Privacy

Reproductive Rights: A Fundamental Right

Roe v. Wade (1972)

410 U.S. 113 (1972)

Vote: 7-2
Decision: Affirmed
Majority: Blackmun, joined by Burger, Douglas, Brennan, Stewart, Marshall, Powell
Concurrence: Burger, joined by Douglas
Dissent: White, Rehnquist

Mr. Justice Blackmun delivered the opinion of the Court.

The Texas statutes that concern us here are Arts. Sec. 1191-1194 and 1196 of the State’s Penal Code. These make it a crime to “procure an abortion,” as therein defined, or to attempt one, except with respect to “an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.” Similar statutes are in existence in a majority of the States …

Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion “performed by a competent, licensed physician, under safe, clinical conditions”; that she was unable to get a “legal” abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy; and that she could not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions. She claimed that the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. By an amendment to her complaint Roe purported to sue “on behalf of herself and all other women” similarly situated …

James Hubert Hallford, a licensed physician, sought and was granted leave to intervene in Roe‘s action. In his complaint he alleged that he had been arrested previously for violations of the Texas abortion statutes and that two such prosecutions were pending against him. He described conditions of patients who came to him seeking abortions, and he claimed that for many cases he, as a physician, was unable to determine whether they fell within or outside the exception recognized by Article 1196. He alleged that, as a consequence, the statutes were vague and uncertain, in violation of the Fourteenth Amendment, and that they violated his own and his patients’ rights to privacy in the doctor-patient relationship and his own right to practice medicine, rights he claimed were guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments …

But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of non-mootness. It truly could be “capable of repetition, yet evading review …”

The principal thrust of appellant’s attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal “liberty” embodied in the Fourteenth Amendment’s Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras …

Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence. It has been argued occasionally that these laws were the product of a Victorian social concern to discourage illicit sexual conduct. Texas, however, does not advance this justification in the present case, and it appears that no court or commentator has taken the argument seriously …

A second reason is concerned with abortion as a medical procedure. When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman …

Modern medical techniques have altered this situation. Appellants and various amici refer to medical data indicating that abortion in early pregnancy, that is, prior to the end of the first trimester, although not without its risk, is now relatively safe. Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth.” Consequently, any interest of the State in protecting the woman from an inherently hazardous procedure, except when it would be equally dangerous for her to forgo it, has largely disappeared. Of course, important state interests in the areas of health and medical standards do remain.

The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that ensure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise. The prevalence of high mortality rates at illegal “abortion mills” strengthens, rather than weakens, the State’s interest in regulating the conditions under which abortions are performed. Moreover, the risk to the woman increases as her pregnancy continues. Thus, the State retains a definite interest in protecting the woman’s own health and safety when an abortion is proposed at a late stage of pregnancy.

The third reason is the State’s interest-some phrase it in terms of duty-in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception. The State’s interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing the State’s interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone …

It is with these interests, and the eight to be attached to them, that this case is concerned …

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are all factors the woman and her responsible physician necessarily will consider in consultation.

On the basis of elements such as these, appellant and some amici argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant’s arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman’s sole determination, are unpersuasive. The Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions …

With respect to the State’s important and legitimate interest in the health of the mother, the “compelling” point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact … that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like …

This means, on the other hand, that, for the period of pregnancy prior to this “compelling” point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may. be effectuated by an abortion free of interference by the State …

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If 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 …

Measured against these standards, Art. 1196 of the Texas Penal Code, in restricting legal abortions to those “procured or attempted by medical advice for the purpose of saving the life of the mother,” sweeps too broadly. The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, “saving” the mother’s life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack made upon it here. This conclusion makes it unnecessary for us to consider the additional challenge to the Texas statute asserted on grounds of vagueness …

To summarize and to repeat: 1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment. (a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician. (b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. (c) For the stage 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 …

This ‘holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available …

Our conclusion that Art. 1196 is unconstitutional means, of course, that the Texas abortion statutes, as a unit, must fall. The exception of Art. 1196 cannot be struck down separately, for then the State would be left with a statute proscribing all abortion procedures no matter how medically urgent the case …

In all other respects, the judgment of the District Court is affirmed. Costs are allowed to the appellee.

It is so ordered.


