
considering whether to terminate a pregnancy is entitled to no more
protection than adulterers, murderers, and so-called sexual [941] deviates.[ Footnote 11 ] Given THE CHIEF
JUSTICE'S exclusive reliance on tradition, people using
contraceptives seem the next likely candidate for his list of
outcasts.

															Even more shocking than THE CHIEF JUSTICE'S cramped notion of
individual liberty is his complete omission of any discussion of
the effects that compelled childbirth and motherhood have on
women's lives. The only expression of concern with women's health
is purely instrumental-for THE CHIEF JUSTICE, only women's psychological health is a concern, and only to the extent
that he assumes that every woman who decides to have an abortion
does so without serious consideration of the moral implications of
her decision. Post , at 967-968. In short, THE CHIEF
JUSTICE'S view of the State's compelling interest in maternal
health has less to do with health than it does with compelling
women to be maternal.

															Nor does THE CHIEF JUSTICE give any serious consideration to the
doctrine of stare decisis. 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." Post , at 955. 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 . Post , at 956 (internal quotation
marks omitted).

															THE CHIEF JUSTICE'S narrow conception of individual liberty and stare decisis leads him to propose the same standard of
review proposed by the plurality in Webster. "States may
regulate abortion procedures in ways rationally related to a
legitimate state interest. Williamson v. Lee Optical of
Oklahoma, Inc. , 348 U. S. 483 , 491
(1955); cf. Stanley v. Illinois , 405 U. S. 645 , 651-653
(1972)." Post , at 966. THE [942] 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. Akron Center for Reproductive Health , 497 U. S.,
at 514. In short, in his view, petitioners must prove that the
statute cannot constitutionally be applied to anyone. Finally, in applying his standard to the spousal-notification
provision, THE CHIEF JUSTICE contends that the record lacks any
"hard evidence" to support the joint opinion's contention that a
"large fraction" of women who prefer not to notify their husbands
involve situations of battered women and unreported spousal
assault. Post , at 974, n. 2. Yet throughout the
explication of his standard, THE CHIEF JUSTICE never explains what
hard evidence is, how large a fraction is required, or how a
battered woman is supposed to pursue an as-applied challenge.

															Under his standard, States can ban abortion if that ban is
rationally related to a legitimate state interest-a standard which
the United States calls "deferential, but not toothless." Yet when
pressed at oral argument to describe the teeth, the best protection
that the Solicitor General could offer to women was that a
prohibition, enforced by criminal penalties, with no exception
for the life of the mother , "could raise very serious
questions." Tr. of Oral Arg. 48. Perhaps, the Solicitor General
offered, the failure to include an exemption for the life of the
mother would be "arbitrary and capricious." Id. , at 49.
If, as THE CHIEF JUSTICE contends, the undue burden test is made
out of whole cloth, the so-called "arbitrary and capricious" limit
is the Solicitor General's "new clothes."

															Even if it is somehow "irrational" for a State to require a
woman to risk her life for her child, what protection is offered
for women who become pregnant through rape or incest? Is there
anything arbitrary or capricious about a [943] State's prohibiting the sins of the father from being visited
upon his offspring?[ Footnote 12 ]

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

															IV

															In one sense, the Court's approach is worlds apart from that of
THE CHIEF JUSTICE and JUSTICE SCALIA. And yet, in another sense,
the distance between the two approaches is short-the distance is
but a single vote.

															I am 83 years old. I cannot remain on this Court forever, and
when I do step down, the confirmation process for my successor well
may focus on the issue before us today. That, I regret, may be
exactly where the choice between the two worlds will be made. [944] CHIEF JUSTICE REHNQUIST, with whom JUSTICE WHITE, JUSTICE
SCALIA, and JUSTICE THOMAS join, concurring in the judgment in part
and dissenting in part.

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

															I

															In ruling on this 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). Accordingly, the court directed its attention to the
question of the standard of review for abortion regulations. In
attempting to settle on the correct standard, however, the court
confronted the confused state of this Court's abortion
jurisprudence. After considering the several opinions in Webster v. Reproductive Health Services, supra , and Hodgson v. Minnesota , 497 U. S. 417 (1990), the
Court of Appeals concluded that JUSTICE O'CONNOR'S "undue burden"
test was controlling, as that was the narrowest ground on which we
had upheld recent abortion regulations. 947 F. 2d, at 693-697
("When a fragmented court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, the
holding of the Court may be viewed as that position taken by those
Members who concurred in the judgments on the narrowest grounds"
(quoting Marks v. United States , 430 U. S. 188 , 193 (1977)
(internal quotation marks omitted))). Applying this standard, the
Court of Appeals upheld all of the challenged regulations except
the one [945] requiring a woman to notify her spouse of an intended
abortion.

															In arguing that this Court should invalidate each of the
provisions at issue, petitioners insist that we reaffirm our
decision in Roe v. Wade, supra , in which we held
unconstitutional a Texas statute making it a crime to procure an
abortion except to save the life of the mother.[ Footnote 1 ] We agree with the Court of Appeals that our
decision in Roe is not directly implicated by the
Pennsylvania statute, which does not prohibit, but simply
regulates, abortion. But, as the Court of Appeals found, the state
of our post-Roe decisional law dealing with the regulation
of abortion is confusing and uncertain, indicating that a
reexamination of that line of cases is in order. Unfortunately for
those who must apply this Court's decisions, the reexamination
undertaken today leaves the Court no less divided than beforehand.
Although they reject the trimester framework that formed the
underpinning of Roe , JUSTICES O'CONNOR, KENNEDY, and
SOUTER adopt a revised undue burden standard to analyze the
challenged regulations. We conclude, however, that such an outcome
is an unjustified constitutional compromise, one which leaves the
Court in a position to closely scrutinize all types of abortion
regulations despite the fact that it lacks the power to do so under
the Constitution.

															In Roe , the Court opined that the State "does have an
important and legitimate interest in preserving and protecting the
health of the pregnant woman, . . . and that it has still
another important and legitimate interest in protecting [946] the potentiality of human life." 410 U. S., at 162 (emphasis
omitted). In the companion case of Doe v. Bolton , 410 U. S. 179 (1973), the
Court referred to its conclusion in Roe "that a pregnant
woman does not have an absolute constitutional right to an abortion
on her demand." 410 U. S., at 189. But while the language and
holdings of these cases appeared to leave States free to regulate
abortion procedures in a variety of ways, later decisions based on
them have found considerably less latitude for such regulations
than might have been expected.

															For example, after Roe , many States have sought to
protect their young citizens by requiring that a minor seeking an
abortion involve her parents in the decision. Some States have
simply required notification of the parents, while others have
required a minor to obtain the consent of her parents. In a number
of decisions, however, the Court has substantially limited the
States in their ability to impose such requirements. With regard to
parental notice requirements, we initially held that a
State could require a minor to notify her parents before proceeding
with an abortion. H. L. v. Matheson , 450 U. S. 398 , 407-410
(1981). Recently, however, we indicated that a State's ability to
impose a notice requirement actually depends on whether it requires
notice of one or both parents. We concluded that although the
Constitution might allow a State to demand that notice be given to
one parent prior to an abortion, it may not require that similar
notice be given to two parents, unless the State
incorporates a judicial bypass procedure in that two-parent
requirement. Hodgson v. Minnesota, supra. We have treated parental consent provisions even more
harshly. Three years after Roe , we invalidated a Missouri
regulation requiring that an unmarried woman under the age of 18
obtain the consent of one of her parents before proceeding with an
abortion. We held that our abortion jurisprudence prohibited the
State from imposing such a "blanket provision . . .
requiring the consent of a parent." Planned Parenthood [947] of Central Mo. v. Danforth , 428 U. S. 52 , 74 (1976).
In Bellotti v. Baird , 443 U. S. 622 (1979), the
Court struck down a similar Massachusetts parental consent statute.
A majority of the Court indicated, however, that a State could
constitutionally require parental consent, if it alternatively
allowed a pregnant minor to obtain an abortion without parental
consent by showing either that she was mature enough to make her
own decision, or that the abortion would be in her best interests.
See id. , at 643-644 (plurality opinion); id. , at
656-657 (WHITE, J., dissenting). In light of Bellotti , we
have upheld one parental consent regulation which incorporated a
judicial bypass option we viewed as sufficient, see Planned
Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U.
S. 476 (1983), but have invalidated another because of our belief
that the judicial procedure did not satisfy the dictates of Bellotti , see Akron v. Akron Center for Reproductive
Health, Inc. , 462 U. S. 416 , 439-442
(1983). We have never had occasion, as we have in the parental
notice context, to further parse our parental consent jurisprudence
into one-parent and two-parent components.

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

															States have also regularly tried to ensure that a woman's
decision to have an abortion is an informed and well-considered
one. In Danforth , we upheld a requirement that a woman
sign a consent form prior to her abortion, and observed that "it is
desirable and imperative that [the decision] [948] be made with full knowledge of its nature and consequences." Id. , at 67. Since that case, however, we have twice
invalidated state statutes designed to impart such knowledge to a
woman seeking an abortion. In Akron , we held
unconstitutional a regulation requiring a physician to inform a
woman seeking an abortion of the status of her pregnancy, the
development of her fetus, the date of possible viability, the
complications that could result from an abortion, and the
availability of agencies providing assistance and information with
respect to adoption and childbirth. Akron v. Akron Center for
Reproductive Health, supra , at 442-445. More recently, in Thornburgh v. American College of Obstetricians and
Gynecologists , 476 U. S. 747 (1986), we
struck down a more limited Pennsylvania regulation requiring that a
woman be informed of the risks associated with the abortion
procedure and the assistance available to her if she decided to
proceed with her pregnancy, because we saw the compelled
information as "the antithesis of informed consent." Id. ,
at 764. Even when a State has sought only to provide information
that, in our view, was consistent with the Roe framework,
we concluded that the State could not require that a physician
furnish the information, but instead had to alternatively allow
nonphysician counselors to provide it. Akron v. Akron Center
for Reproductive Health, 462 U. S., at 448-449. In Akron as well, we went further and held that a State may
not require a physician to wait 24 hours to perform an abortion
after receiving the consent of a woman. Although the State sought
to ensure that the woman's decision was carefully considered, the
Court concluded that the Constitution forbade the State to impose
any sort of delay. Id. , at 449-451.

															We have not allowed States much leeway to regulate even the
actual abortion procedure. Although a State can require that
second-trimester abortions be performed in outpatient clinics, see Simopoulos v. Virginia , 462 U. S. 506 (1983), we
concluded in Akron and Ashcroft that a State
could not [949] require that such abortions be performed only in hospitals. See Akron v. Akron Center for Reproductive Health, supra , at
437-439; Planned Parenthood Assn. of Kansas City, Mo., Inc. v.
Ashcroft, supra , at 481-482. Despite the fact that Roe expressly allowed regulation after the first trimester
in furtherance of maternal health, "'present medical knowledge,'"
in our view, could not justify such a hospitalization requirement
under the trimester framework. Akron v. Akron Center for
Reproductive Health, supra , at 437 (quoting Roe v. Wade,
supra , at 163). And in Danforth , the Court held that
Missouri could not outlaw the saline amniocentesis method of
abortion, concluding that the Missouri Legislature had "failed to
appreciate and to consider several significant facts" in making its
decision. 428 U. S., at 77.

															Although Roe allowed state regulation after the point
of viability to protect the potential life of the fetus, the Court
subsequently rejected attempts to regulate in this manner. In Colautti v. Franklin , 439 U. S. 379 (1979), the
Court struck down a statute that governed the determination of
viability. Id. , at 390-397. In the process, we made clear
that the trimester framework incorporated only one definition of
viability-ours-as we forbade States to decide that a certain
objective indicator-"be it weeks of gestation or fetal weight or
any other single factor"-should govern the definition of viability. Id. , at 389. In that same case, we also invalidated a
regulation requiring a physician to use the abortion technique
offering the best chance for fetal survival when performing
postviability abortions. See id. , at 397-401; see also Thornburgh v. American College of Obstetricians and
Gynecologists , 476 U. S., at 768-769 (invalidating a similar
regulation). In Thornburgh , the Court struck down
Pennsylvania's requirement that a second physician be present at
postviability abortions to help preserve the health of the unborn
child, on the ground that it did not incorporate a sufficient
medical emergency exception. Id. , at 769-771. Regulations
governing the treatment of aborted fetuses have [950] met a similar fate. In Akron , we invalidated a
provision requiring physicians performing abortions to "insure that
the remains of the unborn child are disposed of in a humane and
sanitary manner." 462 U. S., at 451 (internal quotation marks
omitted).

															Dissents in these cases expressed the view that the Court was
expanding upon Roe in imposing ever greater restrictions
on the States. See Thornburgh v. American College of
Obstetricians and Gynecologists , 476 U. S., at 783 (Burger, C.
J., dissenting) ("The extent to which the Court has departed from
the limitations expressed in Roe is readily apparent"); id. , at 814 (WHITE, J., dissenting) ("[T]he majority
indiscriminately strikes down statutory provisions that in no way
contravene the right recognized in Roe"). And, when
confronted with state regulations of this type in past years, the
Court has become increasingly more divided: The three most recent
abortion cases have not commanded a Court opinion. See Ohio v.
Akron Center for Reproductive Health , 497 U. S. 502 (1990); Hodgson v. Minnesota , 497 U. S. 417 (1990); Webster v. Reproductive Health Services , 492 U. S. 490 (1989).

