The Abortion Cases Part Eleven

Abortion remains a volatile issue on the Court

In Planned Parenthood of Southeastern Pennsylvania v. Casey the Supreme Court eked out another close decision fractured even as to who authors what part of the opinion. It was a 5-4 decision. Associate Justice O'Connor, Associate Justices 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, 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.

Associate Justice Stevens concurred in part and dissented in part from the majority opinion.

Associate Justice Blackmun concurred in part, concurred in the judgment in part, and dissented in part. Blackmun joined parts I, II, III, V-A, V-C, and VI of the majority opinion.

Chief Justice Rehnquist concurred in the judgment in part and dissented in part. He was joined by Associate Justices Scalia and Thomas.

Associate Justice Scalia wrote an opinion dissenting in part, he was joined by Chief Justice Rehnquist and Associate Justices White and Thomas.

Five sections of the Pennsylvania Abortion Control Act of 1982 were at issue in this case.

1. §3205 requiring a woman seeking an abortion give her informed consent prior to the procedure, and specifies that she be provided with certain information at least 24 hours before the abortion is performed;
2. § 3206 mandating the informed consent of one parent for a minor to obtain an abortion, but providing a judicial bypass procedure;
3. §3209 commanding that, unless certain exceptions apply, a married woman seeking an abortion must sign a statement indicating that she has notified her husband;
4. §3203 defining "medical emergency" by which compliance with the foregoing requirements are excused;
5. §§ 3207(b), 3214(a), and 3214(f), imposing certain reporting requirements on facilities providing abortion services.

This case mounts another facial challenge to the constitutionality of a State law on abortions. Here the petitioners, five abortion clinics, a pro se physician, and a class of doctors who provide abortion services brought suit for declaratory relief asking that the several sections listed above were unconstitutional; they also sought injunctive relief.

The District Court held all the provisions unconstitutional and permanently enjoined their enforcement. The Court of Appeals affirmed in part and reversed in part, striking down the husband notification provision but upholding the balance.

The opinion said "After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, 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"

O'Connor wrote: "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 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."

Associate Justice Sandra Day O'Connor addresses the self-evident tension in Roe between a woman's unfettered right under the Fourteenth Amendment to terminate her pregnancy and the State's interests in protecting potential life. She said:

"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.

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 & 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 ___, 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, 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.

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."

The majority rejected the trimester rule established by the Court in Roe. "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."

The Court's majority deftly addresses the interests of the States in these cases. "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."

Feathering out the dimensions of the undue burden standard O'Connor wrote that "[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.

"Some guiding principles should emerge," the majority said. "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. 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."

Abortion is not an unfettered right

Addressing the particular clauses of the Pennsylvania statute listed above O'Connor begins with point four, §3203 defining "medical emergency."

That section says 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."

The opinion said that §3203 imposed no undue burden on a woman's abortion right.

The Court next addressed §3205 requiring a woman seeking an abortion give her informed consent prior to the procedure, and specifies that she be provided with certain information at least 24 hours before the abortion is performed.

Informed consent continued to be a focus of a State's limits in expressing its preference for live childbirth. O'Connor wrote "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."

Upholding §3205 the Court said "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."

Evidence at trial demonstrated a litany of harms that present themselves to a woman where she is required by law to get the husband's consent as §3209 mandates. In striking down this provision the Court said "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 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"

O'Connor traced the legal history of marriage back to a time when women had no rights and were seen only as extensions of their husbands. She wrote "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"

The Court rejected, again, the notion that parental consent violates a minor's rights under Roe where a judicial bypass is provided by the statute. The Court said "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"

The Court affirmed part and invalidated part of the record keeping requirements of the Pennsylvania law. "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."

Associate Justice Stevens wrote an opinion which concurred in part and dissented in part. He was concerned that more clarification was needed to guide the States as to when their interest in maternal health and live childbirth could override the privacy interest of the woman to make the choice to terminate her pregnancy.  The counterpoise from the States' interest in potential life was the liberty interest of the mother.

Pennsylvania's Governor Robert P. Casey, Sr. depicted as a Pope

He was also concerned that State law reflected secular, avoiding any violation of the First Amendment's Establishment Clause. "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."
Stevens rejects the Court's decisions in Akron and Thornburg He wrote "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 State is free, pursuant to § 3208 of the Pennsylvania law, to produce and disseminate such material, the State may not inject such information into the woman's deliberations just as she is weighing such an important choice."

Associate Justice Blackmun, appreciative of the affirmation of the Court's decision in Roe, nevertheless expressed concern about the hostile judicial activism mounting on the Court to the landmark case. He wrote "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.

He continued " 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 should be retained and once again reaffirmed." 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."

Chief Justice Rehnquist, ironically anchored his rebuff of the Substantive Due Process Rights of a woman's liberty under the Fourteenth Amendment to the case of Bowers v. Hardwick. The Bowers case dealt with Georgia criminalizing sodomy; oral and anal sex between consenting adults. I say ironic because the Supreme Court managed to overrule Bowers seventeen years later in a similar case from Texas, Lawrence v. Texas. Rehnquist generally assails the majority in his somewhat rambling dissent.

Associate Justice Nino Scalia, in his dissent, said that he does not believe that our "Liberty" is not protected by the Constitution. "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." 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."