Planned Parenthood v. Danforth (1986)

428 U.S. 52 (1986)

Vote: 5-4
Decision: Affirmed (in part) and Reversed (in part)
Majority: Blackmun joined by Brennan, Stewart, Marshall, and Powell; Stevens (in all but Parts IV-D and IV-E); and Burger, White, and Rehnquist
Concurrence: Stewart, joined by Powell and White, joined by Burger, Rehnquist
Concurrence/Dissent: Stevens

Mr. Justice Blackmun delivered the opinion of the Court.

The woman’s consent. Under § 3(2) of the Act, a woman, prior to submitting to an abortion during the first 12 weeks of pregnancy, must certify in writing her consent to the procedure and “that her consent is informed and freely given and is not the result of coercion.” Appellants argue that this requirement is violative of Roe v. Wade, by imposing an extra layer and burden of regulation on the abortion decision … Appellants also claim that the provision is overbroad and vague … Despite the fact that apparently no other Missouri statute … requires a patient’s prior written consent to a surgical procedure, the imposition by § 3(2) of such a requirement for termination of pregnancy even during the first stage, in our view, is not, in itself, an unconstitutional requirement.

The spouse’s consent. Section 3(3) requires the prior written consent of the spouse of the woman seeking an abortion during the first 12 weeks of pregnancy, unless “the abortion is certified by a licensed physician to be necessary in order to preserve the life of the mother.” …

We recognize, of course, that when a woman, with the approval of her physician but without the approval of her husband, decides to terminate her pregnancy, it could be said that she is acting unilaterally. The obvious fact is 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. Cf. Roe v. Wade … We conclude that § 3(3) of the Missouri Act is inconsistent with the standards enunciated in Roe v. Wade, and is unconstitutional.

Parental consent. Section 3(4) requires, with respect to the first 12 weeks of pregnancy, where the woman is unmarried and under the age of 18 years, the written consent of a parent or person In loco parentis unless, again, “the abortion is certified by a licensed physician as necessary in order to preserve the life of the mother.” It is to be observed that only one parent need consent …

We agree with appellants and with the courts whose decisions have just been cited that the State may not impose a blanket provision, such as § 3(4), requiring the consent of a parent or person in loco parentis as a condition for abortion of an unmarried minor during the first 12 weeks of her pregnancy. Just as with the requirement of consent from the spouse, so here, the State does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient’s pregnancy, regardless of the reason for withholding the consent.

Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution, and possess constitutional rights …

… Any independent interest the parent may have in the termination of the minor daughter’s pregnancy is no more weighty than the right of privacy of the competent minor mature enough to have become pregnant.

We emphasize that our holding that § 3(4) is invalid does not suggest that every minor, regardless of age or maturity, may give effective consent for termination of her pregnancy … The fault with § 3(4) is that it imposes a special consent provision, exercisable by a person other than the woman and her physician, as a prerequisite to a minor’s termination of her pregnancy, and does so without a sufficient justification for the restriction. It violates the strictures of Roe and Doe.

Affirmed in part, reversed in part, and remanded.


Bellotti v. Baird (Bellotti II) (1977)

443 U.S. 622 (1977)

Vote: 9-1
Decision: Vacated and remanded
Plurality: Powell, joined by Burger, Stewart, Rehnquist
Concurrence: Rehnquist and Stevens (in judgment only), joined by Brennan, Marshall, Blackmun
Dissent: White

MR. JUSTICE POWELL announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE REHNQUIST joined.

These appeals present a challenge to the constitutionality of a state statute regulating the access of minors to abortions. They require us to continue the inquiry we began in Planned Parenthood of Central Missouri v. Danforth, (1976) …

Mary Moe was permitted to represent the “class of unmarried minors in Massachusetts who have adequate capacity to give a valid and informed consent [to abortion], and who do not wish to involve their parents.” Baird v. Bellotti, 393 F. Supp. 847, 850 (Mass. 1975) (Baird I). …

In its analysis of the relevant constitutional principles, the [lower] court stated that “there can be no doubt but that a female’s constitutional right to an abortion in the first trimester does not depend upon her calendar age.” Id., at 855-856. The court found no justification for the parental consent limitation placed on that right by § 12S, since it concluded that the statute was “cast not in terms of protecting the minor, … but in recognizing independent rights of parents.” Id., at 856. The “independent” parental rights protected by § 12S, as the court understood them, were wholly distinct from the best interests of the minor …

A child, merely on account of his minority, is not beyond the protection of the Constitution. As the Court said in In re Gault, (1967), “whatever may be their precise impact, neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.” This observation, of course, is but the beginning of the analysis. The Court long has recognized that the status of minors under the law is unique in many respects …

