Akron v. Akron Center for Reproductive Health
462 U.S. 416
Case Year: 1983
Case Ruling: 6-3, Reversed
Opinion Justice: Powell
Court Opinion Joiner(s):
1st Concurring Opinion
1st Dissenting Opinion
Joiner(s): Rehnquist, White
2nd Concurring Opinion
2nd Dissenting Opinion
3rd Concurring Opinion
3rd Dissenting Opinion
Other Concurring Opinions:
After studying the Supreme Court's post- Roe decisions, such as Planned Parenthood v. Danforth (1976) prolife groups formulated "national model legislation," which would restrict the right to obtain an abortion, while simultaneously fitting within the contours of existing doctrine.1 One of their first successes came in 1978 in Akron, Ohio, where the city council voted to adopt a version of this model law. The new Akron ordinance contained the following provisions:
Hospital requirement. All post-first trimester abortions must be performed in a hospital (§1870.03).
Consent for minors. If a minor is under the age of fifteen, she must obtain the informed written consent of a parent or a court before a physician can perform an abortion (§1870.05(B)).
Informed consent. A woman's consent to abortion services must be informed. That is, a physician must tell her (1) the number of weeks she is pregnant; (2) that the "unborn child is a human life form from the moment of conception"; (3) about the "anatomical and physiological characteristics of the particular unborn child" at the gestational point of development at which time the abortion is to be performed; (4) that the "unborn child" may be viable if "more than 22 weeks have elapsed from the time of conception"; and (5) about public and private adoption agencies (§1870.06).
A twenty-four-hour waiting period. A physician cannot perform an abortion until twenty-four hours after the pregnant woman signs a consent form (§1870.07).
Disposal of remains. Doctors who perform abortion "shall insure that the remains of the unborn child are disposed of in a humane and sanitary manner" (§1870.16).
A month before the ordinance was to take effect, ACLU attorneys brought suit on behalf of an abortion clinic, the Akron Center for Reproductive Health. They argued that the provisions interfered with a woman's right to obtain an abortion without sufficiently compelling reasons. After a federal district court and court of appeals struck down most of the ordinance's provisions (the only one upheld by the court of appeals was the hospitalization requirement), the city appealed to the U.S. Supreme Court.
In its appeal, the city was joined by the Reagan administration's solicitor general, Rex E. Lee. According to one source, some members of the administration "hounded" Lee into asking the justices to use the Akron case to overruleRoe.2 Lee did not go quite that far. In his amicus curiae brief, Lee advanced two arguments. First, on abortion, he articulated a constitutional standard that he said derived from previous Court decisions. His reading of Roe's progeny led him to conclude that the justices had never really "applied" Roe's "sweeping" language regarding first-trimester abortions: from Danforth on, they had made exceptions. Instead, he argued that the Court "has repeatedly adopted an 'unduly burdensome' analysis...." That is, the Court had permitted state regulations of abortion as long as they did not "unduly burden" that decision. Second, Lee proposed a way to distinguish an unduly burdensome regulation from a regulation that was simply burdensome. In his view, the justices should defer to legislatures:
Whether or not a particular regulation "unduly burdens" the abortion decision is far from self-evident. In light of the breadth and the ambiguity of the "unduly burdensome" standard--and in the interest of preserving the difference between what courts do and what legislatures do--this Court should clarify that in applying that standard on a case-by-case basis courts should be mindful that (1) at their root, the issues to which the "unduly burdensome" test is applied are policy issues, and different segments of our society have strong competing views concerning them; (2) the legislature has already considered the competing arguments, made the necessary factual inquiries, and reached a decision; and (3) the net effect of holding the legislative product unconstitutional is that those who succeeded in persuading the legislature of the soundness of their policy viewpoint are deprived of their legislative victory, whereas the legislative losers become the winners. These realities counsel that, in deciding which legislative policy choices are "unduly burdensome" and which are not, the Court should accord heavy deference to the legislative judgment.
JUSTICE POWELL DELIVERED THE OPINION OF THE COURT.