															The task of the Court of Appeals in the present cases was
obviously complicated by this confusion and uncertainty. Following Marks v. United States , 430 U. S. 188 (1977), it
concluded that in light of Webster and Hodgson ,
the strict scrutiny standard enunciated in Roe was no
longer applicable, and that the "undue burden" standard adopted by
JUSTICE O'CONNOR was the governing principle. This state of
confusion and disagreement warrants reexamination of the
"fundamental right" accorded to a woman's decision to abort a fetus
in Roe , with its concomitant requirement that any state
regulation of abortion survive "strict scrutiny." See Payne v.
Tennessee , 501
U. S. 808 , 827-828 (1991) (observing that reexamination of
constitutional decisions is appropriate when those decisions have
generated uncertainty and failed to provide clear guidance, because
"correction through legis- [951] lative action is practically impossible" (internal quotation
marks omitted)); Garcia v. San Antonio Metropolitan Transit
Authority , 469
U. S. 528 , 546-547, 557 (1985).

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

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

															In Roe v. Wade , the Court recognized a "guarantee of
personal privacy" which "is broad enough to encompass a woman's
decision whether or not to terminate her pregnancy." 410 U. S., at
152-153. We are now of the view that, in terming this right
fundamental, the Court in Roe read the earlier [952] opinions upon which it based its decision much too broadly.
Unlike marriage, procreation, and contraception, abortion "involves
the purposeful termination of a potential life." Harris v.
McRae , 448 U. S.
297 , 325 (1980). The abortion decision must therefore "be
recognized as sui generis , different in kind from the
others that the Court has protected under the rubric of personal or
family privacy and autonomy." Thornburgh v. American College of
Obstetricians and Gynecologists, supra , at 792 (WHITE, J.,
dissenting). One cannot ignore the fact that a woman is not
isolated in her pregnancy, and that the decision to abort
necessarily involves the destruction of a fetus. See Michael H.
v. Gerald D., supra , at 124, n. 4 (To look "at the act which
is assertedly the subject of a liberty interest in isolation from
its effect upon other people [is] like inquiring whether there is a
liberty interest in firing a gun where the case at hand happens to
involve its discharge into another person's body").

															Nor do the historical traditions of the American people support
the view that the right to terminate one's pregnancy is
"fundamental." The common law which we inherited from England made
abortion after "quickening" an offense. At the time of the adoption
of the Fourteenth Amendment, statutory prohibitions or restrictions
on abortion were commonplace; in 1868, at least 28 of the then-37
States and 8 Territories had statutes banning or limiting abortion.
J. Mohr, Abortion in America 200 (1978). By the turn of the century
virtually every State had a law prohibiting or restricting abortion
on its books. By the middle of the present century, a
liberalization trend had set in. But 21 of the restrictive abortion
laws in effect in 1868 were still in effect in 1973 when Roe was decided, and an overwhelming majority of the
States prohibited abortion unless necessary to preserve the life or
health of the mother. Roe v. Wade, 410 U. S., at 139-140; id. , at 176-177, n. 2 (REHNQUIST, J., dissenting). On this
record, it can scarcely be said that any deeply rooted tradition of
relatively unrestricted abortion in our his- [953] tory supported the classification of the right to abortion as
"fundamental" under the Due Process Clause of the Fourteenth
Amendment.

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

															II

															The joint opinion of JUSTICES O'CONNOR, KENNEDY, and SOUTER
cannot bring itself to say that Roe was correct as an
original matter, but the authors are of the view that "the
immediate question is not the soundness of Roe 's
resolution of the issue, but the precedential force that must be
accorded to its holding." Ante , at 871. Instead of
claiming that Roe [954] was correct as a matter of original constitutional
interpretation, the opinion therefore contains an elaborate
discussion of stare decisis. This discussion of the
principle of stare decisis appears to be almost entirely
dicta, because the joint opinion does not apply that principle in
dealing with Roe. Roe decided that a woman had a
fundamental right to an abortion. The joint opinion rejects that
view. Roe decided that abortion regulations were to be
subjected to "strict scrutiny" and could be justified only in the
light of "compelling state interests." The joint opinion rejects
that view. Ante , at 872-873; see Roe v. Wade,
supra , at 162-164. Roe analyzed abortion regulation
under a rigid trimester framework, a framework which has guided
this Court's decisionmaking for 19 years. The joint opinion rejects
that framework. Ante , at 873. Stare decisis is defined in Black's Law Dictionary as
meaning "to abide by, or adhere to, decided cases." Black's Law
Dictionary 1406 (6th ed. 1990). Whatever the "central holding" of Roe that is left after the joint opinion finishes
dissecting it is surely not the result of that principle. While
purporting to adhere to precedent, the joint opinion instead
revises it. Roe continues to exist, but only in the way a
storefront on a western movie set exists: a mere facade to give the
illusion of reality. Decisions following Roe , such as Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416 (1983), and Thornburgh v. American College of
Obstetricians and Gynecologists , 476 U. S. 747 (1986), are
frankly overruled in part under the "undue burden" standard
expounded in the joint opinion. Ante , at 881-884.

															In our view, authentic principles of stare decisis do
not require that any portion of the reasoning in Roe be
kept intact. "Stare decisis is not . . . a
universal, inexorable command," especially in cases involving the
interpretation of the Federal Constitution. Burnet v. Coronado
Oil & Gas Co. , 285 U. S. 393 , 405 (1932)
(Brandeis, J., dissenting). Erroneous decisions in such
constitutional cases are uniquely durable, because correction
through legislative action, save for [955] constitutional amendment, is impossible. It is therefore our
duty to reconsider constitutional interpretations that "depar[t]
from a proper understanding" of the Constitution. Garcia v. San
Antonio Metropolitan Transit Authority, 469 U. S., at 557; see United States v. Scott , 437 U. S. 82 , 101 (1978)
(" '[I]n cases involving the Federal Constitution, . . .
[t]he Court bows to the lessons of experience and the force of
better reasoning, recognizing that the process of trial and error,
so fruitful in the physical sciences, is appropriate also in the
judicial function'" (quoting Burnet v. Coronado Oil & Gas Co., supra , at 406-408 (Brandeis, J.,
dissenting))); Smith v. Allwright , 321 U. S. 649 , 665
(1944). Our constitutional watch does not cease merely because we
have spoken before on an issue; when it becomes clear that a prior
constitutional interpretation is unsound we are obliged to
reexamine the question. See, e. g., West Virginia Bd. of Ed. v.
Barnette , 319 U.
S. 624 , 642 (1943); Erie R. Co. v. Tompkins , 304 U. S. 64 , 74-78
(1938).

															The joint opinion discusses several stare decisis factors which, it asserts, point toward retaining a portion of Roe. Two of these factors are that the main "factual
underpinning" of Roe has remained the same, and that its
doctrinal foundation is no weaker now than it was in 1973. Ante , at 857-860. Of course, what might be called the
basic facts which gave rise to Roe have remained the
same-women become pregnant, there is a point somewhere, depending
on medical technology, where a fetus becomes viable, and women give
birth to children. But this is only to say that the same facts
which gave rise to Roe will continue to give rise to
similar cases. It is not a reason, in and of itself, why those
cases must be decided in the same incorrect manner as was the first
case to deal with the question. And surely there is no requirement,
in considering whether to depart from stare decisis in a
constitutional case, that a decision be more wrong now than it was
at the time it was rendered. If that were true, the most outlandish
constitutional decision could sur- [956] vive forever, based simply on the fact that it was no more
outlandish later than it was when originally rendered.

															Nor does the joint opinion faithfully follow this alleged
requirement. The opinion frankly concludes that Roe and
its progeny were wrong in failing to recognize that the State's
interests in maternal health and in the protection of unborn human
life exist throughout pregnancy. Ante , at 871-873. But
there is no indication that these components of Roe are
any more incorrect at this juncture than they were at its
inception.

															The joint opinion also points to the reliance interests involved
in this context in its effort to explain why precedent must be
followed for precedent's sake. Certainly it is true that where
reliance is truly at issue, as in the case of judicial decisions
that have formed the basis for private decisions, "[c]onsiderations
in favor of stare decisis are at their acme." Payne v.
Tennessee , 501 U. S., at 828. But, as the joint opinion
apparently agrees, ante , at 855-856, any traditional
notion of reliance is not applicable here. The Court today cuts
back on the protection afforded by Roe , and no one claims
that this action defeats any reliance interest in the disavowed
trimester framework. Similarly, reliance interests would not be
diminished were the Court to go further and acknowledge the full
error of Roe , as "reproductive planning could take
virtually immediate account of" this action. Ante , at
856.

															The joint opinion thus turns to what can only be described as an
unconventional-and unconvincing-notion of reliance, a view based on
the surmise that the availability of abortion since Roe has led to "two decades of economic and social developments" that
would be undercut if the error of Roe were recognized. Ante , at 856. The joint opinion's assertion of this fact
is undeveloped and totally conclusory. In fact, one cannot be sure
to what economic and social developments the opinion is referring.
Surely it is dubious to suggest that women have reached their
"places in society" in [957] reliance upon Roe , rather than as a result of their
determination to obtain higher education and compete with men in
the job market, and of society's increasing recognition of their
ability to fill positions that were previously thought to be
reserved only for men. Ante , at 856.

															In the end, having failed to put forth any evidence to prove any
true reliance, the joint opinion's argument is based solely on
generalized assertions about the national psyche, on a belief that
the people of this country have grown accustomed to the Roe decision over the last 19 years and have "ordered
their thinking and living around" it. Ante , at 856. As an
initial matter, one might inquire how the joint opinion can view
the "central holding" of Roe as so deeply rooted in our
constitutional culture, when it so casually uproots and disposes of
that same decision's trimester framework. Furthermore, at various
points in the past, the same could have been said about this
Court's erroneous decisions that the Constitution allowed "separate
but equal" treatment of minorities, see Plessy v.
Ferguson , 163 U.
S. 537 (1896), or that "liberty" under the Due Process Clause
protected "freedom of contract," see Adkins v. Children's
Hospital of District of Columbia , 261 U. S. 525 (1923); Lochner v. New York , 198 U. S. 45 (1905). The
"separate but equal" doctrine lasted 58 years after Plessy , and Lochner's protection of contractual
freedom lasted 32 years. However, the simple fact that a generation
or more had grown used to these major decisions did not prevent the
Court from correcting its errors in those cases, nor should it
prevent us from correctly interpreting the Constitution here. See Brown v. Board of Education , 347 U. S. 483 (1954)
(rejecting the "separate but equal" doctrine); West Coast Hotel
Co. v. Parrish , 300 U. S. 379 (1937)
(overruling Adkins v. Children's Hospital, supra , in
upholding Washington's minimum wage law).

															Apparently realizing that conventional stare decisis principles do not support its position, the joint opinion advances
a belief that retaining a portion of Roe is necessary to
protect [958] the "legitimacy" of this Court. Ante , at 861-869.
Because the Court must take care to render decisions "grounded
truly in principle," and not simply as political and social
compromises, ante , at 865, the joint opinion properly
declares it to be this Court's duty to ignore the public criticism
and protest that may arise as a result of a decision. Few would
quarrel with this statement, although it may be doubted that
Members of this Court, holding their tenure as they do during
constitutional "good behavior," are at all likely to be intimidated
by such public protests.

															But the joint opinion goes on to state that when the Court
"resolve[s] the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases," its decision is
exempt from reconsideration under established principles of stare decisis in constitutional cases. Ante , at
866. This is so, the joint opinion contends, because in those
"intensely divisive" cases the Court has "call[ed] the contending
sides of a national controversy to end their national division by
accepting a common mandate rooted in the Constitution," and must
therefore take special care not to be perceived as "surrender[ing]
to political pressure" and continued opposition. Ante , at
866, 867. This is a truly novel principle, one which is contrary to
both the Court's historical practice and to the Court's traditional
willingness to tolerate criticism of its opinions. Under this
principle, when the Court has ruled on a divisive issue, it is
apparently prevented from overruling that decision for the sole
reason that it was incorrect, unless opposition to the original
decision has died away. The first difficulty with this principle lies in its assumption
that cases that are "intensely divisive" can be readily
distinguished from those that are not. The question of whether a
particular issue is "intensely divisive" enough to qualify for
special protection is entirely subjective and dependent on the
individual assumptions of the Members of this Court. In addition,
because the Court's duty is to ignore public opinion and criticism
on issues that come before it, its Members are [959] in perhaps the worst position to judge whether a decision
divides the Nation deeply enough to justify such uncommon
protection. Although many of the Court's decisions divide the
populace to a large degree, we have not previously on that account
shied away from applying normal rules of stare decisis when urged to reconsider earlier decisions. Over the past 21 years,
for example, the Court has overruled in whole or in part 34 of its
previous constitutional decisions. See Payne v. Tennessee,
supra , at 828-830, and n. 1 (listing cases).

															The joint opinion picks out and discusses two prior Court
rulings that it believes are of the "intensely divisive" variety,
and concludes that they are of comparable dimension to Roe.
Ante , at 861-864 (discussing Lochner v. New York,
supra , and Plessy v. Ferguson, supra). It appears to
us very odd indeed that the joint opinion chooses as benchmarks two
cases in which the Court chose not to adhere to erroneous
constitutional precedent, but instead enhanced its stature by
acknowledging and correcting its error, apparently in violation of
the joint opinion's "legitimacy" principle. See West Coast
Hotel Co. v. Parrish, supra; Brown v. Board of Education,
supra. One might also wonder how it is that the joint opinion
puts these, and not others, in the "intensely divisive" category,
and how it assumes that these are the only two lines of cases of
comparable dimension to Roe. There is no reason to think
that either Plessy or Lochner produced the sort
of public protest when they were decided that Roe did.
There were undoubtedly large segments of the bench and bar who
agreed with the dissenting views in those cases, but surely that
cannot be what the Court means when it uses the term "intensely
divisive," or many other cases would have to be added to the list.
In terms of public protest, however, Roe , so far as we
know, was unique. But just as the Court should not respond to that
sort of protest by retreating from the decision simply to allay the
concerns of the protesters, it should likewise not respond by
determining to adhere to the [960] decision at all costs lest it seem to be retreating
under fire. Public protests should not alter the normal application
of stare decisis , lest perfectly lawful protest activity
be penalized by the Court itself.