Associate Justice Antonin Scalia

Apparently Nino Scalia has never read the Constitution which begins with the Preamble. "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

The Abortion Cases Part Ten

In Rust v. Sullivan the Supreme Court took a look at funds for Family Planning under Title X of the Public Health Service Act. The opinion of the Court was handed down by Chief Justice William Rehnquist. He was joined by Associate Justices Byron White, Anthony Kennedy, David Souter, and Nino Scalia.

Unlike their official portrait, the 1991 U.S. Supreme Court was sharply divided

Associate Justice Harry Blackmun wrote a dissenting opinion in which Associate Justice Thurgood Marshall joined and in which Associate Justice Sandra Day O'Connor joined as to Part I. Associate Justice John Paul Stevens joined Blackmun's opinion as to Parts II and III. Associate Justices Stevens and O'Connor filed separate dissenting opinions.

Facial challenges to a statute's constitutionality must demonstrate that the statute is constitutionally infirm as to any and all circumstances. A successful facial challenge to the constitutionality of a law renders that law void. Facial challenges are contrasted to "as applied" challenges which makes the case that the law as applied to a particular plaintiff or set of plaintiffs would be unconstitutional.

Rust v. Sullivan is a case about a facial challenge to the Department of Health and Human Services (HHS) regulations limiting the ability of Title X fund recipients to engage in abortion-related activities. The United States Court of Appeals for the Second Circuit upheld the regulations, finding them to be a permissible construction of the statute as well as consistent with the First and Fifth Amendments to the Constitution.

Here the majority affirms the Court of Appeals.

Congress enacted Title X of the Public Health Service Act (Act) providing for federal funding for family-planning services. The Act authorizes the Secretary of Health and Human Services to "make grants to and enter into contracts with public or non-profit private entities to assist in the establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family planning methods and services." Grants and contracts under Title X must "be made in accordance with such regulations as the Secretary may promulgate." Section 1008 of the Act, however, provides that "[n]one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning." That restriction was intended to ensure that Title X funds would "be used only to support preventive family planning services, population research, infertility services, and other related medical, informational, and educational activities."

The regulations attach three principal conditions on the grant of federal funds for Title X projects. First, the regulations specify that a "Title X project may not provide counseling concerning the use of abortion as a method of family-planning or provide referral for abortion as a method of family planning."

Second, the regulations broadly prohibit a Title X project from engaging in activities that "encourage, promote or advocate abortion as a method of family planning." 59.10(a). Forbidden activities include lobbying for legislation that would increase the availability of abortion as a method of family planning, developing or disseminating materials advocating abortion as a method of family planning, providing speakers to promote abortion as a method of family planning, using legal action to make abortion available in any way as a method of family planning, and paying dues to any group that advocates abortion as a method of family planning as a substantial part of its activities.

Third, the regulations require that Title X projects be organized so that they are "physically and financially separate" from prohibited abortion activities.

Petitioners are Title X grantees and doctors who supervise Title X funds suing on behalf of themselves and their patients. Respondent is the Secretary of the Department of Health and Human Services.

The Court found the language of Title X ambiguous. We need not dwell on the plain language of the statute because we agree with every court to have addressed the issue that the language is ambiguous. The language of 1008 — that "[n]one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning" — does not speak directly to the issues of counseling, referral, advocacy, or program integrity. If a statute is "silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute."

Addressing "Program Integrity" Rehnquist said it was permissible for separate facilities and record keeping be maintained as a way to insure that federal funds were only used in a manner prescribed by the rules imposed by the Secretary of Health and Human Services.

The Court's majority also rejected, by tiptoeing through a long line of cases, the argument that the rules advanced here violated the First Amendment. The opinion said "The regulations, which govern solely the scope of the Title X project's activities, do not in any way restrict the activities of those persons acting as private individuals. The employees' freedom of expression is limited during the time that they actually work for the project; but this limitation is a consequence of their decision to accept employment in a project, the scope of which is permissibly restricted by the funding authority"

Finally the Court summarily dismissed any claims predicated on denial of a woman's Due Process Rights under the Fifth Amendment. "Under the Secretary's regulations, however, a doctor's ability to provide, and a woman's right to receive, information concerning abortion and abortion-related services outside the context of the Title X project remains unfettered. It would undoubtedly be easier for a woman seeking an abortion if she could receive information about abortion from a Title X project, but the Constitution does not require that the Government distort the scope of its mandated program in order to provide that information."

The fact that this program was applicable to indigent women did not disturb the majority. "The financial constraints that restrict an indigent woman's ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortion, but rather of her indigency."

Associate Justice Harry Blackmun's called the majority's opinion disingenuous. He said: "Because I conclude that a plainly constitutional construction of 1008 is not only `fairly possible' but entirely reasonable,' [he] would reverse the judgment of the Court of Appeals on this ground without deciding the constitutionality of the Secretary's Regulations"

Blackmun rejected the majority's analysis regarding the First Amendment and Fifth Amendment claims.

In the dissent by Associate Justice Stevens, he said: " I am convinced that the 1970 Act did not authorize the Secretary to censor the speech of grant recipients or their employees, I would hold the challenged regulations invalid and reverse the judgment of the Court of Appeals."