[ Akron Center comes] to us a decade after we held in Roe v. Wade (1973) that the right of privacy, grounded in the concept of personal liberty guaranteed by the Constitution, encompasses a woman's right to decide whether to terminate her pregnancy. Legislative responses to the Court's decision have required us on several occasions, and again today, to define the limits of a State's authority to regulate the performance of abortions. And arguments continue to be made, in these cases as well, that we erred in interpreting the Constitution. Nonetheless, the doctrine of stare decisis, while perhaps never entirely persuasive on a constitutional question, is a doctrine that demands respect in a society governed by the rule of law.3 We respect it today, and reaffirm Roe v. Wade....
In Roe v. Wade the Court held that after the end of the first trimester of pregnancy the State's interest becomes compelling, and it may "regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health."...
We reaffirm today... that a State's interest in health regulation becomes compelling at approximately the end of the first trimester. The existence of a compelling state interest in health, however, is only the beginning of the inquiry. The State's regulation may be upheld only if it is reasonably designed to further that state interest.... And the Court in Roe did not hold that it always is reasonable for a State to adopt an abortion regulation that applies to the entire second trimester. A State necessarily must have latitude in adopting regulations of general applicability in this sensitive area. But if it appears that during a substantial portion of the second trimester the State's regulation "depart[s] from accepted medical practice,"... the regulation may not be upheld simply because it may be reasonable for the remaining portion of the trimester. Rather, the State is obligated to make a reasonable effort to limit the effect of its regulations to the period in the trimester during which its health interest will be furthered.
There can be no doubt that [§]1870.03's second-trimester hospitalization requirement places a significant obstacle in the path of women seeking an abortion. A primary burden created by the requirement is additional cost to the woman. The Court of Appeals noted that there was testimony that a second-trimester abortion costs more than twice as much in a hospital as in a clinic.... (in-hospital abortion costs $850-$900, whereas a dilatation-and-evacuation (D&E) abortion performed in a clinic costs $350-$400.) Moreover, the court indicated that second-trimester abortions were rarely performed in Akron hospitals.... (only nine second-trimester abortions were performed in Akron hospitals in the year before trial.) Thus, a second-trimester hospitalization requirement may force women to travel to find available facilities, resulting in both financial expense and additional health risk. It therefore is apparent that a second-trimester hospitalization requirement may significantly limit a woman's ability to obtain an abortion.
Akron does not contend that [§]1870.03 imposes only an insignificant burden on women's access to abortion, but rather defends it as a reasonable health regulation. This position had strong support at the time of Roe v. Wade, as hospitalization for second-trimester abortions was recommended by the American Public Health Association (APHA)... and the American College of Obstetricians and Gynecologists (ACOG). Since then, however, the safety of second-trimester abortions has increased dramatically. The principal reason is that the D&E procedure is now widely and successfully used for second-trimester abortions. The Court of Appeals found that there was "an abundance of evidence that D&E is the safest method of performing post-first trimester abortions today."...
These developments, and the professional commentary supporting them, constitute impressive evidence that--at least during the early weeks of the second trimester--D&E abortions may be performed as safely in an outpatient clinic as in a full-service hospital. We conclude, therefore, that "present medical knowledge,"... convincingly undercuts Akron's justification for requiring that all second-trimester abortions be performed in a hospital....
We turn next to §1870.05(B), the provision prohibiting a physician from performing an abortion on a minor pregnant woman under the age of 15 unless he obtains "the informed written consent of one of her parents or her legal guardian" or unless the minor obtains "an order from a court having jurisdiction over her that the abortion be performed or induced."...
The relevant legal standards are not in dispute. The Court has held that "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."... InBellotti v. Baird (1979) ( Bellotti II), a majority of the Court indicated that a State's interest in protecting immature minors will sustain a requirement of a consent substitute, either parental or judicial.... The Bellotti II plurality cautioned, however, that the State must provide an alternative procedure whereby a pregnant minor may demonstrate that she is sufficiently mature to make the abortion decision herself or that, despite her immaturity, an abortion would be in her best interests.... Under these decisions, it is clear that Akron may not make a blanket determination that all minors under the age of 15 are too immature to make this decision or that an abortion never may be in the minor's best interests without parental approval....
... We therefore affirm the Court of Appeals' judgment that [§]1870.05(B) is unconstitutional.
The Akron ordinance provides that no abortion shall be performed except 'with the informed written consent of the pregnant woman, ... given freely and without coercion."...