															Taking the joint opinion on its own terms, we doubt that its
distinction between Roe , on the one hand, and Plessy and Lochner , on the other, withstands
analysis. The joint opinion acknowledges that the Court improved
its stature by overruling Plessy in Brown on a
deeply divisive issue. And our decision in West Coast
Hotel , which overruled Adkins v. Children's Hospital,
supra , and Lochner , was rendered at a time when
Congress was considering President Franklin Roosevelt's proposal to
"reorganize" this Court and enable him to name six additional
Justices in the event that any Member of the Court over the age of
70 did not elect to retire. It is difficult to imagine a situation
in which the Court would face more intense opposition to a prior
ruling than it did at that time, and, under the general principle
proclaimed in the joint opinion, the Court seemingly should have
responded to this opposition by stubbornly refusing to reexamine
the Lochner rationale, lest it lose legitimacy by
appearing to "overrule under fire." Ante , at 867.

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

															For example, the opinion asserts that the Court could
justifiably overrule its decision in Lochner only because
the Depression had convinced "most people" that constitutional
protection of contractual freedom contributed to an economy [961] that failed to protect the welfare of all. Ante , at
861. Surely the joint opinion does not mean to suggest that people
saw this Court's failure to uphold minimum wage statutes as the
cause of the Great Depression! In any event, the Lochner Court did not base its rule upon the policy judgment that an
unregulated market was fundamental to a stable economy; it simple
believed, erroneously, that "liberty" under the Due Process Clause
protected the "right to make a contract." Lochner v. New
York , 198 U. S., at 53. Nor is it the case that the people of
this Nation only discovered the dangers of extreme laissez-faire
economics because of the Depression. State laws regulating maximum
hours and minimum wages were in existence well before that time. A
Utah statute of that sort enacted in 1896 was involved in our
decision in Holden v. Hardy , 169 U. S. 366 (1898), and
other States followed suit shortly afterwards, see, e. g.,
Muller v. Oregon , 208 U. S. 412 (1908); Bunting v. Oregon , 243 U. S. 426 (1917).
These statutes were indeed enacted because of a belief on the part
of their sponsors that "freedom of contract" did not protect the
welfare of workers, demonstrating that that belief manifested
itself more than a generation before the Great Depression. Whether
"most people" had come to share it in the hard times of the 1930's
is, insofar as anything the joint opinion advances, entirely
speculative. The crucial failing at that time was not that workers
were not paid a fair wage, but that there was no work available at any wage.

															When the Court finally recognized its error in West Coast
Hotel , it did not engage in the post hoc rationalization that the joint opinion attributes to it today; it
did not state that Lochner had been based on an economic
view that had fallen into disfavor, and that it therefore should be
overruled. Chief Justice Hughes in his opinion for the Court simply
recognized what Justice Holmes had previously recognized in his Lochner dissent, that "[t]he Constitution does not speak
of freedom of contract." West Coast Hotel Co. v. Parrish ,
300 U. S., at 391; Lochner v. New York, supra , at 75
(Holmes, [962] J., dissenting) ("[A] constitution is not intended to embody a
particular economic theory, whether of paternalism and the organic
relation of the citizen to the State or of laissez
faire"). Although the Court did acknowledge in the last
paragraph of its opinion the state of affairs during the
then-current Depression, the theme of the opinion is that the Court
had been mistaken as a matter of constitutional law when it
embraced "freedom of contract" 32 years previously.

															The joint opinion also agrees that the Court acted properly in
rejecting the doctrine of "separate but equal" in Brown. In fact, the opinion lauds Brown in comparing it to Roe. Ante, at 867. This is strange, in that under the
opinion's "legitimacy" principle the Court would seemingly have
been forced to adhere to its erroneous decision in Plessy because of its "intensely divisive" character. To us, adherence to Roe today under the guise of "legitimacy" would seem to
resemble more closely adherence to Plessy on the same
ground. Fortunately, the Court did not choose that option in Brown , and instead frankly repudiated Plessy. The
joint opinion concludes that such repudiation was justified only
because of newly discovered evidence that segregation had the
effect of treating one race as inferior to another. But it can
hardly be argued that this was not urged upon those who decided Plessy , as Justice Harlan observed in his dissent that the
law at issue "puts the brand of servitude and degradation upon a
large class of our fellow-citizens, our equals before the law." Plessy v. Ferguson , 163 U. S., at 562. It is clear that
the same arguments made before the Court in Brown were
made in Plessy as well. The Court in Brown simply
recognized, as Justice Harlan had recognized beforehand, that the
Fourteenth Amendment does not permit racial segregation. The rule
of Brown is not tied to popular opinion about the evils of
segregation; it is a judgment that the Equal Protection Clause does
not permit racial segregation, no matter whether the public might
come to believe that it is beneficial. On that ground it stands,
and on that ground [963] alone the Court was justified in properly concluding that the Plessy Court had erred.

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

															There are other reasons why the joint opinion's discussion of
legitimacy is unconvincing as well. In assuming that the Court is
perceived as "surrender[ing] to political pressure" when it
overrules a controversial decision, ante , at 867, the
joint opinion forgets that there are two sides to any controversy.
The joint opinion asserts that, in order to protect its legitimacy,
the Court must refrain from overruling a controversial decision
lest it be viewed as favoring those who oppose the decision. But a
decision to adhere to prior precedent is subject to the
same criticism, for in such a case one can easily argue that the
Court is responding to those who have demonstrated in favor of the
original decision. The decision in Roe has engendered
large demonstrations, including repeated marches on this Court and
on Congress, both in opposition to and in support of that opinion.
A decision either way on Roe can therefore be perceived as
favoring one group or the other. But this perceived dilemma arises
only if one assumes, as the joint opinion does, that the Court [964] should make its decisions with a view toward speculative public
perceptions. If one assumes instead, as the Court surely did in
both Brown and West Coast Hotel , that the Court's
legitimacy is enhanced by faithful interpretation of the
Constitution irrespective of public opposition, such
self-engendered difficulties may be put to one side. Roe is not this Court's only decision to generate
conflict. Our decisions in some recent capital cases, and in Bowers v. Hardwick , 478 U. S. 186 (1986),
have also engendered demonstrations in opposition. The joint
opinion's message to such protesters appears to be that they must
cease their activities in order to serve their cause, because their
protests will only cement in place a decision which by normal
standards of stare decisis should be reconsidered. Nearly
a century ago, Justice David J. Brewer of this Court, in an article
discussing criticism of its decisions, observed that "many
criticisms may be, like their authors, devoid of good taste, but
better all sorts of criticism than no criticism at all." Justice
Brewer on "The Nation's Anchor," 57 Albany L. J. 166, 169 (1898).
This was good advice to the Court then, as it is today. Strong and
often misguided criticism of a decision should not render the
decision immune from reconsideration, lest a fetish for legitimacy
penalize freedom of expression.

															The end result of the joint opinion's paeans of praise for
legitimacy is the enunciation of a brand new standard for
evaluating state regulation of a woman's right to abortion--the
"undue burden" standard. As indicated above, Roe v. Wade adopted a "fundamental right" standard under which state
regulations could survive only if they met the requirement of
"strict scrutiny." While we disagree with that standard, it at
least had a recognized basis in constitutional law at the time Roe was decided. The same cannot be said for the "undue
burden" standard, which is created largely out of whole cloth by
the authors of the joint opinion. It is a standard which even today
does not command the support of a majority of this Court. And it
will not, we believe, re- [965] sult in the sort of "simple limitation," easily applied, which
the joint opinion anticipates. Ante , at 855. In sum, it is
a standard which is not built to last.

															In evaluating abortion regulations under that standard, judges
will have to decide whether they place a "substantial obstacle" in
the path of a woman seeking an abortion. Ante , at 877. In
that this standard is based even more on a judge's subjective
determinations than was the trimester framework, the standard will
do nothing to prevent "judges from roaming at large in the
constitutional field" guided only by their personal views. Griswold v. Connecticut , 381 U. S., at 502 (Harlan, J.,
concurring in judgment). Because the undue burden standard is
plucked from nowhere, the question of what is a "substantial
obstacle" to abortion will undoubtedly engender a variety of
conflicting views. For example, in the very matter before us now,
the authors of the joint opinion would uphold Pennsylvania's
24-hour waiting period, concluding that a "particular burden" on
some women is not a substantial obstacle. Ante , at 887.
But the authors would at the same time strike down Pennsylvania's
spousal notice provision, after finding that in a "large fraction"
of cases the provision will be a substantial obstacle. Ante , at 895. And, while the authors conclude that the
informed consent provisions do not constitute an "undue burden,"
JUSTICE STEVENS would hold that they do. Ante , at
920-922.

															Furthermore, while striking down the spousal notice regulation, the joint opinion would uphold a parental consent restriction that certainly places very substantial
obstacles in the path of a minor's abortion choice. The joint
opinion is forthright in admitting that it draws this distinction
based on a policy judgment that parents will have the best
interests of their children at heart, while the same is not
necessarily true of husbands as to their wives. Ante , at
895. This mayor may not be a correct judgment, but it is
quintessentially a legislative one. The "undue burden" inquiry does
not in any way supply the distinction between parental consent
and [966] spousal consent which the joint opinion adopts. Despite the
efforts of the joint opinion, the undue burden standard presents
nothing more workable than the trimester framework which it
discards today. Under the guise of the Constitution, this Court
will still impart its own preferences on the States in the form of
a complex abortion code.

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

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

															III

															A

															Section 3205 of the Act imposes certain requirements related to
the informed consent of a woman seeking an abortion. 18 Pa. Cons.
Stat. § 3205 (1990). Section 3205(a)(1) requires that the referring
or performing physician must inform a woman contemplating an
abortion of (i) the nature of the procedure and the risks and
alternatives that a reasonable patient would find material; (ii)
the fetus' probable ges- [967] tational age; and (iii) the medical risks involved in carrying
her pregnancy to term. Section 3205(a)(2) requires a physician or a
nonphysician counselor to inform the woman that (i) the state
health department publishes free materials describing the fetus at
different stages and listing abortion alternatives; (ii) medical
assistance benefits may be available for prenatal, childbirth, and
neonatal care; and (iii) the child's father is liable for child
support. The Act also imposes a 24-hour waiting period between the
time that the woman receives the required information and the time
that the physician is allowed to perform the abortion. See Appendix
to opinion of O'CONNOR, KENNEDY, and SOUTER, JJ., ante , at
902-904.

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

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

															Section 3205(a)(1) requires a physician to disclose certain
information about the abortion procedure and its risks and
alternatives. This requirement is certainly no large burden, as the
Court of Appeals found that "the record shows that the clinics,
without exception, insist on providing this information to women
before an abortion is performed." 947 F. 2d, at 703. We are of the
view that this information "clearly is related to maternal health
and to the State's legitimate purpose in requiring informed
consent." Akron v. [968] Akron Center for Reproductive Health, Inc. , 462 U. S.,
at 446. An accurate description of the gestational age of the fetus
and of the risks involved in carrying a child to term helps to
further both those interests and the State's legitimate interest in
unborn human life. See id. , at 445-446, n. 37 (required
disclosure of gestational age of the fetus "certainly is not
objectionable"). Although petitioners contend that it is
unreasonable for the State to require that a physician, as opposed
to a nonphysician counselor, disclose this information, we agree
with the Court of Appeals that a State "may rationally decide that
physicians are better qualified than counselors to impart this
information and answer questions about the medical aspects of the
available alternatives." 947 F. 2d, at 704.

															Section 3205(a)(2) compels the disclosure, by a physician or a
counselor, of information concerning the availability of paternal
child support and state-funded alternatives if the woman decides to
proceed with her pregnancy. Here again, the Court of Appeals
observed that "the record indicates that most clinics already
require that a counselor consult in person with the woman about
alternatives to abortion before the abortion is performed." Id. , at 704-705. And petitioners do not claim that the
information required to be disclosed by statute is in any way false
or inaccurate; indeed, the Court of Appeals found it to be
"relevant, accurate, and noninflammatory." Id. , at 705. We
conclude that this required presentation of "balanced information"
is rationally related to the State's legitimate interest in
ensuring that the woman's consent is truly informed, Thornburgh
v. American College of Obstetricians and Gynecologists , 476 U.
S., at 830 (O'CONNOR, J., dissenting), and in addition furthers the
State's interest in preserving unborn life. That the information
might create some uncertainty and persuade some women to forgo
abortions does not lead to the conclusion that the Constitution
forbids the provision of such information. Indeed, it only
demonstrates that this information might [969] very well make a difference, and that it is therefore relevant
to a woman's informed choice. Cf. id. , at 801 (WHITE, J.,
dissenting) ("[T]he ostensible objective of Roe v. Wade is
not maximizing the number of abortions, but maximizing choice"). We
acknowledge that in Thornburgh this Court struck down
informed consent requirements similar to the ones at issue here.
See id. , at 760-764. It is clear, however, that while the
detailed framework of Roe led to the Court's invalidation
of those informational requirements, they "would have been
sustained under any traditional standard of judicial review,
. . . or for any other surgical procedure except
abortion." Webster v. Reproductive Health Services , 492 U.
S., at 517 (plurality opinion) (citing Thornburgh v. American
College of Obstetricians and Gynecologists , 476 U. S., at 802
(WHITE, J., dissenting); id. , at 783 (Burger, C. J.,
dissenting)). In light of our rejection of Roe 's
"fundamental right" approach to this subject, we do not regard Thornburgh as controlling.

