Abortion.—In Roe v. Wade,557 the Court established a right of personal privacy protected by the due process clause that includes the right of a woman to determine whether or not to bear a child. In doing so, the Court dramatically increased judicial oversight of legislation under the privacy line of cases, striking down aspects of abortion-related laws in practically all the States, the District of Columbia, and the territories. To reach this result, the Court first undertook a lengthy historical review of medical and legal views regarding abortion, finding that modern prohibitions on abortion were of relatively recent vintage and thus lacked the historical foundation which might have preserved them from constitutional review.558 Then, the Court established that the word "person" as used in the due process clause and in other provisions of the Constitution did not include the unborn, and therefore the unborn lacked federal constitutional protection.559 Finally, the Court summarily announced that the "Fourteenth Amendment's concept of personal liberty and restrictions upon state action" includes "a right of personal privacy, or a guarantee of certain areas or zones of privacy"560 and that "[t]his right of privacy . . . is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."561

557 410 U.S. 113, 164 (1973). A companion case was Doe v. Bolton, 410 U.S. 179 (1973). The opinion by Justice Blackman was concurred in by Justices Douglas, Brennan, Stewart, Marshall, and Powell, and Chief Justice Burger. Justices White and Rehnquist dissented, id. at 171, 221, arguing that the Court should follow the traditional due process test of determining whether a law has a rational relation to a valid state objective and that so judged the statute was valid. Justice Rehnquist was willing to consider an absolute ban on abortions even when the mother's life is in jeopardy to be a denial of due process, 410 U.S. at 173, while Justice White left the issue open. 410 U.S. at 223.

558 410 U.S. at 129-47.

559 410 U.S.at 156-59.

560 410 U.S. at 152-53.

561 410 U.S. at 152-53.

It was also significant that the Court held this right of privacy to be "fundamental" and, drawing upon the strict standard of review found in equal protection litigation, held that the due process clause required that any limits on this right be justified only by a "compelling state interest" and be narrowly drawn to express only the legitimate state interests at stake.562 Assessing the possible interests of the States, the Court rejected justifications relating to the promotion of morality and the protection of women from the medical hazards of abortions as unsupported in the record and ill-served by the laws in question. Further, the state interest in protecting the life of the fetus was held to be limited by the lack of a social consensus with regard to the issue of when life begins. Two valid state interests were, however, recognized. "[T]he State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman . . . [and] it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes 'compelling."'563

Because medical data indicated that abortion prior to the end of the first trimester is relatively safe, the mortality rate being lower than the rates for normal childbirth, and because the fetus has no capability of meaningful life outside the mother's womb, the Court found that the State has no "compelling interest" in the first trimester and "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."564 In the intermediate trimester, the danger to the woman increases and the State may therefore regulate the abortion procedure "to the extent that the regulation reasonably relates to the preservation and protection of maternal health," but the fetus is still not able to survive outside the womb, and consequently the actual decision to have an abortion cannot be otherwise impeded.565 "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."566

562 410 U.S. at 152, 155-56. The "compelling state interest" test in equal protection cases is reviewed under "The New Standards: Active Review," infra.

563 410 U.S. at 147-52, 159-63.

564 410 U.S. at 163.

Thus, the Court concluded that "(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."

Further, in a companion case, the Court struck down three procedural provisions relating to a law which did allow some abortions.567 These regulations required that an abortion be performed in a hospital accredited by a private accrediting organization, that the operation be approved by the hospital staff abortion committee, and that the performing physician's judgment be confirmed by the independent examination of the patient by two other licensed physicians. These provisions were held not to be justified by the State's interest in maternal health because they were not reasonably related to that interest.568 But a clause making the performance of an abortion a crime except when it is based upon the doctor's "best clinical judgment that an abortion is necessary" was upheld against vagueness attack and was further held to benefit women seeking abortions inasmuch as the doctor could utilize his best clinical judgment in light of all the attendant circumstances.569

565 410 U.S. at 163.

566 410 U.S. at 163-64. A fetus becomes "viable" when it is "potentially able to live outside the mother's womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks." Id. at 160 (footnotes omitted).

567 Doe v. Bolton, 410 U.S. 179 (1973).

568 410 U.S. at 192-200. In addition, a residency provision was struck down as violating the privileges and immunities clause of Article IV, § 2. Id. at 200. See analysis under "State Citizenship: Privileges and Immunities," supra.

