Sandra Day O'Connor: These cases come to us on certiorari to the Court of Appeals for the Third Circuit. Marriage is mentioned nowhere in the Bill of Rights and interracial marriage was illegal 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. 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. §§ 3205 a , 3206 a , 3209 c 1990. 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 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. Significantly, none of the five opinions took the position that the record was inadequate in a way that would counsel leaving those judgments to the District Court in the first instance.
In addition to these reasons for thinking there is no reasonable probability of review and no fair prospect of reversing the Court of Appeals, one other point bears mention. The waiting period helps ensure that a woman's decision to abort is a well-considered one, and rationally furthers the State's legitimate interest in maternal health and in unborn life. The court's reiterated the Roe vs. My views on this matter are unchanged from those I set forth in my separate opinions in Webster v. These are the kinds of concerns that comprise the State's interest in potential human life.
Accordingly, a State's interest in protecting fetal life is not grounded in the Constitution. 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. 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. This conclusion is in no way inconsistent with our decisions upholding parental notification or consent requirements. Hogan, , 724-726, 102 S. The plurality found that continuing advancements in medical technology had proven that a fetus could be considered viable at 22 or 23 weeks rather than at the 28 weeks previously understood by the Court in Roe. Three years ago, in Webster v.
The measures must not be an undue burden on the right. 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. We conclude that it does. These are intimate views with infinite variations, and their deep, personal character underlay our decisions in Griswold, Eisenstadt, and Carey. 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.
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. This Court did not remand Casey to the lower courts for application of the proper legal standard, but undertook to apply the standard to the statute, upholding the constitutionality of most of its provisions. 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. The principles that guided the Court in Danforth should be our guides today. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress, before Roe v. 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. These principles control our assessment of the Pennsylvania statute, and we now turn to the issue of the validity of its challenged provisions.
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. The Court's decisions have afforded constitutional protection to personal decisions relating to marriage, see, e. It is conventional constitutional doctrine that where reasonable people disagree the government can adopt one position or the other. 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. Justia makes no guarantees or warranties that the annotations are accurate or reflect the current state of law, and no annotation is intended to be, nor should it be construed as, legal advice.
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. We must justify the lines we draw. Most significantly, the Pennsylvania statute required informed consent and a 24-hour waiting period for all women prior to undergoing the procedure. We agree generally with this conclusion, but refine the undue burden analysis in accordance with the principles articulated above. In addition, because the Court's duty is to ignore public opinion and criticism on issues that come before it, its members are in perhaps the worst position to judge whether a decision divides the Nation deeply enough to justify such uncommon protection. 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.
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. 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 the context of the values and moral or religious principles of their family. Population Services Int'l, , 687, 702, 97 S. 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. These cases embody the principle that personal decisions that profoundly affect bodily integrity, identity, and destiny should be largely beyond the reach of government. While the plurality acknowledged that Roe had been controversial, it found no reason to overturn it.
The plurality did make changes to the standard of review applied to state abortion laws. Salerno, , 745, 107 S. See infra, at ---- - ---- addressing Pennsylvania's parental consent requirement. 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. See Planned Parenthood of Central Mo. 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. 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.