															For the same reason, we do not feel bound to follow this Court's
previous holding that a State's 24-hour mandatory waiting period is
unconstitutional. See Akron v. Akron Center for Reproductive
Health, Inc., supra , at 449-451. Petitioners are correct that
such a provision will result in delays for some women that might
not otherwise exist, therefore placing a burden on their liberty.
But the provision in no way prohibits abortions, and the informed
consent and waiting period requirements do not apply in the case of
a medical emergency. See 18 Pa. Cons. Stat. §§ 3205(a), (b) (1990).
We are of the view that, in providing time for reflection and
reconsideration, the waiting period helps ensure that a woman's
decision to abort is a well-considered one, and reasonably furthers
the State's legitimate interest in maternal health and in the
unborn life of the fetus. It "is surely a small cost to impose to
ensure that the woman's decision is well considered in light of its
certain and irreparable conse- [970] quences on fetal life, and the possible effects on her own." 462
U. S., at 474 (O'CONNOR, J., dissenting).

															B

															In addition to providing her own informed consent, before an
unemancipated woman under the age of 18 may obtain an abortion she
must either furnish the consent of one of her parents, or must opt
for the judicial procedure that allows her to bypass the consent
requirement. Under the judicial bypass option, a minor can obtain
an abortion if a state court finds that she is capable of giving
her informed consent and has indeed given such consent, or determines that an abortion is in her best interests. Records of
these court proceedings are kept confidential. The Act directs the
state trial court to render a decision within three days of the
woman's application, and the entire procedure, including appeal to
Pennsylvania Superior Court, is to last no longer than eight
business days. The parental consent requirement does not apply in
the case of a medical emergency. 18 Pa. Cons. Stat. § 3206 (1990).
See Appendix to opinion of O'CONNOR, KENNEDY, and SOUTER, JJ., ante , at 904-906.

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

															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 some- [971] times impair their ability to exercise their rights wisely." Hodgson v. Minnesota , 497 U. S., at 444 (opinion of
STEVENS, J.). A requirement of parental consent to abortion, like
myriad other restrictions placed upon minors in other contexts, is
reasonably designed to further this important and legitimate state
interest. In our view, it is entirely "rational and fair for the
State to conclude that, in most instances, the family will strive
to give a lonely or even terrified minor advice that is both
compassionate and mature." Ohio v. Akron Center for
Reproductive Health , 497 U. S., at 520 (opinion of KENNEDY,
J.); see also Planned Parenthood of Central Mo. v.
Danforth , 428 U. S., at 91 (Stewart, J., concurring) ("There
can be little doubt that the State furthers a constitutionally
permissible end by encouraging an unmarried pregnant minor to seek
the help and advice of her parents in making the very important
decision whether or not to bear a child"). We thus conclude that
Pennsylvania's parental consent requirement should be upheld.

															C

															Section 3209 of the Act contains the spousal notification
provision. It requires that, before a physician may perform an
abortion on a married woman, the woman must sign a statement
indicating that she has notified her husband of her planned
abortion. A woman is not required to notify her husband if (1) her
husband is not the father, (2) her husband, after diligent effort,
cannot be located, (3) the pregnancy is the result of a spousal
sexual assault that has been reported to the authorities, or (4)
the woman has reason to believe that notifying her husband is
likely to result in the infliction of bodily injury upon her by him
or by another individual. In addition, a woman is exempted from the
notification requirement in the case of a medical emergency. 18 Pa.
Cons. Stat. § 3209 (1990). See Appendix to opinion of O'CONNOR,
KENNEDY, and SOUTER, JJ., ante , at 908-909. [972] We first emphasize that Pennsylvania has not imposed a spousal consent requirement of the type the Court struck down in Planned Parenthood of Central Mo. v. Danforth , 428 U. S.,
at 67-72. Missouri's spousal consent provision was invalidated in
that case because of the Court's view that it unconstitutionally
granted to the husband "a veto power exercisable for any reason
whatsoever or for no reason at all." Id. , at 71. But the
provision here involves a much less intrusive requirement of
spousal notification , not consent. Such a law requiring
only notice to the husband "does not give any third party the legal
right to make the [woman's] decision for her, or to prevent her
from obtaining an abortion should she choose to have one
performed." Hodgson v. Minnesota, supra , at 496 (KENNEDY,
J., concurring in judgment in part and dissenting in part); see H. L. v. Matheson , 450 U. S., at 411, n. 17. Danforth thus does not control our analysis. Petitioners
contend that it should, however; they argue that the real effect of
such a notice requirement is to give the power to husbands to veto
a woman's abortion choice. The District Court indeed found that the
notification provision created a risk that some woman who would
otherwise have an abortion will be prevented from having one. 947
F. 2d, at 712. For example, petitioners argue, many notified
husbands will prevent abortions through physical force,
psychological coercion, and other types of threats. But
Pennsylvania has incorporated exceptions in the notice provision in
an attempt to deal with these problems. For instance, a woman need
not notify her husband if the pregnancy is the result of a reported
sexual assault, or if she has reason to believe that she would
suffer bodily injury as a result of the notification. 18 Pa. Cons.
Stat. § 3209(b) (1990). Furthermore, because this is a facial
challenge to the Act, it is insufficient for petitioners to show
that the notification provision "might operate unconstitutionally
under some conceivable set of circumstances." United States v.
Salerno , 481 U.
S. 739 , 745 (1987). Thus, it is not enough for petition- [973] ers to show that, in some "worst case" circumstances, the notice
provision will operate as a grant of veto power to husbands. Ohio v. Akron Center for Reproductive Health , 497 U. S.,
at 514. Because they are making a facial challenge to the
provision, they must "show that no set of circumstances exists
under which the [provision] would be valid." Ibid. (internal quotation marks omitted). This they have failed to
do.[ Footnote 2 ] [974] The question before us is therefore whether the spousal
notification requirement rationally furthers any legitimate state
interests. We conclude that it does. First, a husband's interests
in procreation within marriage and in the potential life of his
unborn child are certainly substantial ones. See Planned
Parenthood of Central Mo. v. Danforth , 428 U. S., at 69 ("We
are not unaware of the deep and proper concern and interest that a
devoted and protective husband has in his wife's pregnancy and in
the growth and development of the fetus she is carrying"); id. , at 93 (WHITE, J., concurring in part and dissenting
in part); Skinner v. Oklahoma ex rel. Williamson , 316 U.
S., at 541. The State itself has legitimate interests both in
protecting these interests of the father and in protecting the
potential life of the fetus, and the spousal notification
requirement is reasonably related to advancing those state
interests. By providing that a husband will usually know of his
spouse's intent to have an abortion, the provision makes it more
likely that the husband will participate in deciding the fate of
his unborn child, a possibility that might otherwise have been
denied him. This participation might in some cases result in a
decision to proceed with the pregnancy. As Judge Alito observed in
his dissent below, "[t]he Pennsylvania legislature could have
rationally believed that some married women are initially inclined
to obtain an abortion without their husbands' knowledge because of
perceived problems-such as economic constraints, future plans, or
the husbands' previously expressed [975] opposition-that may be obviated by discussion prior to the
abortion." 947 F. 2d, at 726 (opinion concurring in part and
dissenting in part).

															The State also has a legitimate interest in promoting "the
integrity of the marital relationship." 18 Pa. Cons. Stat. §
3209(a) (1990). This Court has previously recognized "the
importance of the marital relationship in our society." Planned
Parenthood of Central Mo. v. Danforth, supra , at 69. In our
view, the spousal notice requirement is a rational attempt by the
State to improve truthful communication between spouses and
encourage collaborative decisionmaking, and thereby fosters marital
integrity. See Labine v. Vincent , 401 U. S. 532 , 538 (1971)
("[T]he power to make rules to establish, protect, and strengthen
family life" is committed to the state legislatures). Petitioners
argue that the notification requirement does not further any such
interest; they assert that the majority of wives already notify
their husbands of their abortion decisions, and the remainder have
excellent reasons for keeping their decisions a secret. In the
first case, they argue, the law is unnecessary, and in the second
case it will only serve to foster marital discord and threats of
harm. Thus, petitioners see the law as a totally irrational means
of furthering whatever legitimate interest the State might have.
But, in our view, it is unrealistic to assume that every
husband-wife relationship is either (1) so perfect that this type
of truthful and important communication will take place as a matter
of course, or (2) so imperfect that, upon notice, the husband will
react selfishly, violently, or contrary to the best interests of
his wife. See Planned Parenthood of Central Mo. v. Danforth,
supra , at 103-104 (STEVENS, J., concurring in part and
dissenting in part) (making a similar point in the context of a
parental consent statute). The spousal notice provision will
admittedly be unnecessary in some circumstances, and possibly
harmful in others, but "the existence of particular cases in which
a feature of a statute performs no function (or is even
counterpro- [976] ductive) ordinarily does not render the statute unconstitutional
or even constitutionally suspect." Thornburgh v. American
College of Obstetricians and Gynecologists, 476 U. S., at 800
(WHITE, J., dissenting). The Pennsylvania Legislature was in a
position to weigh the likely benefits of the provision against its
likely adverse effects, and presumably concluded, on balance, that
the provision would be beneficial. Whether this was a wise decision
or not, we cannot say that it was irrational. We therefore conclude
that the spousal notice provision comports with the Constitution.
See Har ris v. McRae , 448 U. S., at 325-326 ("It
is not the mission of this Court or any other to decide whether the
balance of competing interests . . . is wise social
policy").

															D

															The Act also imposes various reporting requirements. Section
3214(a) requires that abortion facilities file a report on each
abortion performed. The reports do not include the identity of the
women on whom abortions are performed, but they do contain a
variety of information about the abortions. For example, each
report must include the identities of the performing and referring
physicians, the gestational age of the fetus at the time of
abortion, and the basis for any medical judgment that a medical
emergency existed. See 18 Pa. Cons. Stat. §§ 3214(a)(1), (5), (10)
(1990). See Appendix to opinion of O'CONNOR, KENNEDY, and SOUTER,
JJ., ante , at 909-911. The District Court found that these
reports are kept completely confidential. 947 F. 2d, at 716. We
further conclude that these reporting requirements rationally
further the State's legitimate interests in advancing the state of
medical knowledge concerning maternal health and prenatal life, in
gathering statistical information with respect to patients, and in
ensuring compliance with other provisions of the Act.

															Section 3207 of the Act requires each abortion facility to file
a report with its name and address, as well as the names [977] and addresses of any parent, subsidiary, or affiliated
organizations. 18 Pa. Cons. Stat. § 3207(b) (1990). Section 3214(f)
further requires each facility to file quarterly reports stating
the total number of abortions performed, broken down by trimester.
Both of these reports are available to the public only if the
facility received state funds within the preceding 12 months. See
Appendix to opinion of O'CONNOR, KENNEDY, and SOUTER, JJ., ante , at 906, 911. Petitioners do not challenge the
requirement that facilities provide this information. They contend,
however, that the forced public disclosure of the information given
by facilities receiving public funds serves no legitimate state
interest. We disagree. Records relating to the expenditure of
public funds are generally available to the public under
Pennsylvania law. See Pa. Stat. Ann., Tit. 65, §§ 66.1, 66.2
(Purdon 1959 and Supp. 19911992). As the Court of Appeals observed,
"[w]hen a state provides money to a private commercial enterprise,
there is a legitimate public interest in informing taxpayers who
the funds are benefiting and what services the funds are
supporting." 947 F. 2d, at 718. These reporting requirements
rationally further this legitimate state interest.

															E

															Finally, petitioners challenge the medical emergency exception
provided for by the Act. The existence of a medical emergency
exempts compliance with the Act's informed consent, parental
consent, and spousal notice requirements. See 18 Pa. Cons. Stat. §§
3205(a), 3206(a), 3209(c) (1990). The Act defines a "medical
emergency" as "[t]hat condition which, on the basis of the physician's good
faith clinical judgment, so complicates the medical condition of a
pregnant woman as to necessitate the immediate abortion of her
pregnancy to avert her death or for which a delay will create
serious risk of substantial [978] and irreversible impairment of major bodily function."
§3203. Petitioners argued before the District Court that the statutory
definition was inadequate because it did not cover three serious
conditions that pregnant women can suffer preeclampsia, inevitable
abortion, and prematurely ruptured membrane. The District Court
agreed with petitioners that the medical emergency exception was
inadequate, but the Court of Appeals reversed this holding. In
construing the medical emergency provision, the Court of Appeals
first observed that all three conditions do indeed present the risk
of serious injury or death when an abortion is not performed, and
noted that the medical profession's uniformly prescribed treatment
for each of the three conditions is an immediate abortion. See 947
F. 2d, at 700-701. Finding that "[t]he Pennsylvania legislature did
not choose the wording of its medical emergency exception in a
vacuum," the court read the exception as intended "to assure that
compliance with its abortion regulations would not in any way pose
a significant threat to the life or health of a woman." Id. , at 701. It thus concluded that the exception
encompassed each of the three dangerous conditions pointed to by
petitioners.

															We observe that Pennsylvania's present definition of medical
emergency is almost an exact copy of that State's definition at the
time of this Court's ruling in Thornburgh , one which the
Court made reference to with apparent approval. 476 U. S., at 771
("It is clear that the Pennsylvania Legislature knows how to
provide a medical-emergency exception when it chooses to do
SO").[ Footnote 3 ] We find that the
interpretation [979] of the Court of Appeals in these cases is eminently reasonable,
and that the provision thus should be upheld. When a woman is faced
with any condition that poses a "significant threat to [her] life
or health," she is exempted from the Act's consent and notice
requirements and may proceed immediately with her abortion.

															IV

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

															JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JUSTICE WHITE, and
JUSTICE THOMAS join, concurring in the judgment in part and
dissenting in part.