The validity of an informed consent requirement thus rests on the State's interest in protecting the health of the pregnant woman. The decision to have an abortion has "implications far broader than those associated with most other kinds of medical treatment,"... and thus the State legitimately may seek to ensure that it has been made "in the light of all attendant circumstances--psychological and emotional as well as physical--that might be relevant to the well-being of the patient."... This does not mean, however, that a State has unreviewable authority to decide what information a woman must be given before she chooses to have an abortion. It remains primarily the responsibility of the physician to ensure that appropriate information is conveyed to his patient, depending on her particular circumstances. Danforth's recognition of the State's interest in ensuring that this information be given will not justify abortion regulations designed to influence the woman's informed choice between abortion or childbirth.
Viewing the city's regulations in this light, we believe that [§]1870.06(B) attempts to extend the State's interest in ensuring "informed consent" beyond permissible limits. First, it is fair to say that much of the information required is designed not to inform the woman's consent but rather to persuade her to withhold it altogether. Subsection (3) requires the physician to inform his patient that "the unborn child is a human life from the moment of conception," a requirement inconsistent with the Court's holding in Roe v. Wade that a State may not adopt one theory of when life begins to justify its regulation of abortions.... Moreover, much of the detailed description of "the anatomical and physiological characteristics of the particular unborn child" required by subsection (3) would involve at best speculation by the physician....
The Akron ordinance prohibits a physician from performing an abortion until 24 hours after the pregnant woman signs a consent form. [§]1870.07. The District Court upheld this provision on the ground that it furthered Akron's interest in ensuring "that a woman's abortion decision is made after careful consideration of all the facts applicable to her particular situation."... The Court of Appeals reversed, finding that the inflexible waiting period had "no medical basis," and that careful consideration of the abortion decision by the woman "is beyond the state's power to require."... We affirm the Court of Appeals' judgment....
We find that Akron has failed to demonstrate that any legitimate state interest is furthered by an arbitrary and inflexible waiting period. There is no evidence suggesting that the abortion procedure will be performed more safely. Nor are we convinced that the State's legitimate concern that the woman's decision be informed is reasonably served by requiring a 24-hour delay as a matter of course. The decision whether to proceed with an abortion is one as to which it is important to "affor[d] the physician adequate discretion in the exercise of his medical judgment."... In accordance with the ethical standards of the profession, a physician will advise the patient to defer the abortion when he thinks this will be beneficial to her. But if a woman, after appropriate counseling, is prepared to give her written informed consent and proceed with the abortion, a State may not demand that she delay the effectuation of that decision.
Section 1870.16 of the Akron ordinance requires physicians performing abortions to "insure that the remains of the unborn child are disposed of in a humane and sanitary manner." The Court of Appeals found that the word "humane" was impermissibly vague as a definition of conduct subject to criminal prosecution. The court invalidated the entire provision, declining to sever the word "humane" in order to uphold the requirement that disposal be "sanitary."... We affirm this judgment.
Akron contends that the purpose of [§]1870.16 is simply "'to preclude the mindless dumping of aborted fetuses on garbage piles.'"... It is far from clear, however, that this provision has such a limited intent. The phrase "humane and sanitary" does, as the Court of Appeals noted, suggest a possible intent to "mandate some sort of 'decent burial' of an embryo at the earliest stages of formation."... This level of uncertainty is fatal where criminal liability is imposed.... Because §1870.16 fails to give a physician "fair notice that his contemplated conduct is forbidden,"... we agree that it violates the Due Process Clause.
We affirm the judgment of the Court of Appeals invalidating those sections of Akron's "Regulations of Abortions" ordinance that deal with parental consent, informed consent, a 24-hour waiting period, and the disposal of fetal remains. The remaining portion of the judgment, sustaining Akron's requirement that all second-trimester abortions be performed in a hospital, is reversed.
It is so ordered.
JUSTICE O'CONNOR, WITH WHOM JUSTICE WHITE AND JUSTICE REHNQUIST JOIN, DISSENTING.
In Roe v. Wade (1973) the Court held that the "right of privacy ... founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action ... is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."... The parties in these cases have not asked the Court to re-examine the validity of that holding and the court below did not address it. Accordingly, the Court does not re-examine its previous holding. Nonetheless, it is apparent from the Court's opinion that neither sound constitutional theory nor our need to decide cases based on the application of neutral principles can accommodate an analytical framework that varies according to the "stages" of pregnancy, where those stages, and their concomitant standards of review, differ according to the level of medical technology available when a particular challenge to state regulation occurs. The Court's analysis of the Akron regulations is inconsistent both with the methods of analysis employed in previous cases dealing with abortion, and with the Court's approach to fundamental rights in other areas.