The Court’s concern for the vulnerability of children is demonstrated in its decisions dealing with minors’ claims to constitutional protection against deprivations of liberty or property interests by the State. With respect to many of these claims, we have concluded that the child’s right is virtually coextensive with that of an adult. For example, the Court has held that the Fourteenth Amendment’s guarantee against the deprivation of liberty without due process of law is applicable to children in juvenile delinquency proceedings …

These rulings have not been made on the uncritical assumption that the constitutional rights of children are indistinguishable from those of adults. Indeed, our acceptance of juvenile courts distinct from the adult criminal justice system assumes that juvenile offenders constitutionally may be treated differently from adults …

Viewed together, our cases show that although children generally are protected by the same constitutional guarantees against governmental deprivations as are adults, the State is entitled to adjust its legal system to account for children’s vulnerability and their needs for “concern, … sympathy, and.., paternal attention …”

Second, the Court has held that the States validly may limit the freedom of children to choose for themselves in the making of important, affirmative choices with potentially serious consequences. These rulings have been grounded in the recognition that, during the formative years of childhood and adolescence, minors often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them …

Third, the guiding role of parents in the upbringing of their children justifies limitations on the freedoms of minors. The State commonly protects its youth from adverse governmental action and from their own immaturity by requiring parental consent to or involvement in important decisions by minors. But an additional and more important justification for state deference to parental control over children is that “[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations …”

Properly understood, then, the tradition of parental authority is not inconsistent with our tradition of individual liberty; rather, the former is one of the basic presuppositions of the latter. Legal restrictions on minors, especially those supportive of the parental role, may be important to the child’s chances for the full growth and maturity that make eventual participation in a free society meaningful and rewarding. Under the Constitution, the State can “properly conclude that parents and others, teachers for example, who have [the] primary responsibility for children’s well-being are entitled to the support of laws designed to aid discharge of that responsibility …”

The pregnant minor’s options are much different from those facing a minor in other situations, such as deciding whether to marry. A minor not permitted to marry before the age of majority is required simply to postpone her decision. She and her intended spouse may preserve the opportunity for later marriage should they continue to desire it. A pregnant adolescent, however, cannot preserve for long the possibility of aborting, which effectively expires in a matter of weeks from the onset of pregnancy … the abortion decision is one that simply cannot be postponed, or it will be made by default with far-reaching consequences …

There is no reason to believe that this would be so in the majority of cases where consent is withheld. But many parents hold strong views on the subject of abortion, and young pregnant minors, especially those living at home, are particularly vulnerable to their parents’ efforts to obstruct both an abortion and their access to court. It would be unrealistic, therefore, to assume that the mere existence of a legal right to seek relief in superior court provides an effective avenue of relief for some of those who need it the most. We conclude, therefore, that under state regulation such as that undertaken by Massachusetts, every minor must have the opportunity-if she so desires-to go directly to a court without first consulting or notifying her parents. If she satisfies the court that she is mature and well enough informed to make intelligently the abortion decision on her own, the court must authorize her to act without parental consultation or consent. If she fails to satisfy the court that she is competent to make this decision independently, she must be permitted to show that an abortion nevertheless would be in her best interests. If the court is persuaded that it is, the court must authorize the abortion …

If, however, the court is not persuaded by the minor that she is mature or that the abortion would be in her best interests, it may decline to sanction the operation. There is, however, an important state interest in encouraging a family rather than a judicial resolution of a minor’s abortion decision. Also, as we have observed above, parents naturally take an interest in the welfare of their children’s interest that is particularly strong where a normal family relationship exists and where the child is living with one or both parents. These factors properly may be taken into account by a court called upon to determine whether an abortion in fact is in a minor’s best interests. If, all things considered, the court determines that an abortion is in the minor’s best interests, she is entitled to court authorization without any parental involvement. On the other hand, the court may deny the abortion request of an immature minor in the absence of parental consultation if it concludes that her best interests would be served thereby, or the court may in such a case defer decision until there is parental consultation in which the court may participate. But this is the full extent to which parental involvement may be required. For the reasons stated above, the constitutional right to seek an abortion may not be unduly burdened by state-imposed conditions upon initial access to court …

Accordingly, we affirm the judgment of the District Court insofar as it invalidates this statute and enjoins its enforcement.

Affirmed.