															My views on this matter are unchanged from those I set forth in
my separate opinions in Webster v. Reproductive Health
Services , 492 U.
S. 490 , 532 (1989) (opinion concurring in part and concurring
in judgment), and Ohio v. Akron Center for Reproductive
Health , 497 U.
S. 502 , 520 (1990) (Akron II) (concurring opinion).
The States may, if they wish, permit abortion on demand, but the
Constitution does not re quire them to do so. The
permissibility of abortion, and the limitations upon it, are to be
resolved like most important questions in our democracy: by
citizens trying to persuade one another and then voting. As the
Court acknowledges, "where reasonable people disagree the
government can adopt one position or the other." Ante , at
851. 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 quali- [980] fication is the penultimate word. A State's choice between two
positions on which reasonable people can disagree is constitutional
even when (as is often the case) it intrudes upon a "liberty" in
the absolute sense. Laws against bigamy, for example--with which
entire societies of reasonable people disagree--intrude upon men
and women's liberty to marry and live with one another. But bigamy
happens not to be a liberty specially "protected" by the
Constitution.

															That is, quite simply, the issue in these cases: not whether the
power of a woman to abort her unborn child is a "liberty" in the
absolute sense; or even whether it is a liberty of great importance
to many women. Of course it is both. The issue is whether it is a
liberty protected by the Constitution of the United States. I am
sure it is not. I reach that conclusion not because of anything so
exalted as my views concerning the "concept of existence, of
meaning, of the universe, and of the mystery of human life." Ibid. Rather, I reach it for the same reason I reach the
conclusion that bigamy is not constitutionally protected-because of
two simple facts: (1) the Constitution says absolutely nothing
about it, and (2) the longstanding traditions of American society
have permitted it to be legally proscribed.[ Footnote 1 ] Akron II, supra , at 520 (SCALIA,
J., concurring). [981] The Court destroys the proposition, evidently meant to represent
my position, that "liberty" includes "only those practices, defined
at the most specific level, that were protected against government
interference by other rules of law when the Fourteenth Amendment
was ratified," ante , at 847 (citing Michael H. v.
Gerald D. , 491
U. S. 110 , 127, n. 6 (1989) (opinion of SCALIA, J.)). That is
not, however, what Michael H. says; it merely
observes that, in defining "liberty," we may not disregard a
specific, "relevant tradition protecting, or denying protection to,
the asserted right," ibid. But the Court does not wish to
be fettered by any such limitations on its preferences. The Court's
statement that it is "tempting" to acknowledge the
authoritativeness of tradition in order to "cur[b] the discretion
of federal judges," ante , at 847, is of course rhetoric
rather than reality; no government official is "tempted" to place
restraints upon his own freedom of action, which is why Lord Acton
did not say "Power tends to purify." The Court's temptation is in
the quite opposite and more natural direction-towards
systematically eliminating checks upon its own power; and it
succumbs.

															Beyond that brief summary of the essence of my position, I will
not swell the United States Reports with repetition of what I have
said before; and applying the rational basis test, I would uphold
the Pennsylvania statute in its entirety. I must, however, respond
to a few of the more outrageous arguments in today's opinion, which
it is beyond human nature to leave unanswered. I shall discuss each
of them under a quotation from the Court's opinion to which they
pertain. "The inescapable fact is that adjudication of
substantive due process claims may call upon the Court [982] in interpreting the Constitution to exercise that same
capacity which by tradition courts always have exercised: reasoned
judgment." Ante , at 849. Assuming that the question before us is to be resolved at such a
level of philosophical abstraction, in such isolation from the
traditions of American society, as by simply applying "reasoned
judgment," I do not see how that could possibly have produced the
answer the Court arrived at in Roe v. Wade , 410 U. S. 113 (1973).
Today's opinion describes the methodology of Roe , quite
accurately, as weighing against the woman's interest the State's
"'important and legitimate interest in protecting the potentiality
of human life.''' Ante , at 871 (quoting Roe,
supra , at 162). But "reasoned judgment" does not begin by
begging the question, as Roe and subsequent cases
unquestionably did by assuming that what the State is protecting is
the mere "potentiality of human life." See, e. g., Roe,
supra , at 162; Planned Parenthood of Central Mo. v.
Danforth , 428 U.
S. 52 , 61 (1976); Colautti v. Franklin , 439 U. S. 379 , 386
(1979); Akron v. Akron Center for Reproductive Health,
Inc. , 462 U. S.
416 , 428 (1983) (Akron I); Planned Parenthood
Assn. of Kansas City, Mo., Inc. v. Ashcroft , 462 U. S. 476 , 482
(1983). The whole argument of abortion opponents is that what the
Court calls the fetus and what others call the unborn child is
a human life. Thus, whatever answer Roe came up with
after conducting its "balancing" is bound to be wrong, unless it is
correct that the human fetus is in some critical sense merely
potentially human. There is of course no way to determine that as a
legal matter; it is in fact a value judgment. Some societies have
considered newborn children not yet human, or the incompetent
elderly no longer so.

															The authors of the joint opinion, of course, do not squarely
contend that Roe v. Wade was a correct application of "reasoned judgment"; merely that it must be
followed, because of stare decisis. Ante , at 853, 861,
871. But in their exhaustive discussion of all the factors that go
into the determi- [983] nation of when stare decisis should be observed and
when disregarded, they never mention "how wrong was the decision on
its face?" Surely, if "[t]he Court's power lies . . . in
its legitimacy, a product of substance and perception," ante , at 865, the "substance" part of the equation demands
that plain error be acknowledged and eliminated. Roe was
plainly wrong-even on the Court's methodology of "reasoned
judgment," and even more so (of course) if the proper criteria of
text and tradition are applied.

															The emptiness of the "reasoned judgment" that produced Roe is displayed in plain view by the fact that, after
more than 19 years of effort by some of the brightest (and most
determined) legal minds in the country, after more than 10 cases
upholding abortion rights in this Court, and after dozens upon
dozens of amicus briefs submitted in these and other
cases, the best the Court can do to explain how it is that the word
"liberty" must be thought to include the right to destroy
human fetuses is to rattle off a collection of adjectives that
simply decorate a value judgment and conceal a political choice.
The right to abort, we are told, inheres in "liberty" because it is
among "a person's most basic decisions," ante , at 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).[ Footnote 2 ] But it is [984] obvious to anyone applying "reasoned judgment" that the same
adjectives can be applied to many forms of conduct that this Court
(including one of the Justices in today's majority, see Bowers
v. Hardwick , 478
U. S. 186 (1986)) has held are not entitled to
constitutional protection-because, like abortion, they are forms of
conduct that have long been criminalized in American society. Those
adjectives might be applied, for example, to homosexual sodomy,
polygamy, adult incest, and suicide, all of which are equally
"intimate" and "deep[ly] personal" decisions involving "personal
autonomy and bodily integrity," and all of which can
constitutionally be proscribed because it is our unquestionable
constitutional tradition that they are proscribable. It is not
reasoned judgment that supports the Court's decision; only personal
predilection. Justice Curtis's warning is as timely today as it was
135 years ago: "[W]hen a strict interpretation of the Constitution, according
to the fixed rules which govern the interpretation of laws, is
abandoned, and the theoretical opinions of individuals are allowed
to control its meaning, we have no longer a Constitution; we are
under the government of individual men, who for the time being have
power to declare what the Constitution is, according to their own
views of what it ought to mean." Dred Scott "Liberty finds no refuge in a jurisprudence of
doubt." Ante , at 844. One might have feared to encounter this august and sonorous
phrase in an opinion defending the real Roe v. Wade ,
rather than the revised version fabricated today by the au- [985] thors of the joint opinion. The shortcomings of Roe did
not include lack of clarity: Virtually all regulation of abortion
before the third trimester was invalid. But to come across this
phrase in the joint opinion--which calls upon federal district
judges to apply an "undue burden" standard as doubtful in
application as it is unprincipled in origin--is really more than
one should have to bear.

															The joint opinion frankly concedes that the amorphous concept of
"undue burden" has been inconsistently applied by the Members of
this Court in the few brief years since that "test" was first
explicitly propounded by JUSTICE O'CONNOR in her dissent in Akron I , 462
U. S. 416 (1983). See ante , at 876.

															[ Footnote 3 ]
Because the three Justices now wish to "set forth a standard of
general application," the joint opinion announces that "it is
important to clarify what is meant by an undue burden." Ibid. I certainly agree with that, but I do not agree that
the joint opinion succeeds in the announced endeavor. To the
contrary, its efforts at clarifica- [986] tion make clear only that the standard is inherently manipulable
and will prove hopelessly unworkable in practice.

															The joint opinion explains that a state regulation imposes an
"undue burden" if it "has the purpose or effect of placing a
substantial obstacle in the path of a woman seeking an abortion of
a nonviable fetus." Ante , at 877; see also ante ,
at 877-879. An obstacle is "substantial," we are told, if it is
"calculated[,] [not] to inform the woman's free choice, [but to]
hinder it." Ante , at 877.[ Footnote 4 ]
This latter statement cannot [987] possibly mean what it says. Any regulation of abortion
that is intended to advance what the joint opinion concedes is the
State's "substantial" interest in protecting unborn life will be
"calculated [to] hinder" a decision to have an abortion. It thus
seems more accurate to say that the joint opinion would uphold
abortion regulations only if they do not unduly hinder the
woman's decision. That, of course, brings us right back to square
one: Defining an "undue burden" as an "undue hindrance" (or a
"substantial obstacle") hardly "clarifies" the test. Consciously or
not, the joint opinion's verbal shell game will conceal raw
judicial policy choices concerning what is "appropriate" abortion
legislation.

															The ultimately standardless nature of the "undue burden" inquiry
is a reflection of the underlying fact that the concept has no
principled or coherent legal basis. As THE CHIEF JUSTICE points
out, Roe 's strict-scrutiny standard "at least had a
recognized basis in constitutional law at the time Roe was
decided," ante , at 964, while "[t]he same cannot be said
for the 'undue burden' standard, which is created largely out of
whole cloth by the authors of the joint opinion," ibid. The joint opinion is flatly wrong in asserting that "our
jurisprudence relating to all liberties save perhaps abortion has
recognized" the permissibility of laws that do not impose an "undue
burden." Ante , at 873. It argues that the abortion right
is similar to other rights in that a law "not designed to strike at
the right itself, [but which] has the incidental effect of making
it more difficult or more expensive to [exercise the right,]" is
not invalid. Ante , at 874. I agree, indeed I have [988] forcefully urged, that a law of general applicability which
places only an incidental burden on a fundamental right does not
infringe that right, see R. A. V. v. St. Paul , 505 U. S. 377 , 389-390
(1992); Employment Div., Dept. of Human Resources of Ore. v.
Smith , 494 U. S.
872 , 878-882 (1990), but that principle does not establish the
quite different (and quite dangerous) proposition that a law which directly regulates a fundamental right will not be found
to violate the Constitution unless it imposes an "undue burden." It
is that, of course, which is at issue here: Pennsylvania has consciously and directly regulated conduct that our cases
have held is constitutionally protected. The appropriate analogy,
therefore, is that of a state law requiring purchasers of religious
books to endure a 24-hour waiting period, or to pay a nominal
additional tax of 1¢. The joint opinion cannot possibly be correct
in suggesting that we would uphold such legislation on the ground
that it does not impose a "substantial obstacle" to the exercise of
First Amendment rights. The "undue burden" standard is not at all
the generally applicable principle the joint opinion pretends it to
be; rather, it is a unique concept created specially for these
cases, to preserve some judicial foothold in this ill-gotten
territory. In claiming otherwise, the three Justices show their
willingness to place all constitutional rights at risk in an effort
to preserve what they deem the "central holding in Roe."
Ante , at 873.

															The rootless nature of the "undue burden" standard, a phrase
plucked out of context from our earlier abortion decisions, see n.
3, supra , is further reflected in the fact that the joint
opinion finds it necessary expressly to repudiate the more narrow
formulations used in JUSTICE O'CONNOR'S earlier opinions. Ante , at 876-877. Those opinions stated that a statute
imposes an "undue burden" if it imposes "absolute obstacles or severe limitations on the abortion decision," Akron I , 462 U. S., at 464 (dissenting opinion) (emphasis
added); see also Thornburgh v. American College of
Obstetricians and Gynecologists , 476 U. S. 747 ,828 (1986)
(dissent- [989] ing opinion). Those strong adjectives are conspicuously missing
from the joint opinion, whose authors have for some unexplained
reason now determined that a burden is "undue" if it merely imposes
a "substantial" obstacle to abortion decisions. See, e. g.,
ante , at 895, 901. JUSTICE O'CONNOR has also abandoned (again
without explanation) the view she expressed in Planned
Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft , 462 U. S. 476 (1983) (dissenting opinion), that a medical regulation which
imposes an "undue burden" could nevertheless be upheld if it
"reasonably relate[s] to the preservation and protection of
maternal health," id. , at 505 (citation and internal
quotation marks omitted). In today's version, even health measures
will be upheld only "if they do not constitute an undue
burden," ante , at 878 (emphasis added). Gone too is JUSTICE
O'CONNOR'S statement that "the State possesses compelling interests in the protection of potential human life . . .
throughout pregnancy," Akron I , supra , at 461
(dissenting opinion) (emphasis added); see also Ashcroft,
supra , at 505 (O'CONNOR, J., concurring in judgment in part
and dissenting in part); Thornburgh, supra , at 828
(O'CONNOR, J., dissenting); instead, the State's interest in unborn
human life is stealthily downgraded to a merely "substantial" or
"profound" interest, ante , at 876, 878. (That had to be
done, of course, since designating the interest as "compelling"
throughout pregnancy would have been, shall we say, a "substantial
obstacle" to the joint opinion's determined effort to reaffirm what
it views as the "central holding" of Roe. See Akron
I , 462 U. S., at 420, n. 1.) And "viability" is no longer the
"arbitrary" dividing line previously decried by JUSTICE O'CONNOR in Akron I , id. , at 461; the Court now announces
that "the attainment of viability may continue to serve as the
critical fact," ante , at 860.[ Footnote
5 ] It is difficult to [990] maintain the illusion that we are interpreting a Constitution
rather than inventing one, when we amend its provisions so
breezily.