In her dissent Associate Justice Sandra Day O'Connor said: " In this case, we need only tell the Secretary that his regulations are not a reasonable interpretation of the statute; we need not tell Congress that it cannot pass such legislation. If we rule solely on statutory grounds, Congress retains the power to force the constitutional question by legislating more explicitly. It may instead choose to do nothing. That decision should be left to Congress; we should not tell Congress what it cannot do before it has chosen to do it. It is enough in this case to conclude that neither the language nor the history of 1008 compels the Secretary's interpretation, and that the interpretation raises serious First Amendment concerns. On this basis alone, I would reverse the judgment of the Court of Appeals and invalidate the challenged regulations.

Rust v. Sullivan was decided in 1991

The Abortion Cases Part Nine

Webster v. Reproductive Health Center primarily demonstrated that Roe v. Wade is on shaky grounds. The sixteen intervening years since Roe was handed down had not proved sufficient for the law to settle along the seismic fault lines between an individual's right to privacy and the States' interests in safeguarding and protecting potential human life.

The fractured nature of the opinion gives good indication that the Justices are not of one mind regarding the state of law on abortion. Here, only Part II-C is a unanimous opinion. The opinion was delivered by Chief Justice Rehnquist.

Chief Justice William Rehnquist

The Court of Appeals invalidated the public funding portion of the Missouri Statute, §188.205. In Part II-C the Court addressed the threshold question "whether this provision reaches primary conduct, or whether it is simply an instruction to the State's fiscal officers not to allocate funds for abortion counseling" Two things happened here, first the State of Missouri argued that the statute applied only to "those persons responsible for expending public funds." The second thing was that the appellees withdrew their claim. Thus the issue was moot. Now, do you see why this part was unanimous?

Rehnquist was joined by Justices White, O'Connor, Scalia, and Kennedy with respects to parts I, II-A, and II-B. Part I of the opinion dealt with a brief history of the case as it came to the Supreme Court.

Part II-A dealt with the statute's preamble. which says in pertinent part that "[t]he life of each human being begins at conception," and that "[u]nborn children have protectable interests in life, health, and wellbeing." Mo.Rev.Stat. §§ 1.205.1(1), (2) (1986). The Act then mandates that state laws be interpreted to provide unborn children with "all the rights, privileges, and immunities available to other persons, citizens, and residents of this state," subject to the Constitution and this Court's precedents. The Court of appeals invalidated the statute's preamble.

Rehnquist wrote In our view, the Court of Appeals misconceived the meaning of the Akron dictum, which was only that a State could not "justify" an abortion regulation otherwise invalid under Roe v. Wade on the ground that it embodied the State's view about when life begins. Certainly the preamble does not, by its terms, regulate abortion or any other aspect of appellees' medical practice. The Court has emphasized that Roe v. Wade "implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion." Maher v. Roe, 432 U.S. at 474. The preamble can be read simply to express that sort of value judgment.

Rehnquist deferred to Missouri State Courts to first apply the statute, and passed on finding whether or not the preamble was unconstitutional.

The Court of Appeals said that § 188.210 of the Missouri law "[i]t shall be unlawful for any public employee within the scope of his employment to perform or assist an abortion, not necessary to save the life of the mother," and § 188.215 making "unlawful for any public facility to be used for the purpose of performing or assisting an abortion not necessary to save the life of the mother" were contravened by the Supreme Court's prior decisions.

In Part II-B Rehnquist rules that the Court of Appeals sought to distinguish our cases on the additional ground that "[t]he evidence here showed that all of the public facility's costs in providing abortion services are recouped when the patient pays. Absent any expenditure of public funds, the court thought that Missouri was "expressing" more than "its preference for childbirth over abortions," but rather was creating an "obstacle to exercise of the right to choose an abortion [that could not] stand absent a compelling state interest." The opinion of this Court disagreed with the Court of Appeals.

Chief Justice Rehnquist was joined in Part II-D and III by Justices White and Kennedy.

In interpreting §188.029 Rehnquist, in Part II-D, believes that the Court of Appeals committed plain error by interpreting a statute' single sentence rather than construing the act as a whole.

That disputed part of Missouri's law provides that "[b]efore a physician performs an abortion on a woman he has reason to believe is carrying an unborn child of twenty or more weeks gestational age, the physician shall first determine if the unborn child is viable by using and exercising that degree of care, skill, and proficiency commonly exercised by the ordinarily skillful, careful, and prudent physician engaged in similar practice under the same or similar conditions. In making this determination of viability, the physician shall perform or cause to be performed such medical examinations and tests as are necessary to make a finding of the gestational age, weight, and lung maturity of the unborn child and shall enter such findings and determination of viability in the medical record of the mother."

Chief Justice Rehnquist said " We think that the doubt cast upon the Missouri statute by these cases is not so much a flaw in the statute as it is a reflection of the fact that the rigid trimester analysis of the course of a pregnancy enunciated in Roe has resulted in subsequent cases like Colautti and Akron making constitutional law in this area a virtual Procrustean bed." The Chief Justice used this opinion to attack the underpinning decision in Roe v. Wade.

As to the statute at hand the Chief Justice said "we are satisfied that the requirement of these tests permissibly furthers the State's interest in protecting potential human life, and we therefore believe § 188.029 to be constitutional."

