Whether the essential holding of Roe v. Wade should be retained
Roe v. Wade - Should be retained and reaffirmed.
Constitutional protection of a woman's right to abortion derives
from the term "liberty" in the Due Process Clause.
Realm of personal liberty - Government may not enter
As our cases have shown, the Constitution guarantees that there
is a realm of personal liberty which the government may not
Obligation to define liberty
Although some of us find abortion morally offensive, our
Obligation is to define the liberty of all, not to mandate our
own moral code.
Our reservations are outweighed by the explication of individual
liberty combined with the force of stare decisis.
Several Stare Decisis Considerations
Several considerations guide the stare decisis analysis and lead
to the determination that Roe should not be overturned:
Although controversial, Roe has not
Roe has caused reliance by people,
who have organized intimate relationships and made choices in
reliance on the availability of abortion, such that repudiating
the decision would cause a great hardship,
No constitutional law development has left Roe behind as a mere
survivor of obsolete constitutional thinking; and
Although time has overtaken some of Roe's factual assumptions,
with technological advances making abortions safe later in
pregnancy and advancing viability to an earlier point, these
facts go only to the scheme of time limits and have no bearing
on Roe's central holding.
Overruling Roe would overtax the country's belief in the Court's
Moreover, cases as intensely divisive as Roe carry special
considerations, and overruling Roe would overtax the country's
belief in the Court's good faith and would cause profound and
unnecessary damage to the Court's legitimacy.
Adherence to the essences of Roes original decision
It is therefore imperative to adhere to the essence of Roe's
With regard to the time framework imposed by Roe, we uphold the
position that the line should be drawn at viability, so that
before that time the woman has a right to choose to terminate
Whether Roe's trimester framework be replaced by an undue burden
- Roe's trimester framework should be replaced by an undue
We do not consider the trimester framework to be part of the
essential holding of Roe, and we do not agree that the framework
is necessary to ensure that the woman's right to choose not
become so subordinate to the State's interest in promoting fetal
life that the woman's right exists only in theory.
Court - The trimester framework is flawed
The trimester framework is flawed, as it
misconceives the nature of the pregnant
woman's interest, and it
undervalues the State's interest in potential life.
Roe used the framework to forbid any regulation of abortion
designed to advance the State's interest before viability.
However, the State has a substantial interest in potential life
- Unconstitutional if impose UNDUE BURDEN on a womans right to
In our view, only state regulations that impose an undue burden
on a woman's right to choose are unconstitutional.
Undue burden exists - Place a substantial obstacle in path of
An undue burden exists if the law's purpose or effect is to
place a substantial obstacle in the path of a woman seeking an
abortion before the fetus attains viability.
Ensure womans choice is informed, further womans health and
As long as it does not create an undue burden, a State may take
measures to ensure that the woman's choice is informed, and it
may enact regulations to further the health and safety of the
woman seeking the abortion.
Roe Is not disturbed
But our adoption of the undue burden analysis does not disturb
the central holdings of Roe:
a State may not prohibit any
woman from deciding to terminate her pregnancy before viability;
and subsequent to viability the State may proscribe abortion
except where necessary, in appropriate medical judgment, for the
preservation of the life or health of the mother.
We now turn to the validity of the challenged provisions.
Not undue burden: 24-hour waiting period, informed consent
The 24-hour waiting period and informed consent requirement is
not an undue burden on the right to decide to terminate a
pregnancy, because it
facilitates the wise exercise of that right.
Is undue burden: husband notification
The husband notification requirement, on the other hand, is an
The requirement often acts as a
substantial obstacle to a woman's choice, and it is
repugnant to our present understanding of marriage.
We reaffirm that a State may require a minor to obtain the
informed consent of her parents, although the State must also
provide an adequate judicial bypass procedure.
With respect to the facility reporting requirements, we uphold
the provisions because they relate to health and do not impose a
substantial obstacle to a woman's choice.
Concur & Dissent - Justice Stevens
agree with the Court's stare decisis analysis, as the costs of
overruling Roe at this late date would be enormous.