Our recent cases indicate that a regulation imposed on "a lawful abortion 'is not unconstitutional unless it unduly burdens the right to seek an abortion.'" Maher v. Roe (1977).... See also Harris v. McRae (1980). In my view, this "unduly burdensome" standard should be applied to the challenged regulations throughout the entire pregnancy without reference to the particular "stage" of pregnancy involved. If the particular regulation does not "unduly burde[n]" the fundamental right,... then our evaluation of that regulation is limited to our determination that the regulation rationally relates to a legitimate state purpose. Irrespective of what we may believe is wise or prudent policy in this difficult area, "the Constitution does not constitute us as 'Platonic Guardians' nor does it vest in this Court the authority to strike down laws because they do not meet our standards of desirable social policy, 'wisdom,' or 'common sense.'"...
The trimester or "three-stage" approach adopted by the Court in Roe and, in a modified form, employed by the Court to analyze the regulations in these cases, cannot be supported as a legitimate or useful framework for accommodating the woman's right and the State's interests. The decision of the Court today graphically illustrates why the trimester approach is a completely unworkable method of accommodating the conflicting personal rights and compelling state interests that are involved in the abortion context.
As the Court indicates today, the State's compelling interest in maternal health changes as medical technology changes, and any health regulation must not "depart from accepted medical practice."... In applying this standard, the Court holds that "the safety of second-trimester abortions has increased dramatically" since 1973, when Roe was decided.... Although a regulation such as one requiring that all second-trimester abortions be performed in hospitals "had strong support" in 1973 "as a reasonable health regulation,"... this regulation can no longer stand because, according to the Court's diligent research into medical and scientific literature, the dilation and evacuation (D&E) procedure used in 1973 only for first-trimester abortions, "is now widely and successfully used for second-trimester abortions."... Further, the medical literature relied on by the Court indicates that the D&E procedure may be performed in an appropriate nonhospital setting for "at least ... the early weeks of the second trimester...." The Court then chooses the period of 16 weeks of gestation as that point at which D&E procedures may be performed safely in a nonhospital setting, and thereby invalidates the Akron hospitalization regulation.
It is not difficult to see that despite the Court's purported adherence to the trimester approach adopted in Roe, the lines drawn in that decision have now been "blurred" because of what the Court accepts as technological advancement in the safety of abortion procedure. The State may no longer rely on a "bright line" that separates permissible from impermissible regulation, and it is no longer free to consider the second trimester as a unit and weigh the risks posed by all abortion procedures throughout that trimester. Rather, the State must continuously and conscientiously study contemporary medical and scientific literature in order to determine whether the effect of a particular regulation is to "depart from accepted medical practice" insofar as particular procedures and particular periods within the trimester are concerned. Assuming that legislative bodies are able to engage in this exacting task, it is difficult to believe that our Constitution requires that they do it as a prelude to protecting the health of their citizens. It is even more difficult to believe that this Court, without the resources available to those bodies entrusted with making legislative choices, believes itself competent to make these inquiries and to revise these standards every time the American College of Obstetricians and Gynecologists (ACOG) or similar group revises its views about what is and what is not appropriate medical procedure in this area. Indeed, the ACOG Standards on which the Court relies were changed in 1982 after trial in the present cases. Before ACOG changed its Standards in 1982, it recommended that all mid-trimester abortions be performed in a hospital.... As today's decision indicates, medical technology is changing, and this change will necessitate our continued functioning as the nation's " ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States."...
Just as improvements in medical technology inevitably will move forward the point at which the State may regulate for reasons of maternal health, different technological improvements will move backward the point of viability at which the State may proscribe abortions except when necessary to preserve the life and health of the mother.
In 1973, viability before 28 weeks was considered unusual.... However, recent studies have demonstrated increasingly earlier fetal viability. It is certainly reasonable to believe that fetal viability in the first trimester of pregnancy may be possible in the not too distant future. Indeed, the Court has explicitly acknowledged that Roe left the point of viability "flexible for anticipated advancements in medical skill."...