Part III of the opinion goes to the heart of overturning Roe v. Wade. The Chief Justice said: "Both appellants and the United States as Amicus Curiae have urged that we overrule our decision in Roe v. Wade. The facts of the present case, however, differ from those at issue in Roe. Here, Missouri has determined that viability is the point at which its interest in potential human life must be safeguarded. In Roe, on the other hand, the Texas statute criminalized the performance of all abortions, except when the mother's life was at stake. This case therefore affords us no occasion to revisit the holding of Roe, which was that the Texas statute unconstitutionally infringed the right to an abortion derived from the Due Process Clause, and we leave it undisturbed. To the extent indicated in our opinion, we would modify and narrow Roe and succeeding cases.

Associate Justice Sandra Day O'Connor filed an opinion in which she concurred in Parts I, II-A, II-B, and II-C of the Court's opinion and concur in the judgment as to Part II-D.

Associate Justice Nino Scalia

Associate Justice Nino Scalia filed an opinion concurring in Parts I, II-A, II-B, and II-C and agrees with Associate Justice Harry Blackmun's view that the plurality's opinion would effectively overrule Roe v. Wade. Justice Scalia clearly states that he would overrule Roe v. Wade.

Associate Justice Blackmun wrote a dissenting opinion in which Justices Brennan and Marshall concurred. This opinion is a scathing attack on the plurality.

Blackmun wrote that never in his "memory has a plurality gone about its business in such a deceptive fashion. At every level of its review, from its effort to read the real meaning out of the Missouri statute to its intended evisceration of precedents and its deafening silence about the constitutional protections that it would jettison, the plurality obscures the portent of its analysis. With feigned restraint, the plurality announces that its analysis leaves Roe "undisturbed," albeit "modif[ied] and narrow[ed]." But this disclaimer is totally meaningless. The plurality opinion is filled with winks, and nods, and knowing glances to those who would do away with Roe explicitly, but turns a stone face to anyone in search of what the plurality conceives as the scope of a woman's right under the Due Process Clause to terminate a pregnancy free from the coercive and brooding influence of the State. The simple truth is that Roe would not survive the plurality's analysis, and that the plurality provides no substitute for Roe's protective umbrella."

Associate Justice Stevens filed an opinion concurring in part and dissenting in part. Justice Stevens rightly positions the argument regarding the Missouri statute's preamble in light of being in violation of the First Amendment's Establishment Clause.

Justice Blackmun said:" In my opinion, the preamble to the Missouri statute is unconstitutional for two reasons. To the extent that it has substantive impact on the freedom to use contraceptive procedures, it is inconsistent with the central holding in Griswold. To the extent that it merely makes "legislative findings without operative effect," as the State argues, it violates the Establishment Clause of the First Amendment. Contrary to the theological "finding" of the Missouri Legislature, a woman's constitutionally protected liberty encompasses the right to act on her own belief that -- to paraphrase St. Thomas Aquinas -- until a seed has acquired the powers of sensation and movement, the life of a human being has not yet begun."

Webster v. Reproductive Health Center was decided in 1989.

The Abortion Cases Part Eight

The sharp division of the Court continued with the 5-4 decision in Thornburgh v. American College of Obstetricians & Gynecologists. Associate Justice Harry Blackmun delivered the opinion in which Justices Brennan, Marshall, Powell, and Stevens joined, with Stevens filing a separate concurring opinion. Chief Justice Burger filed a dissenting opinion. Justice White filed a dissenting opinion in which Justice Rehnquist joined. Justice O'Connor filed a dissenting opinion in which Justice Rehnquist joined.


Pennsylvania enacted a statute, the Pennsylvania Abortion Control Act of 1982. Appellees, the American College of Obstetricians & Gynecologists brought suit in Federal District Court seeking declaratory and injunctive relief.

The Court of Appeals granted appellees request for injunctive relief by enjoining enforcement of the entire act. Then the Court of Appeals held that part of the Pennsylvania was unconstitutional, relying on Planned Parenthood Association v. Ashcroft, City of Akron v. Akron Center for Reproductive Health, and Simopoulos v. Virginia.

The Court of Appeals ruled that §3205 was unconstitutional with respect to the provisions of informed consent requiring the woman be informed of:

 the name of the physician who will perform the abortion
 the particular medical risks of the abortion procedure to be used and of carrying her child to term
 that there may be "detrimental physical and psychological effects
 medical assistance benefits may be available for prenatal care, childbirth, and neonatal care
 the father is liable to assist in the child's support
 printed materials are available from the State that describe the fetus and list agencies offering alternatives to abortion
 § 3208 that requires such printed materials to include a statement that there are agencies willing to help the mother carry her child to term and to assist her after the child is born
 a description of the probable anatomical and physiological characteristics of an unborn child at "two-week gestational increments
 3214(a) and (h) that require the physician to report, among other things, identification of the performing and referring physicians, information as to the woman's residence, age, race, marital status, and number of prior pregnancies, and the basis for any judgment that a medical emergency existed or for any determination of nonviability,
 and the method of payment for the abortion, and further provide that such reports shall not be deemed public records, but shall be available for public inspection and copying in a form that will not lead to disclosure of the identity of any person filing a report
 § 3211(a) that requires the physician, after the first trimester, to report the basis for his determination that a child is not viable;
 §3210(b) that requires a physician performing a postviability abortion to exercise the degree of care required to preserve the life and health of any unborn child intended to be born and to use the abortion technique that would provide the best opportunity for the unborn child to be aborted alive unless it would present a significantly greater medical risk to the pregnant woman's life or health
 § 3210(c) that requires that a second physician be present during an abortion performed when viability is possible, which physician is to take all reasonable steps necessary to preserve the child's life and health.