569 410 U.S. at 191-92. "[T]he medical judgment may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman's age—relevant to the well-being of the patient. All these factors may relate to health." Id. at 192. Presumably this discussion applies to the Court's ruling in Roe holding that even in the third trimester the woman may not be forbidden to have an abortion if it is necessary to preserve her health as well as her life, 410 U.S. at 163-64, a holding which is unelaborated in the opinion. See also United States v. Vuitch, 402 U.S. 62 (1971).

After the decision in Roe, various states attempted to limit access to this newly found right, such as by requiring spousal or parental consent to obtain an abortion.570 The Court, however, held that (1) requiring spousal consent was an attempt by the State to delegate a veto power over the decision of the woman and her doctor that the State itself could not exercise,571 (2) that no significant state interests justified the imposition of a blanket parental consent requirement as a condition of the obtaining of an abortion by an unmarried minor during the first 12 weeks of pregnancy,572 and (3) that a criminal provision requiring the attending physician to exercise all care and diligence to preserve the life and health of the fetus without regard to the stage of viability was inconsistent with Roe.573 The Court did sustain provisions that required the woman's written consent to an abortion with assurances that it is informed and freely given, and the Court also upheld mandatory reporting and record keeping for public health purposes with adequate assurances of confidentiality. Another provision that barred the use of the most commonly used method of abortion after the first 12 weeks of pregnancy was declared unconstitutional since in the absence of another comparably safe technique it did not qualify as a reasonable protection of maternal health and it instead operated to deny the vast majority of abortions after the first 12 weeks.574

570 Planned Parenthood v. Danforth, 428 U.S. 52 (1976). See also Bellotti v. Baird, 443 U.S. 622 (1979) (parental consent to minor's abortion); Colautti v. Franklin, 439 U.S. 379 (1979) (imposition on doctor's determination of viability of fetus and obligation to take life-saving steps); Singleton v. Wulff, 428 U.S. 106 (1976) (standing of doctors to litigate right of patients to Medicaid-financed abortions); Bigelow v. Virginia, 421 U.S. 809 (1975) (ban on newspaper ads for abortions); Connecticut v. Menillo, 423 U.S. 9 (1975) (state ban on performance of abortion by "any person" may constitutionally be applied to prosecute nonphysicians performing abortions).

571 Planned Parenthood v. Danforth, 428 U.S. 52, 67-72 (1976). The Court recognized the husband's interests and the state interest in promoting marital harmony. But the latter was deemed not served by the requirement, and, since when the spouses disagree on the abortion decision one has to prevail, the Court thought the person who bears the child and who is the more directly affected should be the one to prevail. Justices White and Rehnquist and Chief Justice Burger dissented. Id. at 92.

572 428 U.S. at 72-75. Minors have rights protected by the Constitution, but the States have broader authority to regulate their activities than those of adults. Here, the Court perceived no state interest served by the requirement that overcomes the woman's right to make her own decision; it emphasized that it was not holding that every minor, regardless of age or maturity, could give effective consent for an abortion. Justice Stevens joined the other dissenters on this part of the holding. Id. at 101. In Bellotti v. Baird, 443 U.S. 622 (1979), eight Justices agreed that a parental consent law, applied to a mature minor found to be capable of making, and having made, an informed and reasonable decision to have an abortion, was void but split on the reasoning. Four Justices would hold that neither parents nor a court could be given an absolute veto over a mature minor's decision, while four others would hold that if parental consent is required the State must afford an expeditious access to court to review the parental determination and set it aside in appropriate cases. In H. L. v. Matheson, 450 U.S. 398 (1981), the Court upheld, as applied to an unemancipated minor living at home and dependent on her parents, a statute requiring a physician, "if possible," to notify the parents or guardians of a minor seeking an abortion. The decisions leave open a variety of questions, addressed by some concurring and dissenting Justices, dealing with when it would not be in the minor's best interest to avoid notifying her parents and with the alternatives to parental notification and consent. In two 1983 cases the Court applied the Bellotti v. Baird standard for determining whether judicial substitutes for parental consent requirements permit a pregnant minor to demonstrate that she is sufficiently mature to make her own decision on abortion. Compare City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983) (no opportunity for case-by-case determinations); with Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476 (1983) (adequate individualized consideration).

573 Planned Parenthood v. Danforth, 428 U.S. 52, 81-84 (1976). A law requiring a doctor, subject to penal sanction, to determine if a fetus is viable or may be viable and to take steps to preserve the life and health of viable fetuses was held to be unconstitutionally vague. Colautti v. Franklin, 439 U.S. 379 (1979).