Akron v. Akron Health Center (1986)

462 U.S. 416 (1986)

Vote: 6-3
Opinion: J. Powell
Decision: Affirmed in part and reversed in part
Majority: Powell, Burger, Brennan, Marshall, Blackmun, Stevens
Dissent: O’Connor, joined by White, Rehnquist

JUSTICE POWELL delivered the opinion of the Court.

These cases come to us a decade after we held in Roe v Wade, (1973), that the right of privacy, grounded in the concept of personal liberty guaranteed by the Constitution, encompasses a woman’s right to decide whether to terminate her pregnancy. Legislative responses to the Court’s decision have required us on several occasions, and again today, to define the limits of a State’s authority to regulate the performance of abortions. Nonetheless, the doctrine of stare decisis, while perhaps never entirely persuasive on a constitutional question, is a doctrine that demands respect in a society governed by the rule of law.’ We respect it today, and reaffirm Roe v. Wade

The ordinance sets forth 17 provisions that regulate the performance of abortions, see Akron Codified Ordinances, ch. 1870, 5 of which are at issue in this case: (i) Section 1870.03 requires that all abortions performed after the first trimester of pregnancy be performed in a hospital.3 (ii) Section 1870.05 sets forth requirements for notification of and consent by parents before abortions may be performed on unmarried minors. (iii) Section 1870.06 requires that the attending physician make certain specified statements to the patient “to insure that the consent for an abortion is truly informed consent.” (iv) Section 1870.07 requires a 24-hour waiting period between the time the woman signs a consent form and the time the abortion is performed.’ (v) Section 1870.16 requires that fetal remains be “disposed of in a humane and sanitary manner …”

In Roe v. Wade, the Court held that the “right of privacy, … founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Although the Constitution does not specifically identify this right, the history of this Court’s constitutional adjudication leaves no doubt that “the 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.” Poe v. Ullman, (1961) (Harlan, J., dissenting from dismissal of appeal). Central among these protected liberties is an individual’s “freedom of personal choice in matters of marriage and family life.” The Court also has recognized, because abortion is a medical procedure, that the full vindication of the woman’s fundamental right necessarily requires that her physician be given “the room he needs to make his best medical judgment …”

First, a State has an “important and legitimate interest in protecting the potentiality of human life.” Id., at 162. Although this interest exists “throughout the course of the woman’s pregnancy,” Beal v. Doe, (1977), it becomes compelling only at viability, the point at which the fetus “has the capability of meaningful life outside the mother’s womb … At viability this interest in protecting the potential life of the unborn child is so important that the State may proscribe abortions altogether, “except when it is necessary to preserve the life or health of the mother …”

Second, because a State has a legitimate concern with the health of women who undergo abortions, “a State may properly assert important interests in safeguarding health [and] in maintaining medical standards.” Id., at 154. We held in Roe, however, that this health interest does not become compelling until “approximately the end of the first trimester” of pregnancy …

This does not mean that a State never may enact a regulation touching on the woman’s abortion right during the first weeks of pregnancy. Certain regulations that have no significant impact on the woman’s exercise of her right may be permissible where justified by important state health objectives …

We have rejected a State’s attempt to ban a particular second-trimester abortion procedure, where the ban would have increased the costs and limited the availability of abortions without promoting important health benefits. If a State requires licensing or undertakes to regulate the performance of abortions during this period, the health standards adopted must be “legitimately related to the objective the State seeks to accomplish …”

Section 1870.03 of the Akron ordinance requires that any abortion performed “upon a pregnant woman subsequent to the end of the first trimester of her pregnancy” must be “performed in a hospital.” A “hospital” is “a general hospital or special hospital devoted to gynecology or obstetrics which is accredited by the Joint Commission on Accreditation of Hospitals or by the American Osteopathic Association.” § 1870.01(B). Accreditation by these organizations requires compliance with comprehensive standards governing a wide variety of health and surgical services.” The ordinance thus prevents the performance of abortions in outpatient facilities that are not part of an acute-care, full-service hospital …

There can be no doubt that § 1870.03’s second-trimester hospitalization requirement places a significant obstacle in the path of women seeking an abortion. A primary burden created by the requirement is additional cost to the woman. The Court of Appeals noted that there was testimony that a second-trimester abortion costs more than twice as much in a hospital as in a clinic. See 651 F. 2d, at 1209 (in-hospital abortion costs $850-$900, whereas a dilatation-and-evacuation (D&E) abortion performed in a clinic costs $350-$400). Moreover, the court indicated that second-trimester abortions were rarely performed in Akron hospitals. Ibid. (only nine second-trimester abortions performed in Akron hospitals in the year before trial).21 Thus, a second-trimester hospitalization requirement may force women to travel to find available facilities, resulting in both financial expense and additional health risk. It therefore is apparent that a second trimester hospitalization requirement may significantly limit a woman’s ability to obtain an abortion …