Powell's opinion ruled that The States are not free, under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies. The provisions of the Pennsylvania Act that the Court of Appeals invalidated wholly subordinate constitutional privacy interests and concerns with maternal health to the effort to deter a woman from making a decision that, with her physician, is hers to make.

The printed materials required by §§ 3205 and 3208 are nothing less than an attempt to wedge the State's message discouraging abortion into the privacy of the informed consent dialogue between the woman and her physician. Similarly, § 3205's requirement that the woman be advised that medical assistance may be available, and that the father is responsible for financial assistance in support of the child, are poorly disguised elements of discouragement for the abortion decision. And § 3205's requirements that the physician inform the woman of "detrimental physical and psychological effects" and of all "particular medical risks" are the antithesis of informed consent.

The scope of the information required by §§ 3214(a) and (h) and 3211(a) and its availability to the public belie any assertions by the State that it is advancing any legitimate interest. The reporting requirements of those sections raise the specter of public exposure and harassment of women who choose to exercise their personal, intensely private, right, with their physician, to end a pregnancy. Thus, they pose an unacceptable danger of deterring the exercise of that right, and must be invalidated.

Section 3210(b) is facially invalid as being unsusceptible to a construction that does not require the mother to bear an increased medical risk in order save her viable fetus. Section 3210(c), by failing to provide a medical emergency exception for the situation where the mother's health is endangered by delay in the second physician's arrival, chills the performance of a late abortion, which, more than one performed at an earlier date, tends to be under emergency conditions

Justice John Paul Stevens

Associate Justice John Paul Steven's relied on stare decisis, the precedence of former cases on point with the instant opinion. Justice Stevens also took Associate Justice Byron "Whizzer" White to task for his dissent. White wrote a concurrent opinion in the Griswold case.

Justice Steven's writes that "In the final analysis, the holding in Roe v. Wade presumes that it is far better to permit some individuals to make incorrect decisions than to deny all individuals the right to make decisions that have a profound effect upon their destiny. Arguably a very primitive society would have been protected from evil by a rule against eating apples; a majority familiar with Adam's experience might favor such a rule. But the lawmakers who placed a special premium on the protection of individual liberty have recognized that certain values are more important than the will of a transient majority."

Chief Justice Burger's dissent said: "In discovering constitutional infirmities in state regulations of abortion that are in accord with our history and tradition, we may have lured judges into "roaming at large in the constitutional field." Griswold v. Connecticut, (Harlan, J., concurring). The soundness of our holdings must be tested by the decisions that purport to follow them. If Danforth and today's holding really mean what they seem to say, I agree we should reexamine Roe."

"The Court's astounding rationale for this holding is that such information might have the effect of "discouraging abortion," ante at 762, as though abortion is something to be advocated and encouraged. This is at odds not only with Roe, but with our subsequent abortion decisions as well. As I stated in my opinion for the Court in H. L. v. Matheson, 450 U.S. 398 (1981), upholding a Utah statute requiring that a doctor notify the parents of a minor seeking an abortion:

The Constitution does not compel a state to fine-tune its statutes so as to encourage or facilitate abortions. To the contrary, state action "encouraging childbirth except in the most urgent circumstances" is "rationally related to the legitimate governmental objective of protecting potential life."

Associate Justice Byron "Whizzer" White during his college days

Associate Justice Byron Raymond "Whizzer" White's dissent is a blockbuster. He says that it is time to overrule Roe v. Wade. White's opinion speaks to refining substantive Due Process of Law. He writes: "In most instances, the substantive protection afforded the liberty or property of an individual by the Fourteenth Amendment is extremely limited: state action impinging on individual interests need only be rational to survive scrutiny under the Due Process Clause, and the determination of rationality is to be made with a heavy dose of deference to the policy choices of the legislature. Only "fundamental" rights are entitled to the added protection provided by strict judicial scrutiny of legislation that impinges upon them. I can certainly agree with the proposition -- which I deem indisputable -- that a woman's ability to choose an abortion is a species of "liberty" that is subject to the general protections of the Due Process Clause. I cannot agree, however, that this liberty is so "fundamental" that restrictions upon it call into play anything more than the most minimal judicial scrutiny."

White's dissent cuts to the heart of a woman's right to privacy. White then takes the discussion to the nature of a fetus. "However one answers the metaphysical or theological question whether the fetus is a "human being" or the legal question whether it is a "person" as that term is used in the Constitution, one must at least recognize, first, that the fetus is an entity that bears in its cells all the genetic information that characterizes a member of the species homo sapiens and distinguishes an individual member of that species from all others, and second, that there is no nonarbitrary line separating a fetus from a child or, indeed, an adult human being. Given that the continued existence and development -- that is to say, the life -- of such an entity are so directly at stake in the woman's decision whether or not to terminate her pregnancy, that decision must 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."

White's argument makes the State's interest compelling both pre and post viability. "The governmental interest at issue is in protecting those who will be citizens if their lives are not ended in the womb. The substantiality of this interest is in no way dependent on the probability that the fetus may be capable of surviving outside the womb at any given point in its development, as the possibility of fetal survival is contingent on the state of medical practice and technology, factors that are in essence morally and constitutionally irrelevant. The State's interest is in the fetus as an entity in itself, and the character of this entity does not change at the point of viability under conventional medical wisdom. Accordingly, the State's interest, if compelling after viability, is equally compelling before viability."