574 Planned Parenthood v. Danforth, 428 U.S. 52, 75-79 (1976).

In other rulings applying Roe, the Court struck down some requirements and upheld others. A requirement that all abortions performed after the first trimester be performed in a hospital was invalidated as imposing "a heavy, and unnecessary, burden on women's access to a relatively inexpensive, otherwise accessible, and [at least during the first few weeks of the second trimester] safe abortion procedure."575 The Court held, however, that a state may require that abortions be performed in hospitals or licensed outpatient clinics, as long as licensing standards do not "depart from accepted medical practice."576 Various "informed consent" requirements were struck down as intruding upon the discretion of the physician, and as being aimed at discouraging abortions rather than at informing the pregnant woman's decision.577 The Court also invalidated a 24-hour waiting period following a woman's written, informed consent.578

575 City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 438 (1983); Accord, Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476 (1983). The Court in Akron relied on evidence that "dilation and evacuation" (D&E) abortions performed in clinics cost less than half as much as hospital abortions, and that common use of the D&E procedure had "increased dramatically" the safety of second trimester abortions in the 10 years since Roe v. Wade. 462 U.S. at 435-36.

576 Simopoulos v. Virginia, 462 U.S. 506, 516 (1983).

577 City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 444- 45 (1983); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986). In City of Akron, the Court explained that while the state has a legitimate interest in ensuring that the woman's consent is informed, it may not demand of the physician "a recitation of an inflexible list of information" unrelated to the particular patient's health, and, for that matter, may not demand that the physician rather than some other qualified person render the counseling. City of Akron, 462 U.S. 416, 448-49 (1983).

578 City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 450- 51 (1983). But see Hodgson v. Minnesota, 497 U.S. 417 (1990) (upholding a 48-hour waiting period following notification of parents by a minor).

On the other hand, the Court has upheld a requirement that tissue removed in clinic abortions be submitted to a pathologist for examination, since the same requirements were imposed for in-hospital abortions and for almost all other in-hospital surgery.579 Also,

the Court upheld a requirement that a second physician be present at abortions performed after viability in order to assist in saving the life of the fetus.580 Further, the Court refused to extend Roe to require States to pay for abortions for the indigent, holding that neither due process nor equal protection requires government to use public funds for this purpose.581

The equal protection discussion in the public funding case bears closer examination because of its significance for later cases. The equal protection question arose because public funds were being made available for medical care to indigents, including costs attendant to child birth, but not for expenses associated with abortions. Admittedly, discrimination based on a non-suspect class such as indigents does not generally compel strict scrutiny. However, the question arose as to whether such a distinction impinged upon the right to abortion, and thus should be subjected to heightened scrutiny. The Court rejected this argument and used a rational basis test, noting that the condition that was a barrier to getting an abortion—indigency—was not created or exacerbated by the government.

In reaching this finding the Court held that, while a state-created obstacle need not be absolute to be impermissible, it must at a minimum "unduly burden" the right to terminate a pregnancy. And, the Court held, to allocate public funds so as to further a state interest in normal childbirth does not create an absolute obstacle to obtaining and does not unduly burden the right.582 What is interesting about this holding is that the "undue burden" standard was to take on new significance when the Court began raising questions about the scope and even the legitimacy of Roe.

579 Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476, 486-90 (1983).

580 462 U.S. at 482-86, 505.

581 Maher v. Roe, 432 U.S. 464 (1977); Harris v. McRae, 448 U.S. 297 (1980). See also Beal v. Doe, 432 U.S. 438 (1977) (states are not required by federal law to fund abortions); Harris v. McRae, 448 U.S. at 306-11 (same). The state restriction in Maher, 432 U.S. at 466, applied to nontheraputic abortions, whereas the federal law barred funding for most medically necessary abortions as well, a distinction the Court deemed irrelevant, Harris, 448 U.S. at 323, although it provided Justice Stevens with the basis for reaching different results. Id. at 349 (dissenting).

582 "An indigent woman who desires an abortion suffers no disadvantage as a consequence of Connecticut's decision to fund childbirth; she continues as before to be dependent on private sources for the services she desires. The State may have made childbirth a more attractive alternative, thereby influencing the woman's decision, but it has imposed no restriction on access to abortions that was not already there." Maher, 432 U.S. at 469-74 (the quoted sentence is at 474); Harris, 448 U.S. at 321-26. Justices Brennan, Marshall, and Blackmun dissented in both cases and Justice Stevens joined them in Harris. Applying the same principles, the Court held that a municipal hospital could constitutionally provide hospital services for indi-gent women for childbirth but deny services for abortion. Poelker v. Doe, 432 U.S. 519 (1977).