															Because the portion of the joint opinion adopting and describing
the undue burden test provides no more useful guidance than the
empty phrases discussed above, one must turn to the 23 pages
applying that standard to the present facts for further guidance.
In evaluating Pennsylvania's abortion law, the joint opinion relies
extensively on the factual findings of the District Court, and
repeatedly qualifies its conclusions by noting that they are
contingent upon the record developed in these cases. Thus, the
joint opinion would uphold the 24-hour waiting period contained in
the Pennsylvania statute's informed consent provision, 18 Pa. Cons.
Stat. § 3205 (1990), because "the record evidence shows that in the
vast majority of cases, a 24-hour delay does not create any
appreciable health risk," ante , at 885. The three Justices
therefore conclude that "on the record before us, . . .
we are not convinced that the 24-hour waiting period constitutes an
undue burden." Ante , at 887. The requirement that a doctor
provide the information pertinent to informed consent would also be
upheld because "there is no evidence on this record that [this
requirement] would amount in practical terms to a substantial
obstacle to a woman seeking an abortion." Ante , at 884.
Similarly, the joint opinion would uphold the reporting
requirements of the Act, §§ 3207, 3214, because "there is no
. . . showing on the record before us" that these
requirements constitute a "substantial obstacle" [991] to abortion decisions. Ante , at 901. But at the same
time the opinion pointedly observes that these reporting
requirements may increase the costs of abortions and that "at some
point [that fact] could become a substantial obstacle." Ibid. Most significantly, the joint opinion's conclusion
that the spousal notice requirement of the Act, see § 3209, imposes
an "undue burden" is based in large measure on the District Court's
"detailed findings of fact," which the joint opinion sets out at
great length, ante , at 888-891.

															I do not, of course, have any objection to the notion that, in
applying legal principles, one should rely only upon the facts that
are contained in the record or that are properly subject to
judicial notice.[ Footnote 6 ] But what is
remarkable about the joint opinion's fact-intensive analysis is
that it does not result in any measurable clarification of the
"undue burden" standard. Rather, the approach of the joint opinion
is, for the most part, simply to highlight certain facts in the
record that apparently strike the three Justices as particularly
significant in establishing (or refuting) the existence of an undue
burden; after describing these facts, the opinion then simply
announces that the provision either does or does not impose a
"substantial obstacle" or an "undue burden." See, e. g. , ante , at 880,884-885,887,893-894,895, 901. We do not know
whether the same conclusions could have been reached on a different
record, or in what respects the record would have had to differ
before an opposite conclusion would have been [992] appropriate. The inherently standardless nature of this inquiry
invites the district judge to give effect to his personal
preferences about abortion. By finding and relying upon the right
facts, he can invalidate, it would seem, almost any abortion
restriction that strikes him as "undue"-subject, of course, to the
possibility of being reversed by a court of appeals or Supreme
Court that is as unconstrained in reviewing his decision as he was
in making it.

															To the extent I can discern any meaningful content in
the "undue burden" standard as applied in the joint opinion, it
appears to be that a State may not regulate abortion in such a way
as to reduce significantly its incidence. The joint opinion
repeatedly emphasizes that an important factor in the "undue
burden" analysis is whether the regulation "prevent[s] a
significant number of women from obtaining an abortion," ante , at 893; whether a "significant number of women
. . . are likely to be deterred from procuring an
abortion," ante , at 894; and whether the regulation often
"deters" women from seeking abortions, ante , at 897. We
are not told, however, what forms of "deterrence" are impermissible
or what degree of success in deterrence is too much to be
tolerated. If, for example, a State required a woman to read a
pamphlet describing, with illustrations, the facts of fetal
development before she could obtain an abortion, the effect of such
legislation might be to "deter" a "significant number of women"
from procuring abortions, thereby seemingly allowing a district
judge to invalidate it as an undue burden. Thus, despite flowery
rhetoric about the State's "substantial" and "profound" interest in
"potential human life," and criticism of Roe for
undervaluing that interest, the joint opinion permits the State to
pursue that interest only so long as it is not too successful. As
JUSTICE BLACKMUN recognizes (with evident hope), ante , at
926, the "undue burden" standard may ultimately require the
invalidation of each provision upheld today if it can be shown, on
a better record, that the State is too effectively "express[ing] a
pref- [993] erence for childbirth over abortion," ante , at 883.
Reason finds no refuge in this jurisprudence of confusion. "While we appreciate the weight of the arguments
. . . that Roe should be overruled, the
reservations any of us may have in reaffirming the central holding
of Roe are outweighed by the explication of individual
liberty we have given combined with the force of stare
decisis." Ante , at 853. The Court's reliance upon stare decisis can best be
described as contrived. It insists upon the necessity of adhering
not to all of Roe , but only to what it calls the "central
holding." It seems to me that stare decisis ought to be
applied even to the doctrine of stare decisis , and I
confess never to have heard of this new,
keep-what-you-want-and-throwaway-the-rest version. I wonder
whether, as applied to Marbury v. Madison , 1 Cranch 137
(1803), for example, the new version of stare decisis would be satisfied if we allowed courts to review the
constitutionality of only those statutes that (like the one in Marbury) pertain to the jurisdiction of the courts.

															I am certainly not in a good position to dispute that the Court has saved the "central holding" of Roe , since to
do that effectively I would have to know what the Court has saved,
which in turn would require me to understand (as I do not) what the
"undue burden" test means. I must confess, however, that I have
always thought, and I think a lot of other people have always
thought, that the arbitrary trimester framework, which the Court
today discards, was quite as central to Roe as the
arbitrary viability test, which the Court today retains. It seems
particularly ungrateful to carve the trimester framework out of the
core of Roe , since its very rigidity (in sharp contrast to
the utter indeterminability of the "undue burden" test) is probably
the only reason the Court is able to say, in urging stare
decisis , that Roe "has in no sense proven
'unworkable,'" ante , at 855. I suppose the [994] Court is entitled to call a "central holding" whatever it wants
to call a "central holding"-which is, come to think of it, perhaps
one of the difficulties with this modified version of stare
decisis. I thought I might note, however, that the following
portions of Roe have not been saved: Under Roe , requiring that a woman seeking an abortion
be provided truthful information about abortion before giving
informed written consent is unconstitutional, if the information is
designed to influence her choice. Thornburgh , 476 U. S.,
at 759-765; Akron I , 462 U. S., at 442-445. Under the
joint opinion's "undue burden" regime (as applied today, at least)
such a requirement is constitutional. Ante , at
881-885. Under Roe , requiring that information be provided by a
doctor, rather than by nonphysician counselors, is
unconstitutional. Akron I, supra , at 446-449. Under the
"undue burden" regime (as applied today, at least) it is not. Ante , at 884-885. Under Roe , requiring a 24-hour waiting period between
the time the woman gives her informed consent and the time of the
abortion is unconstitutional. Akron I, supra , at 449451.
Under the "undue burden" regime (as applied today, at least) it is
not. Ante , at 885-887. Under Roe , requiring detailed reports that include
demographic data about each woman who seeks an abortion and various
information about each abortion is unconstitutional. Thornburgh, supra , at 765-768. Under the "undue burden"
regime (as applied today, at least) it generally is not. Ante , at 900-901. "Where, in the performance of its judicial duties, the
Court decides a case in such a way as to resolve the sort of
intensely divisive controversy reflected in Roe
. . . , its decision has a dimension that the
resolution of the normal case does not carry. It is the dimension
present whenever the Court's interpretation of the Constitution
calls the contending sides of a [995] national controversy to end their national division by
accepting a common mandate rooted in the Constitution." Ante , at 866-867. The Court's description of the place of Roe in the
social history of the United States is unrecognizable. Not only did Roe not, as the Court suggests, resolve the
deeply divisive issue of abortion; it did more than anything else
to nourish it, by elevating it to the national level where it is
infinitely more difficult to resolve. National politics were not
plagued by abortion protests, national abortion lobbying, or
abortion marches on Congress before Roe v. Wade was
decided. Profound disagreement existed among our citizens over the
issue--as it does over other issues, such as the death penalty--but
that disagreement was being worked out at the state level. As with
many other issues, the division of sentiment within each State was
not as closely balanced as it was among the population of the
Nation as a whole, meaning not only that more people would be
satisfied with the results of state-by-state resolution, but also
that those results would be more stable. Pre- Roe ,
moreover, political compromise was possible. Roe 's mandate for abortion on demand destroyed the
compromises of the past, rendered compromise impossible for the
future, and required the entire issue to be resolved uniformly, at
the national level. At the same time, Roe created a vast
new class of abortion consumers and abortion proponents by
eliminating the moral opprobrium that had attached to the act. ("If
the Constitution guarantees abortion, how can it be
bad?"--not an accurate line of thought, but a natural one.) Many
favor all of those developments, and it is not for me to say that
they are wrong. But to portray Roe as the statesmanlike
"settlement" of a divisive issue, a jurisprudential Peace of
Westphalia that is worth preserving, is nothing less than
Orwellian. Roe fanned into life an issue that has inflamed
our national politics in general, and has obscured with its smoke
the selection of Justices to this Court [996] in particular, ever since. And by keeping us in the
abortion-umpiring business, it is the perpetuation of that
disruption, rather than of any Pax Roeana , that the
Court's new majority decrees. "[T]o overrule under fire . . . would subvert
the Court's legitimacy . . . . " . . . To all those who will be
. . . tested by following, the Court implicitly
undertakes to remain steadfast . . . . The promise
of constancy, once given, binds its maker for as long as the power
to stand by the decision survives and . . . the
commitment [is not] obsolete . . . . "[The American people's] belief in themselves as
. . . a people [who aspire to live according to the rule
of law] is not readily separable from their understanding of the
Court invested with the authority to decide their constitutional
cases and speak before all others for their constitutional ideals.
If the Court's legitimacy should be undermined, then, so would the
country be in its very ability to see itself through its
constitutional ideals." Ante , at 867-868. The Imperial Judiciary lives. It is instructive to compare this
Nietzschean vision of us unelected, life-tenured judges--leading a
Yolk who will be "tested by following," and whose very "belief in
themselves" is mystically bound up in their "understanding" of a
Court that "speak[s] before all others for their constitutional
ideals"-with the somewhat more modest role envisioned for these
lawyers by the Founders. "The judiciary . . . has . . . no direction
either of the strength or of the wealth of the society, and can
take no active resolution whatever. It may truly be said to have
neither Force nor Will, but merely judgment . . . .
" The Federalist No. 78, pp. 393-394 (G. Wills ed. 1982). Or, again, to compare this ecstasy of a Supreme Court in which
there is, especially on controversial matters, no [997] shadow of change or hint of alteration ("There is a limit to the
amount of error that can plausibly be imputed to prior Courts," ante , at 866), with the more democratic views of a more
humble man: "[T]he candid citizen must confess that if the policy of the
Government upon vital questions affecting the whole people is to be
irrevocably fixed by decisions of the Supreme Court,
. . . the people will have ceased to be their own rulers,
having to that extent practically resigned their Government into
the hands of that eminent tribunal." A. Lincoln, First Inaugural
Address (Mar. 4, 1861), reprinted in Inaugural Addresses of the
Presidents of the United States, S. Doc. No. 101-10, p. 139
(1989). It is particularly difficult, in the circumstances of the
present decision, to sit still for the Court's lengthy lecture upon
the virtues of "constancy," ante , at 868, of "remain[ing]
steadfast," ibid. , and adhering to "principle," ante,
passim. Among the five Justices who purportedly adhere to Roe , at most three agree upon the principle that
constitutes adherence (the joint opinion's "undue burden"
standard)-and that principle is inconsistent with Roe. See
410 U. S., at 154-156.[ Footnote 7 ] To make
matters worse, two of the three, in order thus to remain steadfast,
had to abandon previously stated positions. See n. 4, supra; see supra , at 988-990. It is beyond me how
the Court expects these accommodations to be accepted "as grounded
truly in principle, not as compromises with social and political
pressures having, as such, no bearing on the principled choices
that the Court is obliged to make." Ante , at 865-866. The
only principle the Court "adheres" [998] to, it seems to me, is the principle that the Court must be seen
as standing by Roe. That is not a principle of law (which
is what I thought the Court was talking about), but a principle of Realpolitik--and a wrong one at that.

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

															But whether it would "subvert the Court's legitimacy" or not,
the notion that we would decide a case differently from the way we
otherwise would have in order to show that we can stand firm
against public disapproval is frightening. It is a bad enough idea,
even in the head of someone like me, who believes that the text of
the Constitution, and our traditions, say what they say and there
is no fiddling with them. But when it is in the mind of a Court
that believes the Con- [999] stitution has an evolving meaning, see ante , at 848;
that the Ninth Amendment's reference to "othe[r]" rights is not a
disclaimer, but a charter for action, ibid.; and that the
function of this Court is to "speak before all others for [the
people's] constitutional ideals" unrestrained by meaningful text or
tradition-then the notion that the Court must adhere to a decision
for as long as the decision faces "great opposition" and the Court
is "under fire" acquires a character of almost czarist arrogance.
We are offended by these marchers who descend upon us, every year
on the anniversary of Roe , to protest our saying that the
Constitution requires what our society has never thought the
Constitution requires. These people who refuse to be "tested by
following" must be taught a lesson. We have no Cossacks, but at
least we can stubbornly refuse to abandon an erroneous opinion that
we might otherwise change-to show how little they intimidate
us.