Justice O'Connor's dissent dealt largely with the application of equitable principles on how, what, why, and when the courts may grant injunctive relief. She wrote an essay on the Law of Remedies. Of importance in our look at these Abortion Cases is her displeasure with the majority's use of her standard of undue burden.

She writes: "The Court today goes well beyond mere distortion of the 'unduly burdensome' standard. By holding that each of the challenged provisions is facially unconstitutional as a matter of law, and that no conceivable facts appellants might offer could alter this result, the Court appears to adopt as its new test a per se rule under which any regulation touching on abortion must be invalidated if it poses 'an unacceptable danger of deterring the exercise of that right.' Under this prophylactic test, it seems that the mere possibility that some women will be less likely to choose to have an abortion by virtue of the presence of a particular state regulation suffices to invalidate it. Simultaneously, the Court strains to discover 'the anti-abortion character of the statute.' [A]s JUSTICE WHITE points out, invents an unprecedented canon of construction under which 'in cases involving abortion, a permissible reading of a statute is to be avoided at all costs.'(dissenting). I shall not belabor the dangerous extravagance of this dual approach, because I hope it represents merely a temporary aberration, rather than a portent of lasting change in settled principles of constitutional law. Suffice it to say that I dispute not only the wisdom, but also the legitimacy, of the Court's attempt to discredit and preempt state abortion regulation regardless of the interests it serves and the impact it has."

Because the State of Pennsylvania did not ask the Court to reconsider or to overrule Roe v. Wade Justice O'Connor declined to address the question.

Thornburgh v. American College of Obstetricians & Gynecologists was decided in 1985.

The Abortion Cases Part Four

The parental consent issue reared its head again in Bellotti v. Baird. Massachusetts enacted a parental notification statute requiring consent from the parents be given prior to the procedure. If one or both of the parents refuse consent, then consent can be granted by an order of a judge of the superior court.

Justice Blackmun delivered the Court's opinion. Citing Planned Parenthood of Central Missouri v, Danforth he said the State may not impose a blanket provision . . . 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."

Although such deference to parents may be permissible with respect to other choices facing a minor, the unique nature and consequences of the abortion decision make it inappropriate 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..

We therefore conclude that if the State decides to require a pregnant minor to obtain one or both parents' consent to an abortion, it also must provide an alternative procedure whereby authorization for the abortion can be obtained.

Massachusetts law was constitutionally infirm in two respects: First, it permits judicial authorization for an abortion to be withheld from a minor who is found by the superior court to be mature and fully competent to make this decision independently. Second, it requires parental consultation or notification in every instance, without affording the pregnant minor an opportunity to receive an independent judicial determination that she is mature enough to consent or that an abortion would be in her best interests.

Bellotti v. Baird was decided in 1979.

Maher v. Roe, Beal v, Doe, Poelker v. Doe are companion cases. Maher v. Roe and Poelker v. Doe each deal with statutes that limited the use of public funds in paying for abortions. These two cases each ask the question if Connecticut, in the Maher case, and the city of Saint Louis, Missouri, in the Poelker case, violated the Equal Protection Clause of the Fourteenth Amendment.

In Maher the Court held that Connecticut placed no obstacles in the pregnant woman's path to an abortion. The statute did not impinge upon the fundamental right recognized in Roe v Wade. Associate Justice Lewis F. Powell delivered the opinions for the Court in these 6 to 3 decisions.

Associate Justice Lewis F. Powell

Powell said The Equal Protection Clause does not require a State participating in the Medicaid program to pay the expenses incident to nontherapeutic abortions for indigent women simply because it has made a policy choice to pay expenses incident to childbirth. Financial need alone does not identify a suspect class for purposes of equal protection analysis.

The extent of the fundamental right recognized in Roe was distinguished. That right implies no limitation on a State's authority to make a value judgment favoring childbirth over abortion and to implement that judgment by the allocation of public funds. An indigent woman desiring an abortion is not disadvantaged by Connecticut's decision to fund childbirth; she continues as before to be dependent on private abortion services.

A State is not required to show a compelling interest for its policy choice to favor normal childbirth. Connecticut's regulation is rationally related to and furthers its "strong and legitimate interest in encouraging normal childbirth," citing Beal v. Doe. Subsidizing costs incident to childbirth is a rational means of encouraging childbirth. States, moreover, have a wide latitude in choosing among competing demands for limited public funds.

Since the Court found no fundamental right being affected it used the rational means test rather than the heightened compelling state interest test, with its restrictive component requiring the statute to be narrowly tailored.

Here, a prior written request for the abortion procedure was upheld. Since it is not unreasonable for a State to insist upon a prior showing of medical necessity to insure that its money is being spent only for authorized purposes, the District Court erred in invalidating the requirements of prior written request by the pregnant woman and prior authorization by the Department of Social Services for abortions. Although similar requirements are not imposed for other medical procedures, such procedures do not involve the termination of a potential human life.