Although the Court expressly reaffirmed Roe v. Wade in 1983,583 its 1989 decision in Webster v. Reproductive Health Services584 signaled the beginning of a retrenchment. Webster upheld two aspects of a Missouri statute regulating abortions: a prohibition on the use of public facilities and employees to perform abortions not necessary to save the life of the mother; and a requirement that a physician, before performing an abortion on a fetus she has reason to believe has reached a gestational age of 20 weeks, make an actual viability determination.585 This retrenchment was also apparent in two 1990 cases in which the Court upheld both one-parent and two-parent notification requirements.586

Webster, however, exposed a split in the Court's approach to Roe v. Wade. The plurality opinion by Chief Justice Rehnquist, joined in that part by Justices White and Kennedy, was highly critical of Roe, but found no occasion to overrule it. Instead, the plurality's approach sought to water down Roe by applying a less stringent standard of review. For instance, the plurality found the viability testing requirement valid because it "permissibly furthers the State's interest in protecting potential human life."587 Justice O'Connor, however, concurred in the result based on her view that the requirement did not impose "an undue burden" on a woman's right to an abortion, while Justice Scalia's concurrence urged that Roe be overruled outright. Thus, when a Court majority later invalidated a Minnesota procedure requiring notification of both parents without judicial bypass, it did so because it did "not reasonably further any legitimate state interest."588

583 City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 419- 20 (1983). In refusing to overrule Roe v. Wade, the Court merely cited the principle of stare decisis. Justice Powell's opinion of the Court was joined by Chief Justice Burger, and by Justices Brennan, Marshall, Blackmun, and Stevens. Justice O'Connor, joined by Justices White and Rehnquist, dissented, voicing disagreement with the trimester approach and suggesting instead that throughout pregnancy the test should be the same: whether state regulation constitutes "unduly burdensome interference with [a woman's] freedom to decide whether to terminate her pregnancy." 462 U.S. at 452, 461. In the 1986 case of Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986), Justice White, joined by Justice Rehnquist, advocated overruling of Roe v. Wade, Chief Justice Burger thought Roe v. Wade had been extended to the point where it should be reexamined, and Justice O'Connor repeated misgivings expressed in her Akron dissent.

584 492 U.S. 490 (1989).

585 The Court declined to rule on several other aspects of Missouri's law, including a preamble stating that life begins at conception, and a prohibition on the use of public funds to encourage or counsel a woman to have a nontherapeutic abortion.

586 Ohio's requirement that one parent be notified of a minor's intent to obtain an abortion, or that the minor use a judicial bypass procedure to obtain the approval of a juvenile court, was approved. Ohio v. Akron Center for Reproductive Health, 497 U.S. 502 (1990). And, while the Court ruled that Minnesota's requirement that both parents be notified was invalid standing alone, the statute was saved by a judicial bypass alternative. Hodgson v. Minnesota, 497 U.S. 417 (1990).

587 492 U.S. at 519-20. Dissenting Justice Blackmun, joined by Justices Brennan and Marshall, argued that this "permissibly furthers" standard "completely disregards the irreducible minimum of Roe . . . that a woman has a limited fundamental constitutional right to decide whether to terminate a pregnancy," and instead balances "a lead weight" (the State's interest in fetal life) against a "feather" (a woman's liberty interest). Id. at 555, 556 n.11.

588 Hodgson v. Minnesota, 497 U.S. 417, 450 (1990).

Roe was not confronted more directly in Webster because the viability testing requirement, as characterized by the plurality, merely asserted a state interest in protecting potential human life after viability, and hence did not challenge Roe's 'trimester framework.589 Nonetheless, a majority of Justices appeared ready to reject a strict trimester approach. The plurality asserted a compelling state interest in protecting human life throughout pregnancy, rejecting the notion that the state interest "should come into existence only at the point of viability;"590 Justice O'Connor repeated her view that the trimester approach is "problematic;"591 and, as mentioned, Justice Scalia would have done away with Roe altogether.

Three years later, however, the Court invoked principles of stare decisis to reaffirm Roe's "essential holding," although it had by now abandoned the trimester approach and adopted Justice O'Connor's "undue burden" test and Roe's "essential holding."592 According to the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey,593 the right to abortion has three parts. "First is a recognition of the right of a woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child."