															Of course, as THE CHIEF JUSTICE points out, we have been
subjected to what the Court calls "'political pressure'" by both sides of this issue. Ante , at 963. Maybe
today's decision not to overrule Roe will be seen
as buckling to pressure from that direction. Instead of
engaging in the hopeless task of predicting public perception-a job
not for lawyers but for political campaign managers-the Justices
should do what is legally right by asking two questions:
(1) Was Roe correctly decided? (2) Has Roe succeeded in producing a settled body of law? If the answer to both
questions is no, Roe should undoubtedly be overruled.

															In truth, I am as distressed as the Court is-and expressed my
distress several years ago, see Webster , 492 U. S., at
535-about the "political pressure" directed to the Court: the
marches, the mail, the protests aimed at inducing us to change our
opinions. How upsetting it is, that so many of our citizens (good
people, not lawless ones, on both sides of this abortion issue, and
on various sides of other issues as well) think that we Justices
should properly take into ac- [1000] count their views, as though we were engaged not in ascertaining
an objective law but in determining some kind of social consensus.
The Court would profit, I think, from giving less attention to the fact of this distressing phenomenon, and more attention to
the cause of it. That cause permeates today's opinion: a
new mode of constitutional adjudication that relies not upon text
and traditional practice to determine the law, but upon what the
Court calls "reasoned judgment," ante , at 849, which turns
out to be nothing but philosophical predilection and moral
intuition. All manner of "liberties," the Court tells us, inhere in
the Constitution and are enforceable by this Court--not just those
mentioned in the text or established in the traditions of our
society. Ante , at 847-849. Why even the Ninth
Amendment--which says only that "[t]he enumeration in the
Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people"--is, despite our contrary
understanding for almost 200 years, a literally boundless source of
additional, unnamed, unhinted-at "rights," definable and
enforceable by us, through "reasoned judgment." Ante , at
848-849.

															What makes all this relevant to the bothersome application of
"political pressure" against the Court are the twin facts that the
American people love democracy and the American people are not
fools. As long as this Court thought (and the people thought) that
we Justices were doing essentially lawyers' work up here--reading
text and discerning our society's traditional understanding of that
text--the public pretty much left us alone. Texts and traditions
are facts to study, not convictions to demonstrate about. But if in
reality our process of constitutional adjudication consists
primarily of making value judgments; if we can ignore a
long and clear tradition clarifying an ambiguous text, as we did,
for example, five days ago in declaring unconstitutional
invocations and benedictions at public high school graduation
ceremonies, Lee v. Weisman , 505 U. S. 577 (1992); if,
as I say, our pronouncement of constitutional law rests primarily
on value [1001] judgments, then a free and intelligent people's attitude towards
us can be expected to be (ought to be) quite different.
The people know that their value judgments are quite as good as
those taught in any law school--maybe better. If, indeed, the
"liberties" protected by the Constitution are, as the Court says,
undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours. Not only that, but confirmation
hearings for new Justices should deteriorate into
question-and-answer sessions in which Senators go through a list of
their constituents' most favored and most disfavored alleged
constitutional rights, and seek the nominee's commitment to support
or oppose them. Value judgments, after all, should be voted on, not
dictated; and if our Constitution has somehow accidently committed
them to the Supreme Court, at least we can have a sort of
plebiscite each time a new nominee to that body is put forward.
JUSTICE BLACKMUN not only regards this prospect with equanimity, he
solicits it. Ante , at 943.

															* * *

															There is a poignant aspect to today's opinion. Its length, and
what might be called its epic tone, suggest that its authors
believe they are bringing to an end a troublesome era in the
history of our Nation and of our Court. "It is the dimension" of
authority, they say, to "cal[l] the contending sides of national
controversy to end their national division by accepting a common
mandate rooted in the Constitution." Ante , at 867.

															There comes vividly to mind a portrait by Emanuel Leutze that
hangs in the Harvard Law School: Roger Brooke Taney, painted in
1859, the 82d year of his life, the 24th of his Chief Justiceship,
the second after his opinion in Dred Scott. He is all in
black, sitting in a shadowed red armchair, left hand resting upon a
pad of paper in his lap, right hand hanging limply, almost
lifelessly, beside the inner arm of the chair. He sits facing the
viewer and staring straight out. There [1002] seems to be on his face, and in his deep-set eyes, an expression
of profound sadness and disillusionment. Perhaps he always looked
that way, even when dwelling upon the happiest of thoughts. But
those of us who know how the lustre of his great Chief Justiceship
came to be eclipsed by Dred Scott cannot help believing
that he had that case--its already apparent consequences for the
Court and its soon-to-be-played-out consequences for the
Nation--burning on his mind. I expect that two years earlier he,
too, had thought himself "call[ing] the contending sides of
national controversy to end their national division by accepting a
common mandate rooted in the Constitution."

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

															We should get out of this area, where we have no right to be,
and where we do neither ourselves nor the country any good by
remaining. Notes [ Footnote 1 ]

															It is sometimes useful to view the issue of stare
decisis from a historical perspective. In the last 19 years,
15 Justices have confronted the basic issue presented in Roe v.
Wade , 410 U. S.
113 (1973). Of those, 11 have voted as the majority does today:
Chief Justice Burger, Justices Douglas, Brennan, Stewart, Marshall,
and Powell, and JUSTICES BLACKMUN, O'CONNOR, KENNEDY, SOUTER, and
myself. Only four-all of whom happen to be on the Court today-have
reached the opposite conclusion.

															[ Footnote 2 ]

															Professor Dworkin has made this comment on the issue:

															"The suggestion that states are free to declare a fetus a person
. . . . assumes that a state can curtail some
persons' constitutional rights by adding new persons to the
constitutional population. The constitutional rights of one citizen
are of course very much affected by who or what else also has
constitutional rights, because the rights of others may compete or
conflict with his. So any power to increase the constitutional
population by unilateral decision would be, in effect, a power to
decrease rights the national Constitution grants to others.

															" . . . If a state could declare trees to be persons
with a constitutional right to life, it could prohibit publishing
newspapers or books in spite of the First Amendment's guarantee of
free speech, which could not be understood as a license to kill
. . . . Once we understand that the suggestion we
are considering has that implication, we must reject it. If a fetus
is not part of the constitutional population, under the national
constitutional arrangement, then states have no power to overrule
that national arrangement by themselves declaring that fetuses have
rights competitive with the constitutional rights of pregnant
women." Unenumerated Rights: Whether and How Roe Should be
Overruled, 59 U. Chi. L. Rev. 381, 400-401 (1992).

															[ Footnote 3 ]

															The state interest in protecting potential life may be compared
to the state interest in protecting those who seek to immigrate to
this country. A contemporary example is provided by the Haitians
who have risked the perils of the sea in a desperate attempt to
become "persons" protected by our laws. Humanitarian and practical
concerns would support a state policy allowing those persons
unrestricted entry; countervailing interests in population control
support a policy of limiting the entry of these potential citizens.
While the state interest in population control might be sufficient
to justify strict enforcement of the immigration laws, that
interest would not be sufficient to overcome a woman's liberty
interest. Thus, a state interest in population control could not
justify a state-imposed limit on family size or, for that matter,
state-mandated abortions.

															[ Footnote 4 ]

															As we noted in that opinion, the State's "legitimate interest in
protecting minor women from their own immaturity" distinguished
that case from Akron v. Akron Center for Reproductive Health,
Inc. , 462 U. S.
416 (1983), which involved "a provision that required that
mature women, capable of consenting to an abortion, wait 24 hours
after giving consent before undergoing an abortion." Hodgson , 497 U. S., at 449, n. 35.

															[ Footnote 5 ]

															The joint opinion's reliance on the indirect effects of the
regulation of constitutionally protected activity, see ante , at 873-874, is misplaced; what matters is not only
the effect of a regulation but also the reason for the regulation.
As I explained in Hodgson: "In cases involving abortion, as in cases involving the right to
travel or the right to marry, the identification of the
constitutionally protected interest is merely the beginning of the
analysis. State regulation of travel and of marriage is obviously
permissible even though a State may not categorically exclude
nonresidents from its borders, Shapiro v. Thompson , 394 U. S. 618 ,
631 (1969), or deny prisoners the right to marry, Turner v.
Safley , 482 U. S.
78 , 94-99 (1987). But the regulation of constitutionally
protected decisions, such as where a person shall reside or whom he
or she shall marry, must be predicated on legitimate state concerns
other than disagreement with the choice the individual has made.
Cf. Turner v. Safley, supra; Loving v. Virginia , 388 U. S. 1 , 12 (1967). 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. See, e. g., Maher v. Roe , 432 U. S. 464 (1977); cf. Webster v. Reproductive Health Services , 492 U. S. 490 ,
508-511 (1989); id. , at 523-524 (O'CONNOR, J., concurring
in part and concurring in judgment). A State's value judgment
favoring childbirth over abortion may provide adequate support for
decisions involving such allocation of public funds, but not for
simply substituting a state decision for an individual decision
that a woman has a right to make for herself. Otherwise, the
interest in liberty protected by the Due Process Clause would be a
nullity. A state policy favoring childbirth over abortion is not in
itself a sufficient justification for overriding the woman's
decision or for placing 'obstacles-absolute or otherwise-in the
pregnant woman's path to an abortion.''' 497 U. S., at 435.

															[ Footnote 6 ]

															The meaning of any legal standard can only be understood by
reviewing the actual cases in which it is applied. For that reason,
I discount both JUSTICE SCALIA'S comments on past descriptions of
the standard, see post , at 988-990 (opinion concurring in
judgment in part and dissenting in part), and the attempt to give
it crystal clarity in the joint opinion. The several opinions
supporting the judgment in Griswold v. Connecticut, 381 U.
S. 479 (1965), are less illuminating than the central holding of
the case, which appears to have passed the test of time. The future
may also demonstrate that a standard that analyzes both the
severity of a regulatory burden and the legitimacy of its
justification will provide a fully adequate framework for the
review of abortion legislation even if the contours of the standard
are not authoritatively articulated in any single opinion.

															[ Footnote 7 ]

															U. S. Dept. of Commerce, Bureau of the Census, Statistical
Abstract of the United States 71 (111th ed. 1991).

															[ Footnote 8 ]

															Although I agree that a parental-consent requirement (with the
appropriate bypass) is constitutional, I do not join Part V -D of
the joint opinion because its approval of Pennsylvania's informed
parental-consent requirement is based on the reasons given in Part
V-B, with which I disagree.

															[ Footnote 1 ]

															As I shall explain, the joint opinion and I disagree on the
appropriate standard of review for abortion regulations. I do
agree, however, that the reasons advanced by the joint opinion
suffice to invalidate the spousal notification requirement under a
strict scrutiny standard.

															[ Footnote 2 ]

															I also join the Court's decision to uphold the medical emergency
provision. As the Court notes, its interpretation is consistent
with the essential holding of Roe that "forbids a State to
interfere with a woman's choice to undergo an abortion procedure if
continuing her pregnancy would constitute a threat to her health." Ante , at 880. As is apparent in my analysis below,
however, this exception does not render constitutional the
provisions which I conclude do not survive strict scrutiny.

															[ Footnote 3 ]

															As the joint opinion acknowledges, ante , at 857, this
Court has recognized the vital liberty interest of persons in
refusing unwanted medical treatment. Cruzan v. Director, Mo.
Dept. of Health , 497 U. S. 261 (1990).
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.

															[ Footnote 4 ]

															A growing number of commentators are recognizing this point.
See, e. g. , L. Tribe, American Constitutional Law § 15-10,
pp. 1353-1359 (2d ed. 1988); Siegel, Reasoning from the Body: A
Historical Perspective on Abortion Regulation and Questions of
Equal Protection, 44 Stan. L. Rev. 261, 350-380 (1992); Sunstein,
Neutrality in Constitutional Law (With Special Reference to
Pornography, Abortion, and Surrogacy), 92 Colum. L. Rev. 1, 31-44
(1992); cf. Rubenfeld, The Right of Privacy, 102 Harv. L. Rev. 737,
788-791 (1989) (similar analysis under the rubric of privacy);
MacKinnon, Reflections on Sex Equality Under Law, 100 Yale L. J.
1281, 1308-1324 (1991).

															[ Footnote 5 ]

															To say that restrictions on a right are subject to strict
scrutiny is not to say that the right is absolute. 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. See, e. g. , Planned Parenthood of Central
Mo. v. Danforth , 428 U. S. 52 , 65-67, 79-81
(1976) (upholding requirements of a woman's written consent and
recordkeeping). But the Court today reaffirms the essential
principle of Roe that a woman has the right "to choose to
have an abortion before viability and to obtain it without undue
interference from the State." Ante , at 846. Under Roe , any more than de minimis interference is
undue.

															[ Footnote 6 ]

															The joint opinion agrees with Roe 's conclusion that
viability occurs at 23 or 24 weeks at the earliest. Compare ante , at 860, with Roe v. Wade , 410 U. S. 113 , 160
(1973).

															[ Footnote 7 ]

															While I do not agree with the joint opinion's conclusion that
these provisions should be upheld, the joint opinion has remained
faithful to principles this Court previously has announced in
examining counseling provisions. For example, the joint opinion
concludes that the "information the State requires to be made
available to the woman" must be "truthful and not misleading." Ante , at 882. 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. 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. This, for
example, would appear to preclude a State from requiring a woman to
view graphic literature or films detailing the performance of an
abortion operation. Just as a visual preview of an operation to
remove an appendix plays no part in a physician's securing informed
consent to an appendectomy, a preview of scenes appurtenant to any
major medical intrusion into the human body does not constructively
inform the decision of a woman of the State's interest in the
preservation of the woman's health or demonstrate the State's
"profound respect for the life of the unborn." Ante , at
877.