It is true that a state abortion regulation is not unconstitutional simply because it does not correspond perfectly in all cases to the asserted state interest. But the lines drawn in a state regulation must be reasonable, and this cannot be said of § 1870.03. By preventing the performance of D&E abortions in an appropriate nonhospital setting, Akron has imposed a heavy, and unnecessary, burden on women’s access to a relatively inexpensive, otherwise accessible, and safe abortion procedure.” Section 1870.03 has “the effect of inhibiting … the vast majority of abortions after the first 12 weeks,” Danforth, 428 U. S., at 79, and therefore unreasonably infringes upon a woman’s constitutional right to obtain an abortion …

We turn next to § 1870.05(B), the provision prohibiting a physician from performing an abortion on a minor pregnant woman under the age of 15 unless he obtains “the informed written consent of one of her parents or her legal guardian” or unless the minor obtains “an order from a court having jurisdiction over her that the abortion be performed or induced.”

… Akron’s ordinance does not create expressly the alternative procedure required by Bellotti II. …

The Akron ordinance provides that no abortion shall be performed except “with the informed written consent of the pregnant woman, … given freely and without coercion.” § 1879.06(A). Furthermore, “in order to insure that the consent for an abortion is truly informed consent,” the woman must be “orally informed by her attending physician” of the status of her pregnancy, the development of her fetus, the date of possible viability, the physical and emotional complications that may result from an abortion, and the availability of agencies to provide her with assistance and information with respect to birth control, adoption, and childbirth. § 1879.06(B). In addition, the attending physician must inform her

“of the particular risks associated with her own pregnancy and the abortion technique to be employed … [and] other information which in his own medical judgment is relevant to her decision as to whether to have an abortion or carry her pregnancy to term.”

… The validity of an informed consent requirement thus rests on the State’s interest in protecting the health of the pregnant woman … We rejected the view that “informed consent” was too vague a term, construing it to mean “the giving of information to the patient as to just what would be done and as to its consequences. To ascribe more meaning than this might well confine the attending physician in an undesired and uncomfortable straitjacket in the practice of his profession.” … This does not mean, however, that a State has unreviewable authority to decide what information a woman must be given before she chooses to have an abortion. It remains primarily the responsibility of the physician to ensure that appropriate information is conveyed to his patient, depending on her particular circumstances. Danforth’s recognition of the State’s interest in ensuring that this information be given will not justify abortion regulations designed to influence the woman’s informed choice between abortion or childbirth. …

Viewing the city’s regulations in this light, we believe that § 1879.06(B) attempts to extend the State’s interest in ensuring “informed consent” beyond permissible limits.

The Akron ordinance prohibits a physician from performing an abortion until 24 hours after the pregnant woman signs a consent form. § 1879.07.

We find that Akron has failed to demonstrate that any legitimate state interest is furthered by an arbitrary and inflexible waiting period. There is no evidence suggesting that the abortion procedure will be performed more safely. 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. The decision whether to proceed with an abortion is one as to which it is important to “affor[d] the physician adequate discretion in the exercise of his medical judgment.” Colautti v. Franklin … In accordance with the ethical standards of the profession, a physician will advise the patient to defer the abortion when he thinks this will be beneficial to her. But if a woman, after appropriate counseling, is prepared to give her written informed consent and proceed with the abortion, a State may not demand that she delay the effectuation of that decision.

Section 1870.16 of the Akron ordinance requires physicians performing abortions to “insure that the remains of the unborn child are disposed of in a humane and sanitary manner.” … [w]e agree that it violates the Due Process Clause.

We affirm the judgment of the Court of Appeals invalidating those sections of Akron’s “Regulations of Abortions” ordinance that deal with parental consent, informed consent, a 24-hour waiting period, and the disposal of fetal remains. The remaining portion of the judgment, sustaining Akron’s requirement that all second-trimester abortions be performed in a hospital, is reversed.

It is so ordered.


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Civil Rights and Liberties by Rorie Spill Solberg is licensed under a Creative Commons Attribution 4.0 International License, except where otherwise noted.

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