The Poelker case came next. Justice Powell relied on the Maher decision when discussing Saint Louis' policy. The policy of denying city funds for abortions such as that desired by Doe is subject to public debate and approval or disapproval at the polls. We merely hold, for the reasons stated in Maher, that the Constitution does not forbid a State or city, pursuant to democratic processes, from expressing a preference for normal childbirth as St. Louis has done.

The issue in Beal v, Doe focuses on whether Title XIX of the Social Security Act require states that participate in the Medicaid program to fund the cost of nontherapeutic abortions. This case originated in Pennsylvania.

Powell's opinion for the 6 to 3 court said nothing in the language of Title XIX requires a participating State to fund every medical procedure falling within the delineated categories of medical care. Each State is given broad discretion to determine the extent of medical assistance that is "reasonable" and "consistent with the objectives" of Title XIX

The State, Powell said, has a strong interest in encouraging normal childbirth that exists throughout the course of a woman's pregnancy, and nothing in Title XIX suggests that it is unreasonable for a State to further that interest. It therefore will not be presumed that Congress intended to condition a State's participation in Medicaid on its willingness to undercut that interest by subsidizing the costs of nontherapeutic abortions.

Powell said that when Congress passed Title XIX, nontherapeutic abortions were unlawful in most States, a fact that undermines the contention that Congress intended to require -- rather than permit -- participating States to fund such abortions. Moreover, the Department of Health, Education, and Welfare, the agency that administers Title XIX, takes the position that the Title allows, but does not mandate, funding for such abortions

The Court did not reach the issue of whether Pennsylvania's program under which financial assistance is not provided for medically necessary abortions unless two physicians in addition to the attending physician have examined the patient and have concurred in writing as to the medical necessity of the abortion interferes with the attending physician's medical judgment in a manner not contemplated by Congress should be considered on remand.

Maher v. Roe, Beal v, Doe, and Poelker v. Doe were decided in 1977.

The Abortion Cases Part Three

The decision in Roe spoke about viability of the fetus as the triggering mechanism for the State's interest in the potential life of the fetus to justify more regulations regarding abortion. The viability issue is further discussed in the case of Planned Parenthood of Central Missouri v, Danforth.

John C. Danforth, Clarence Thomas, and Strom Thurmond

Associate Justice Blackmun again delivered the opinion of a sharply divided Court. It was a 5 to 4 decision, although Justice Stevens concurred in part and dissented in part. So maybe it was more like a 5+ to a 4- decision. The issues in the case revolved around Missouri's abortion statute. John C. Danforth was the Attorney General of the State of Missouri.

The Court ruled that the definition of viability in the Missouri statute did not conflict with the definition in Roe v. Wade. Missouri's definition was that viability meant the fetus is potentially able to live outside the mother's womb, albeit with artificial aid, and is presumably capable of meaningful life outside the mother's womb.

The issues of consent to the abortion were likewise litigated in Planned Parenthood of Central Missouri v, Danforth, The Court said that Missouri could require written consent by the woman, or her parents if she is under 18 and single. These provisions do not apply in emergency situations affecting the life of the mother.

Blackmun said: " The decision to abort, indeed, is an important and often a stressful one, and it is desirable and imperative that it be made with full knowledge of its nature and consequences. The woman is the one primarily concerned, and her awareness of the decision and its significance may be assured, constitutionally, by the State to the extent of requiring her prior written consent."

The Court ruled on whether the State could require the spouse's consent. The decision was that the Missouri cannot delegate to a spouse a veto power which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.

The Court also said no to the requirement of parental notification. The State may not constitutionally impose a blanket parental consent requirement, as a condition for an unmarried minor's abortion during the first 12 weeks of her pregnancy for substantially the same reasons as in the case of the spousal consent provision, there being no significant state interests, whether to safeguard the family unit and parental authority or otherwise, in conditioning an abortion on the consent of a parent with respect to the under-18-year-old pregnant minor. As stressed in Roe, "the abortion decision and its effectuation must [p54] be left to the medical judgment of the pregnant woman's attending physician."

The Court then struck down Missouri's ban on the most commonly used abortion technique, saline amniocentesis.

Blackmun said the outright legislative proscription of saline amniocentesis fails as a reasonable protection of maternal health. As an arbitrary regulation designed to prevent the vast majority of abortions after the first 12 weeks, it is plainly unconstitutional.

Missouri's statute contained a reporting requirement. This provision was upheld. The Court said the reporting and recordkeeping requirements can be useful to the State's interest in protecting the health of its female citizens. These reports may be of medical value and are not constitutionally offensive in themselves, particularly in view of reasonable confidentiality and retention provisions. They thus do not interfere with the abortion decision or the physician-patient relationship. It is assumed that the provisions will not be administered in an unduly burdensome way, and that patients will not be required to execute spousal or parental consent forms in accordance with invalid provisions of the Act.

Missouri's law required the physician to preserve the life of the fetus during all stages of pregnancy. The Court rejected this part of the law. The first sentence of § 6(1) impermissibly requires a physician to preserve the fetus' life and health, whatever the stage of pregnancy. The second sentence, which provides for criminal and civil liability where a physician fails "to take such measures to encourage or to sustain the life of the child, and the death of the child results," does not alter the duty imposed by the first sentence or limit that duty to pregnancies that have reached the stage of viability, and since it is inseparably tied to the first provision, the whole section is invalid. This is an example of the State not having an elevated interest in the fetus, the pre-viability stage.

Planned Parenthood of Central Missouri v Danforth was decided in 1976.