															[ Footnote 8 ]

															The Court's decision in Hodgson v. Minnesota , 497 U. S. 417 (1990),
validating a 48-hour waiting period for minors seeking an abortion
to permit parental involvement does not alter this conclusion. Here
the 24-hour delay is imposed on an adult woman. See id. , at 449-450, n. 35; Ohio v. Akron Center for
Reproductive Health, Inc. , 497 U. S. 502 (1990).
Moreover, the statute in Hodgson did not require any delay
once the minor obtained the affirmative consent of either a parent
or the court.

															[ Footnote 9 ]

															Because this information is so widely known, I am confident that
a developed record can be made to show that the 24-hour delay, "in
a large fraction of the cases in which [the restriction] is
relevant, . . . will operate as a substantial obstacle to
a woman's choice to undergo an abortion." Ante , at
895.

															[ Footnote 10 ]

															The judicial-bypass provision does not cure this violation. Hodgson is distinguishable, since these cases involve more
than parental involvement or approval-rather, the Pennsylvania law
requires that the parent receive information designed to discourage
abortion in a face-to-face meeting with the physician. The bypass
procedure cannot ensure that the parent would obtain the
information, since in many instances, the parent would not even
attend the hearing. 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.

															[ Footnote 11 ]

															Obviously, I do not share THE CHIEF JUSTICE'S views of
homosexuality as sexual deviance. See Bowers , 478 U. S.,
at 202-203, n. 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 999-1000. Putting aside
the fact that what he advocates is nothing short of an abdication
by the Court of its constitutional responsibilities, JUSTICE SCALIA
is uncharacteristically naive if he thinks that overruling Roe and holding that restrictions on a woman's right to an
abortion are subject only to rational-basis review will enable the
Court henceforth to avoid reviewing abortion-related issues. State
efforts to regulate and prohibit abortion in a post-Roe world undoubtedly would raise a host of distinct and important
constitutional questions meriting review by this Court. 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? What effect would
differences among States in their approaches to abortion have on a
woman's right to engage in interstate travel? Does the First
Amendment permit States that choose not to criminalize abortion to
ban all advertising providing information about where and how to
obtain abortions?

															[ Footnote 1 ]

															Two years after Roe , the West German constitutional
court, by contrast, struck down a law liberalizing access to
abortion on the grounds that life developing within the womb is
constitutionally protected. Judgment of February 25, 1975,
39 BVerfGE 1 (translated in Jonas & Gorby, West German Abortion
Decision: A Contrast to Roe v. Wade , 9 John Marshall J.
Prac. & Proc. 605 (1976)). In 1988, the Canadian Supreme Court
followed reasoning similar to that of Roe in striking down
a law that restricted abortion. Morgentaler v. Queen , 1 S.
C. R. 30, 44 D. L. R. 4th 385 (1988).

															[ Footnote 2 ]

															The joint opinion of JUSTICES O'CONNOR, KENNEDY, and SOUTER
appears to ignore this point in concluding that the spousal notice
provision imposes an undue burden on the abortion decision. Ante , at 887-898. In most instances the notification
requirement operates without difficulty. As the District Court
found, the vast majority of wives seeking abortions notify and
consult with their husbands, and thus suffer no burden as a result
of the provision. 744 F. Supp. 1323, 1360 (ED Pa. 1990). In other
instances where a woman does not want to notify her husband, the
Act provides exceptions. 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. Thus, in these
instances as well, the notification provision imposes no obstacle
to the abortion decision.

															The joint opinion puts to one side these situations where the
regulation imposes no obstacle at all, and instead focuses on the
group of married women who would not otherwise notify their
husbands and who do not qualify for one of the exceptions. Having
narrowed the focus, the joint opinion concludes that in a "large
fraction" of those cases, the notification provision operates as a
substantial obstacle, ante , at 895, and that the provision
is therefore invalid. There are certainly instances where a woman
would prefer not to notify her husband, and yet does not qualify
for an exception. For example, there are the situations of battered
women who fear psychological abuse or injury to their children as a
result of notification; because in these situations the women do
not fear bodily injury, they do not qualify for an exception. And
there are situations where a woman has become pregnant as a result
of an unreported spousal sexual assault; when such an assault is
unreported, no exception is available. But, as the District Court
found, there are also instances where the woman prefers not to
notify her husband for a variety of other reasons. See 744 F.
Supp., at 1360. For example, a woman might desire to obtain an
abortion without her husband's knowledge because of perceived
economic constraints or her husband's previously expressed
opposition to abortion. The joint opinion concentrates on the
situations involving battered women and unreported spousal assault,
and assumes, without any support in the record, that these
instances constitute a "large fraction" of those cases in which
women prefer not to notify their husbands (and do not qualify for
an exception). Ante , at 895. This assumption is not based
on any hard evidence, however. 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. But reliance on such speculation is the necessary
result of adopting the undue burden standard.

															[ Footnote 3 ]

															The definition in use at that time provided as follows: "'Medical emergency.' That condition which, on the basis of the
physician's best clinical judgment, so complicates a pregnancy as
to necessitate the immediate abortion of same to avert the death of
the mother or for which a 24-hour delay will create grave peril of
immediate and irreversible loss of major bodily function." Pa.
Stat. Ann., Tit. 18, § 3203 (Purdon 1983). [ Footnote 1 ]

															The Court's suggestion, ante , at 847-848, that
adherence to tradition would require us to uphold laws against
interracial marriage is entirely wrong. Any tradition in that case
was contradicted by a text-an Equal Protection Clause that
explicitly establishes racial equality as a constitutional value.
See Loving v. Virginia , 388 U. S. 1 , 9 (1967) ("In
the case at bar, . . . we deal with statutes containing
racial classifications, and the fact of equal application does not
immunize the statute from the very heavy burden of justification
which the Fourteenth Amendment has traditionally required of state
statutes drawn according to race"); see also id. , at 13
(Stewart, J., concurring in judgment). The enterprise launched in Roe v. Wade , 410 U. S. 113 (1973), by
contrast, sought to establish-in the teeth of a clear,
contrary tradition-a value found nowhere in the constitutional
text.

															There is, of course, no comparable tradition barring recognition
of a "liberty interest" in carrying one's child to term free from
state efforts to kill it. For that reason, it does not follow that
the Constitution does not protect childbirth simply because it does
not protect abortion. The Court's contention, ante , at
859, that the only way to protect childbirth is to protect abortion
shows the utter bankruptcy of constitutional analysis deprived of
tradition as a validating factor. It drives one to say that the
only way to protect the right to eat is to acknowledge the
constitutional right to starve oneself to death.

															[ Footnote 2 ]

															JUSTICE BLACKMUN'S parade of adjectives is similarly empty:
Abortion is among" 'the most intimate and personal choices,'" ante , at 923; it is a matter "central to personal dignity
and autonomy," ibid.; and it involves "personal decisions
that profoundly affect bodily integrity, identity, and destiny," ante , at 927. JUSTICE STEVENS is not much less conclusory:
The decision to choose abortion is a matter of "the highest privacy
and the most personal nature," ante , at 915; it involves a
"'difficult choice having serious and personal consequences of
major importance to [a woman's] future,'" ante , at 916;
the authority to make this "traumatic and yet empowering
decisio[n]" is "an element of basic human dignity," ibid.; and it is "nothing less than a matter of conscience," ibid. [ Footnote 3 ]

															The joint opinion is clearly wrong in asserting, ante ,
at 874, that "the Court's early abortion cases adhered to" the
"undue burden" standard. The passing use of that phrase in JUSTICE
BLACKMUN'S opinion for the Court in Bellotti v. Baird , 428 U. S. 132 ,
147 (1976) (Bellotti I) , was not by way of setting forth
the standard of unconstitutionality, as JUSTICE O'CONNOR'S
later opinions did, but by way of expressing the conclusion of unconstitutionality. Justice Powell for a
time appeared to employ a variant of "undue burden" analysis in
several nonmajority opinions, see, e. g., Bellotti v.
Baird , 443 U. S.
622 , 647 (1979) (Bellotti II); Carey v. Population Services
International , 431 U. S. 678 , 705 (1977)
(opinion concurring in part and concurring in judgment), but he too
ultimately rejected that standard in his opinion for the Court in Akron v. Akron Center for Reproductive Health, Inc. , 462 U. S. 416 ,
420, n. 1 (1983) (Akron I). The joint opinion's reliance
on Maher v. Roe , 432 U. S. 464 , 473
(1977), and Harris v. McRae , 448 U. S. 297 , 314
(1980), is entirely misplaced, since those cases did not involve
regulation of abortion, but mere refusal to fund it. In any event,
JUSTICE O'CONNOR'S earlier formulations have apparently now proved
unsatisfactory to the three Justices, who-in the name of stare
decisis no less-today find it necessary to devise an entirely
new version of "undue burden" analysis. See ante , at
877-879.

															[ Footnote 4 ]

															4 The joint opinion further asserts that a law imposing an undue
burden on abortion decisions is not a "permissible" means of
serving "legitimate" state interests. Ante , at 877. This
description of the undue burden standard in terms more commonly
associated with the rational-basis test will come as a surprise
even to those who have followed closely our wanderings in this
forsaken wilderness. See, e. g., Akron I, supra , at 463
(O'CONNOR, J., dissenting) ("The 'undue burden' . . .
represents the required threshold inquiry that must be conducted
before this Court can require a State to justify its legislative
actions under the exacting 'compelling state interest' standard");
see also Hodgson v. Minnesota , 497 U. S. 417 ,458-460
(1990) (O'CONNOR, J., concurring in part and concurring in judgment
in part); Thornburgh v. American College of Obstetricians and
Gynecologists , 476 U. S. 747 , 828 (1986)
(O'CONNOR, J., dissenting). This confusing equation of the two
standards is apparently designed to explain how one of the Justices
who joined the plurality opinion in Webster v. Reproductive
Health Services , 492 U. S. 490 (1989),
which adopted the rational-basis test, could join an opinion
expressly adopting the undue burden test. See id. , at 520
(rejecting the view that abortion is a "fundamental right," instead
inquiring whether a law regulating the woman's "liberty interest"
in abortion is "reasonably designed" to further "legitimate" state
ends). The same motive also apparently underlies the joint
opinion's erroneous citation of the plurality opinion in Ohio
v. Akron Center for Reproductive Health , 497 U. S. 502 , 506 (1990)
( Akron II ) (opinion of KENNEDY, J.), as applying the undue
burden test. See ante , at 876 (using this citation to
support the proposition that "two of us" -i. e. , two of
the authors of the joint opinion-have previously applied this
test). In fact, Akron II does not mention the undue burden
standard until the conclusion of the opinion, when it states that
the statute at issue "does not impose an undue, or otherwise
unconstitutional , burden." 497 U. S., at 519 (emphasis added).
I fail to see how anyone can think that saying a statute does not
impose an unconstitutional burden under any standard,
including the undue burden test, amounts to adopting the undue
burden test as the exclusive standard. The Court's
citation of Hodgson as reflecting JUSTICE KENNEDY'S and
JUSTICE O'CONNOR'S "shared premises," ante , at 878, is
similarly inexplicable, since the word "undue" was never even used
in the former's opinion in that case. I joined JUSTICE KENNEDY'S
opinions in both Hodgson and Akron II ; I should
be grateful, I suppose, that the joint opinion does not claim that
I, too, have adopted the undue burden test.

															[ Footnote 5 ]

															Of course JUSTICE O'CONNOR was correct in her former view. The
arbitrariness of the viability line is confirmed by the Court's
inability to offer any justification for it beyond the conclusory
assertion that it is only at that point that the unborn child's
life "can in reason and all fairness" be thought to override the
interests of the mother. Ante , at 870. Precisely why is it
that, at the magical second when machines currently in use (though
not necessarily available to the particular woman) are able to keep
an unborn child alive apart from its mother, the creature is
suddenly able (under our Constitution) to be protected by law,
whereas before that magical second it was not? That makes no more
sense than according infants legal protection only after the point
when they can feed themselves.

															[ Footnote 6 ]

															The joint opinion is not entirely faithful to this principle,
however. In approving the District Court's factual findings with
respect to the spousal notice provision, it relies extensively on
nonrecord materials, and in reliance upon them adds a number of
factual conclusions of its own. Ante , at 891-893. Because
this additional factfinding pertains to matters that surely are
"subject to reasonable dispute," Fed. Rule Evid. 201(b), the joint
opinion must be operating on the premise that these are
"legislative" rather than "adjudicative" facts, see Rule 201(a).
But if a court can find an undue burden simply by selectively
string-citing the right social science articles, I do not see the
point of emphasizing or requiring "detailed factual findings" in
the District Court.

															[ Footnote 7 ]

															JUSTICE BLACKMUN'S effort to preserve as much of Roe as
possible leads him to read the joint opinion as more "constan[t]"
and "steadfast" than can be believed. He contends that the joint
opinion's "undue burden" standard requires the application of
strict scrutiny to "all non-de-minimis" abortion
regulations, ante , at 926, but that could only be true if
a "substantial obstacle," ante , at 877 (joint opinion),
were the same thing as a non de-minimis obstacle-which it
plainly is not.

Summary: The Supreme Court upheld the constitutional right to abortion established in Roe v. Wade but allowed some state regulation, setting the stage for future cases that would further restrict abortion access. The Court struck down some provisions of the Pennsylvania Abortion Control Act while upholding others. The Court ruled that states could not place an "undue burden" on a woman's right to choose, but what constitutes an "undue burden" remains a subject of debate and interpretation.