Does the Constitution, through the Due Process Clause of the Fourteenth Amendment, continue to protect a woman's right to terminate her pregnancy before viability, and do Pennsylvania's informed consent, 24-hour waiting period, parental consent, spousal notification, and reporting requirements impose an unconstitutional undue burden on that right?

Pennsylvania enacted the Abortion Control Act of 1982, amended in 1988 and 1989, which regulated abortion in five challenged respects. The Act required a woman to give informed consent and receive specified information, including the probable gestational age of the fetus and the availability of state-published materials on fetal development, childbirth assistance, child support, and adoption, at least 24 hours before an abortion. A minor needed the informed consent of one parent, with a judicial bypass available. A married woman had to sign a statement that she had notified her husband of the intended abortion, subject to exceptions such as spousal sexual assault reported to authorities, an inability to locate the husband, a husband who was not the father, and a reasonable belief that notification would cause bodily injury. Facilities had to file detailed reports on each abortion performed, including a married woman's reason for failing to notify her husband. The Act exempted compliance with the consent, parental consent, and notice requirements in a defined medical emergency. Five abortion clinics and a physician, representing himself and a class of physicians providing abortion services, challenged the provisions as facially unconstitutional before they took effect. The District Court heard extensive evidence, including testimony and findings about domestic violence and its effect on women's ability to notify their husbands.

Before the Act took effect, the petitioners, five abortion clinics and a physician representing himself and a class of abortion-providing physicians, sued in the United States District Court for the Eastern District of Pennsylvania seeking declaratory and injunctive relief, claiming each challenged provision was facially unconstitutional. The District Court entered a preliminary injunction against enforcement. After a three-day bench trial, it held all the challenged provisions unconstitutional and entered a permanent injunction. 744 F. Supp. 1323 (E.D. Pa. 1990). The Court of Appeals for the Third Circuit affirmed in part and reversed in part, applying Justice O'Connor's undue burden standard. It upheld all the provisions except the husband notification requirement. 947 F.2d 682 (1991). The Supreme Court granted certiorari on cross-petitions: the clinics' petition (No. 91-744) and Pennsylvania's petition (No. 91-902), challenging the spousal notice ruling.

(O'Connor, J.)

Yes as to the first question: the essential holding of Roe v. Wade is retained and reaffirmed. A woman has a constitutionally protected liberty to terminate her pregnancy before viability, and the Court upheld all the challenged provisions except spousal notification, which it held an undue burden.

The right derives from the substantive component of the Due Process Clause of the Fourteenth Amendment, which protects intimate and personal choices central to dignity and autonomy, including decisions about marriage, procreation, contraception, and family. Roe's essential holding has three parts: a woman may choose abortion before viability without undue State interference; the State may restrict postviability abortions if exceptions protect the woman's life and health; and the State has legitimate interests from the outset in protecting maternal health and potential life.

Stare decisis compels reaffirmation. Roe has not proved unworkable, and people have relied on the availability of abortion in organizing their lives and in enabling women's equal participation in economic and social life. No doctrinal developments have undermined Roe, and changes in medical facts affect only the timing of viability, not the central holding. Unlike Lochner and Plessy, overruled because facts or their understanding had changed, nothing has changed here. Overruling a decision resolving an intensely divisive controversy under political pressure would severely damage the Court's legitimacy.

The Court rejects Roe's rigid trimester framework as misconceiving the woman's interest and undervaluing the State's interest in potential life. The governing standard is undue burden: a regulation is invalid if its purpose or effect is to place a substantial obstacle in the path of a woman seeking a previability abortion. The State may take measures, including informing and persuading, to encourage childbirth over abortion, so long as they do not impose a substantial obstacle. Health regulations are valid unless they present a substantial obstacle.

Application: the medical emergency definition, as construed by the Court of Appeals, is valid. Informed consent requirements, including truthful, nonmisleading information on gestational age, risks, and alternatives, and the physician-only requirement, are valid, and Akron I and Thornburgh are overruled to the contrary. The 24-hour waiting period is valid on this record, because a particular burden on some women is not necessarily a substantial obstacle. Parental consent with a judicial bypass is valid. Reporting requirements are valid except the requirement that a married woman's reason for not notifying her husband be reported.

Spousal notification is invalid. The analysis focuses on the group for whom the law is a restriction: married women who wish to abort without notifying their husbands and who fall outside the exceptions. For many women facing abuse, notice is a substantial obstacle and functions as a husband's veto, resting on an outdated common-law view of marriage.

Concurrence/Dissent (Stevens, J.) Stevens concurs that stare decisis requires retaining Roe and that the spousal notice requirement is unconstitutional, but disagrees with the Court's rejection of Roe's trimester framework. The fetus is not a person, and the State's interest in potential life, which is secular and humanitarian, does not justify regulation designed to influence a woman's decision before viability. The mandated state-message counseling and the 24-hour waiting period are undue burdens because they rest on outmoded assumptions about women's decisionmaking capacity or a presumption that the abortion decision is wrong.

Concurrence/Dissent (Blackmun, J.) Blackmun joins the reaffirmation of Roe's central holding and the invalidation of spousal notice, but would retain strict scrutiny and the trimester framework. Abortion restrictions burden bodily integrity, privacy, and gender equality. Applying strict scrutiny, the content-based counseling, waiting period, parental consent in-person requirement, and reporting provisions must also fall. He warns that Roe's survival depends on a single vote and that the opinions of the Chief Justice and Justice Scalia would extinguish the right.

Concurrence/Dissent (Rehnquist, C.J.) Rehnquist, joined by White, Scalia, and Thomas, concurs in the judgment only as to parts. Roe was wrongly decided and should be overruled. Abortion is not a fundamental right: it is unlike marriage, procreation, and contraception because it terminates potential life, and it lacks deep historical roots. The joint opinion's stare decisis analysis is unconvincing and unprincipled, and its legitimacy rationale is novel and contrary to precedent. The undue burden standard is created from whole cloth and is unworkable. The proper standard is rational basis, under which all the Pennsylvania provisions, including spousal notice, are constitutional.

Concurrence/Dissent (Scalia, J.) Scalia, joined by Rehnquist, White, and Thomas, concurs in the judgment in part. The Constitution says nothing about abortion and tradition has permitted its regulation, so the issue belongs to the democratic process and rational basis review applies. Roe was not the product of reasoned judgment, the undue burden standard is standardless and manipulable, and the joint opinion's selective stare decisis is contrived. Roe inflamed rather than resolved the abortion controversy. The Court should leave the area to the States.