Disagree with the dismantling of the trimester framework
However, I disagree with the dismantling of the trimester
framework. It is not a contradiction to realize 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.
Persuasion causes serious questions to arise
agree that the State may take steps to ensure that a woman's
choice is informed, but serious questions arise when the State
attempts to persuade the woman to choose childbirth over
Materials designed to persuade her not to have an abortion
Those sections of the Pennsylvania law requiring a physician to
provide the woman with a range of materials designed to persuade
her to choose not to undergo the abortion are unconstitutional.
No evidence that 24-hours is relevant
The 24-hour waiting period raises even more serious concerns, as
there is no evidence that the delay benefits women or that it is
necessary to convey any relevant information.
Undue Burden: Wearing down the ability of the pregnant woman
The State cannot further its interest in potential life by
simply wearing down the ability of the pregnant woman to
exercise her constitutional right.
The counseling provisions also create an undue burden and do not
serve a useful purpose.
Concur & Dissent - Justice Blackmun
remain steadfast that the
right to reproductive choice is entitled to the full protection
afforded by our previous cases.
Strict Scrutiny is required
The Constitution requires that abortion restrictions be
subjected to the strictest of scrutiny.
State restrictions on abortion violate a woman's right of
State restrictions on abortion violate a woman's right of
privacy by infringing on her
right to bodily integrity and by depriving her of the right to
make critical choices about reproduction and family
Constitutional guarantees of gender equality
Furthermore, restrictions implicate constitutional guarantees of
gender equality, conscripting a woman's body into the State's
The strict scrutiny standard should stand, along with the
trimester framework, instead of the undue burden standard.
Concur & Dissent - Justice Rehnquist
We believe that Roe was wrongly decided, and that it can and
should be overruled consistently with our traditional approach
to stare decisis.
Strict Scrutiny for Roe was a mistake.
We believe that the Court in Roe was mistaken when it classified
a woman's right to terminate her pregnancy as a fundamental
right that could be abridged only if it withstood strict
woman does not have a fundamental right to an abortion
The joint opinion rejects Roe's view that a woman has a
fundamental right to an abortion; it rejects Roe's strict
scrutiny requirement; and it rejects the trimester framework.
Principles of stare decisis do not require that any portion of
Roe be kept intact.
In the end, the joint opinion's stare decisis argument is based
on general assertions about the nation's psyche, and on the fact
that Roe is so intensely divisive that it should not be
This is a novel principle.
Under this principle, once the Court has ruled on a divisive
issue, it is prevented from overruling that decision even if it
was incorrect. In addition, the joint opinion's "undue burden"
standard is no more workable than the trimester framework.
Rationally Related: A State should be allowed to regulate
We think that States should be allowed to regulate abortion
procedures in ways rationally related to legitimate state
Is for spousal notification
Based on this approach, we find that the spousal notification
requirement rationally furthers legitimate state interests in
protecting the interests of the father and in protecting the
potential life of the fetus.
Concur & Dissent - Justice Scalia
The power of a woman to abort her unborn child is not, I am
sure, a liberty protected by the Constitution.
The Constitution says nothing about it, and the longstanding
traditions of American society have permitted it to be legally
Undue burden opens the door to a district judges preference
The joint opinion presents an undefined "undue burden" standard
that invites a district judge to assert his personal preferences
about abortion, and its reliance on stare decisis is contrived
Roe created was wrong
Roe nourished, rather than resolved, the national debate on
Roe created a new class of abortion consumers and proponents,
inflamed national politics, and kept the Court in the business
of acting as umpires to the abortion controversy.
The Court should not be scared of the public
am appalled by the Court's suggestion that the decision whether
to stand by an erroneous constitutional decision must be
influenced by substantial public opposition to the decision, and
I disagree that overruling Roe would subvert the Court's
In any event, the suggestion 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
Roe should be overruled, because it was not correctly decided
and has not succeeded in producing a settled body of law.