589 492 U.S. at 521. Concurring Justice O'Connor agreed that "no decision of this Court has held that the State may not directly promote its interest in potential life when viability is possible." Id. at 528.

590 492 U.S. at 519.

591 492 U.S. at 529. Previously, dissenting in City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 458 (1983), Justice O'Connor had suggested that the Roe trimester framework "is clearly on a collision course with itself. As the medical risks of various abortion procedures decrease, the point at which the State may regulate for reasons of maternal health is moved further forward to actual childbirth. As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception."

592 It was a new alignment of Justices that restated and preserved Roe. Joining Justice O'Connor in a jointly authored opinion adopting and applying Justice O'Connor's "undue burden" analysis were Justices Kennedy and Souter. Justices Blackmun and Stevens joined parts of the plurality opinion, but dissented from other parts. Justice Stevens would not have abandoned trimester analysis, and would have invalidated the 24-hour waiting period and aspects of the informed consent requirement. Justice Blackmun, author of the Court's opinion in Roe, asserted that "the right to reproductive choice is entitled to the full protection afforded by this Court before Webster," id. at 923, and would have invalidated all of the challenged provisions. Chief Justice Rehnquist, joined by Justices White, Scalia, and Thomas, would have overruled Roe and upheld all challenged aspects of the Pennsylvania law.

593 505 U.S. 833, 846 (1992).

This restatement of Roe's essentials, recognizing a legitimate state interest in protecting fetal life throughout pregnancy, necessarily eliminated the rigid trimester analysis permitting almost no regulation in the first trimester. Viability, however, still marked "the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions,"594 but less burdensome regulations could be applied before viability. "What is at stake," the three-Justice plurality asserted, "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 . . . 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." Thus, unless an undue burden is imposed, states may adopt measures "designed to persuade [a woman] to choose childbirth over abortion."595

594 505 U.S. 833, 860 (1992).

595 505 U.S. at 877-78. Application of these principles in Casey led the Court to uphold overrule some precedent, but to invalidate arguably the most restrictive provision. The four provisions challenged which were upheld included a narrowed definition of "medical emergency" (which controlled exemptions from the Act's limitations), record keeping and reporting requirements, an informed consent and 24-hour waiting period requirement; and a parental consent requirement, with possibility for judicial bypass, applicable to minors. The provisions which was invalidated as an undue burden on a woman's right to an abortion was a spousal notification requirement.

Casey did, however, overturn earlier decisions striking down informed consent and 24-hour waiting periods.596 Given the state's legitimate interests in protecting the life of the unborn and the health of the potential mother, and applying "undue burden" analysis, the three-Justice plurality found these requirements permissible.597 The Court also upheld application of an additional requirement that women under age 18 obtain the consent of one parent or avail themselves of a judicial bypass alternative.

On the other hand, the Court598 distinguished Pennsylvania's spousal notification provision as constituting an undue burden on a woman's right to choose an abortion. "A State may not give to a man the kind of dominion over his wife that parents exercise over their children" (and that men exercised over their wives at common law).599 Although there was an exception for a woman who believed that notifying her husband would subject her to bodily injury, this exception was not broad enough to cover other forms of abusive retaliation, e.g., psychological intimidation, bodily harm to children, or financial deprivation. To require a wife to notify her husband in spite of her fear of such abuse would unduly burden the wife's liberty interest as an individual to decide whether to bear a child.

The passage of various state laws restricting so-called "partial birth abortions" gave observers an opportunity to see if the "undue burden" standard was in fact likely to lead to a major retrenchment in abortion regulation. In Stenberg v. Carhart,600 the Court reviewed a Nebraska statute which forbade "partially delivering vaginally a living unborn child before killing the unborn child and completing the delivery." The Court noted that the prohibition appeared to apply to abortions performed throughout a pregnancy, and that the lone exception was for an abortion necessary to preserve the life of the mother.601 Thus the statute brought into question both the distinction maintained in Casey between pre-viability and post-viability abortions, and the oft-repeated language from Roe, which provides that abortion restrictions must contain exceptions for situations where there is a threat to either the life or the health of a pregnant woman.602 The Court, however, reaffirmed these central tenets of its abortion decisions, striking down the Nebraska law because its possible application to pre-viability abortions was too broad and the exception for threats to the life of the mother was too narrow.*