The parental consent issue reared its head again in Bellotti v. Baird. Massachusetts enacted a parental notification statute requiring consent from the parents be given prior to the procedure. If one or both of the parents refuse consent, then consent can be granted by an order of a judge of the superior court.

Justice Blackmun delivered the Court's opinion. Citing Planned Parenthood of Central Missouri v. Danforth he said the State may not impose a blanket provision . . . 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." Although such deference to parents may be permissible with respect to other choices facing a minor, the unique nature and consequences of the abortion decision make it inappropriate 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.. We therefore conclude that if the State decides to require a pregnant minor to obtain one or both parents' consent to an abortion, it also must provide an alternative procedure whereby authorization for the abortion can be obtained.

Massachusetts law was constitutionally infirm in two respects: First, it permits judicial authorization for an abortion to be withheld from a minor who is found by the superior court to be mature and fully competent to make this decision independently. Second, it requires parental consultation or notification in every instance, without affording the pregnant minor an opportunity to receive an independent judicial determination that she is mature enough to consent or that an abortion would be in her best interests.

Bellotti v. Baird was decided in 1979.

The Abortion Cases - Part Two

The Texas laws at the heart of Roe v. Wade proscribed procuring or attempting an abortion except on medical advice for the purpose of saving the mother's life.

There were numerous appellants in the cause. Roe was a single woman who brought a class action suit challenging the constitutionality of the Texas statutes. Halford was a physician with two state criminal cases charging him with violating the Texas statutes, he was allowed to intervene in the case. The Does were a childless married couple, the wife having health issues, and wanted to avoid pregnancy.

Roe, and members of the class action lawsuit were deemed to have presented judiciable controversies to the Court. The Does and Halford did not have standing to sue.

The Wade in Roe v. Wade was Dallas County District Attorney Henry Wade.

I have often heard others say that Roe v. Wade was wrongfully decided. I disagree. This case held that State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a "compelling" point at various stages of the woman's approach to term.

Associate Justice Harry Blackmun

The opinion of the Court's 6 to 3 majority was delivered by Associate Justice Harry Blackmun. He said that the interest of the State escalated as the pregnancy, and the attendant fetal development, progressed. 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 .

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.

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 necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

So, if you think about it, the qualified right to an abortion, under Roe v. Wade, is tenuous because medical science is advancing fetal viability, ex utero, into the second trimester.  Therefore the State's interest in the potential life of the fetus attaches earlier in the pregnancy. Roe v. Wade does not make the right a woman has in her body absolute when it comes to pregnancy.  Likewise the State's interest does not overcome the preservation of the mother's life or health.

For those who are opposed to abortion, I suggest they direct their enormous energy and resources to those advancements in medical science which will increase the state's interest in regulating abortion. The foes of abortion rights must constrain themselves and quit harassing women, killing doctors, and committing other acts of domestic terrorism.

Associate Justice Oliver Wendell Holmes

Those who just can't get over the fact that the Supreme Court can overrule State law as violating the Constitution, need to read the reference to Justice Oliver Wendell Holmes' dissent in Lochner v. New York, with which he prefaced his opinion. " [The Constitution is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States."

This case is as much about privacy as it is about abortion. In a lengthy discourse Blackmun addressed the history of abortion. He considered Ancient Attitudes, the Hippocratic Oath, the Common Law, English Statutory Law, The American Law, The position of the American Medical Association, and the position of the American Public Health Association,

Further on in the opinion Blackmun engages in a length discourse about what, or when, a person becomes a person. This analysis includes a healthy dose of what religion has to say on the topic. Like I said, this is a well reasoned opinion.

Blackmun properly noted that the Constitution does not explicitly mention the word privacy in its text. That doesn't mean privacy is not a protected interest. Blackmun cited a litany of cases backing up this point.

The opinion said "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."

Blackmun goes on to say "[w]e, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation."

Roe v. Wade was decided in 1973.

Doe v. Bolton was a companion case to Roe v. Wade. Again Justice Blackmun delivered the opinion of the Court. Doe affirmed the decision in Roe that a woman's right to an abortion is not an absolute right. The case originated in Georgia and required that a physician's decision to perform an abortion must rest upon "his best clinical judgment" of its necessity. The Court said this requirement was not unconstitutionally vague since the medical decision is made in the light of all the attendant circumstances.

The Georgia Statute contained three procedural requirements which the Court said violated the Fourteenth Amendment. The statute required the abortions to be performed at hospitals with Joint Commission on Accreditation of Hospitals. Georgia failed to demonstrate why abortions needed to be performed at hospitals, let alone accredited hospitals.

Georgia's law interposed a hospital committee's approval as roadblock to obtaining an abortion. The committee was created to protect the hospital, not the patient. The Court said: " We conclude that the interposition of the hospital abortion committee is unduly restrictive of the patient's rights and needs that, at this point, have already been medically delineated and substantiated by her personal physician. To ask more serves neither the hospital nor the State."

Using similar reasoning the Court said that requiring acquiescence by two co practitioners also has no rational connection with a patient's needs, and unduly infringes on her physician's right to practice.

The Georgia statute had a residence requirement provision. The Court the residency requirement violated the Privileges and Immunities Clause by denying protection to persons who enter Georgia for medical services there.

Doe v. Bolton was decided in 1973.