Only seven years later, however, the Supreme Court decided Gonzales v. Carhart,4 which, while not formally overrul- ing Stenberg, appeared to signal a change in how the Court would analyze limitations on abortion procedures. Of perhaps the greatest significance is that Gonzales was the first case in which the Court upheld a statutory prohibition on a particular method of abortion. In Gonzales, the Court, by a 5-4 vote,5 upheld a federal criminal statute that prohibited an overt act to “kill” a fetus where it had been intentionally “deliver[ed] . . . [so that] in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother.”6 The Court distinguished this federal statute from the Nebraska statute that it had struck down in Stenberg, holding that the federal statute applied only to the intentional performance of the less-common “intact dilation and excavation.” The Court found that the federal statute was not unconstitutionally vague because it provided “anatomical landmarks” that provided doctors with a reasonable opportunity to know what conduct it prohibited.7 Further, the scienter requirement (that delivery of the fetus to these landmarks before fetal demise be intentional) was found to alleviate vagueness concerns.8

In a departure from the reasoning of Stenberg, the Court held that the failure of the federal statute to provide a health exception9 was justified by congressional findings that such a procedure was not necessary to protect the health of a mother. Noting that the Court has given “state and federal legislatures wide discretion to pass legislation in areas where there is medi cal and scientific uncertainty,” the Court held that, at least in the context of a facial challenge, such an exception was not needed where “[t]here is documented medical disagreement whether the Act’s prohibition would ever impose significant health risks on women.”10 The Court did, however, leave open the possibility that as-applied challenges could still be made in individual cases.11

As in Stenberg, the prohibition considered in Gonzales extended to the performance of an abortion before the fetus was viable, thus directly raising the question of whether the statute imposed an “undue burden” on the right to obtain an abortion. Unlike the statute in Stenberg, however, the ban in Gonzales was limited to the far less common “intact dilation and excavation” procedure, and consequently did not impose the same burden as the Nebraska statute. The Court also found that there was a “rational basis” for the limitation, including governmental interests in the expression of “respect for the dignity of human life,” “protecting the integrity and ethics of the medical profession,” and the creation of a “dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect a late-term abortion.”12

596 City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983) (invalidating "informed consent" and 24-hour waiting period); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986) (invalidating informed consent requirement).

597 Requiring informed consent for medical procedures was found to be both commonplace and reasonable, and, in the absence of any evidence of burden, the state could require that information relevant to informed consent be provided by a physician rather than an assistant. The 24-hour waiting period was approved both in theory (it being reasonable to assume "that important decisions will be more informed and deliberate if they follow some period of reflection") and in practice (in spite of "troubling" findings of increased burdens on poorer women who must travel significant distances to obtain abortions, and on all women who must twice rather than once brave harassment by anti-abortion protesters). 505 U.S. at 885-87.

598 The plurality Justices were joined in this part of their opinion by Justices Blackmun and Stevens.

599 505 U.S. at 898.

600 Stenberg v. Carhart 530 U.S. 914 (2000) 530 U.S. 914 (2000).

601 The Nebraska law provided that such procedures could be performed where "necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself." Neb. Rev. Stat. Ann. § 28- 328(1).

602 Roe v. Wade, 410 U.S. 113, 164 (1973).

* As to the question of whether an abortion statute that is unconstitutional in some instances should be struck down in application only or in its entirety, see Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320 (2006) (challenge to parental notification restrictions based on lack of emergency health exception remanded to determine legislative intent regarding severability of those applications).

4 550 U.S. 124 (2007).

5 Justice Kennedy wrote the majority opinion, joined by Justices Roberts, Scalia, Thomas, and Alito, while Justice Ginsburg authored a dissenting opinion, which was joined by Justices Steven, Souter and Breyer. Justice Thomas also filed a concurring opinion, joined by Justice Scalia, calling for overruling Casey and Roe.

6 18 U.S.C. § 1531(b)(1)(A). The penalty imposed on a physician for a violation of the statute was a fine and/or imprisonment for not more than 2 years. In addition, the physician could be subject to a civil suit by the father (or maternal grandparents, where the mother is a minor) for money damages for all injuries, psychological and physical, occasioned by the violation of this section, and statutory damages equal to three times the cost of the partial-birth abortion. 7 550 U.S. at 150.

8 550 U.S. at 148-150.

9 As in Stenberg, the statute provided an exception for threats to the life of a woman.

10 550 U.S. at 162. Arguably, this holding overruled Stenberg insofar as Stenberg had allowed a facial challenge to the failure of Nebraska to provide a health exception to its prohibition on intact dilation and excavation abortions. 530 U.S. at 929-38.

11 550 U.S. at 168.

12 550 U.S. at 160.

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