The Roe framework, then, 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.... The Roe framework is inherently tied to the state of medical technology that exists whenever particular litigation ensues. Although legislatures are better suited to make the necessary factual judgments in this area, the Court's framework forces legislatures, as a matter of constitutional law, to speculate about what constitutes "accepted medical practice" at any given time. Without the necessary expertise or ability, courts must then pretend to act as science review boards and examine those legislative judgments.
The Court adheres to the Roe framework because the doctrine of stare decisis "demands respect in a society governed by the rule of law."... Although respect for stare decisis cannot be challenged, "this Court's considered practice [is] not to apply stare decisis as rigidly in constitutional as in nonconstitutional cases."... Although we must be mindful of the "desirability of continuity of decision in constitutional questions ... when convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment and not upon legislative action this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions."...
Even assuming that there is a fundamental right to terminate pregnancy in some situations, there is no justification in law or logic for the trimester framework adopted in Roe and employed by the Court today on the basis of stare decisis. For the reasons stated above, that framework is clearly an unworkable means of balancing the fundamental right and the compelling state interests that are indisputably implicated....
The fallacy inherent in the Roe framework is apparent: just because the State has a compelling interest in ensuring maternal safety once an abortion may be more dangerous than childbirth, it simply does not follow that the State has no interest before that point that justifies state regulation to ensure that first-trimester abortions are performed as safely as possible.
The state interest in potential human life is likewise extant throughout pregnancy. In Roe, the Court held that although the State had an important and legitimate interest in protecting potential life, that interest could not become compelling until the point at which the fetus was viable. The difficulty with this analysis is clear: potential life is no less potential in the first weeks of pregnancy than it is at viability or afterward. At any stage in pregnancy, there is the potential for human life. Although the Court refused to "resolve the difficult question of when life begins,"... the Court chose the point of viability--when the fetus is capable of life independent of its mother--to permit the complete proscription of abortion. The choice of viability as the point at which the state interest in potential life becomes compelling is no less arbitrary than choosing any point before viability or any point afterward. Accordingly, I believe that the State's interest in protecting potential human life exists throughout the pregnancy.
Although the State possesses compelling interests in the protection of potential human life and in maternal health throughout pregnancy, not every regulation that the State imposes must be measured against the State's compelling interests and examined with strict scrutiny. This Court has acknowledged that "the right in Roe v. Wade can be understood only by considering both the woman's interest and the nature of the State's interference with it. Roe did not declare an unqualified 'constitutional right to an abortion,'... Rather, the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy."... The Court and its individual Justices have repeatedly utilized the "unduly burdensome" standard in abortion cases....
The "unduly burdensome" standard is particularly appropriate in the abortion context because of the nature and scope of the right that is involved. The privacy right involved in the abortion context "cannot be said to be absolute."... Rather, the Roeright is intended to protect against state action "drastically limiting the availability and safety of the desired service," against the imposition of an "absolute obstacle" on the abortion decision,... or against "official interference" and "coercive restraint" imposed on the abortion decision.... That a state regulation may "inhibit" abortions to some degree does not require that we find that the regulation is invalid....
In determining whether the State imposes an "undue burden," we must keep in mind that when we are concerned with extremely sensitive issues, such as the one involved here, "the appropriate forum for their resolution in a democracy is the legislature. We should not forget that 'legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.'..." This does not mean that in determining whether a regulation imposes an "undue burden" on the Roe right we defer to the judgments made by state legislatures. "The point is, rather, that when we face a complex problem with many hard questions and few easy answers we do well to pay careful attention to how the other branches of Government have addressed the same problem." 4...
Section 1870.03 of the Akron ordinance requires that second-trimester abortions be performed in hospitals. The Court holds that this requirement imposes a "significant obstacle" in the form of increased costs and decreased availability of abortions,... and the Court rejects the argument offered by the State that the requirement is a reasonable health regulation under Roe....
For the reasons stated above, I find no justification for the trimester approach used by the Court to analyze this restriction. I would apply the "unduly burdensome" test and find that the hospitalization requirement does not impose an undue burden on that decision.
The Court's reliance on increased abortion costs and decreased availability is misplaced. As the city of Akron points out, there is no evidence in this case to show that the two Akron hospitals that performed second-trimester abortions denied an abortion to any woman, or that they would not permit abortion by the D&E procedure.... In addition, there was no evidence presented that other hospitals in nearby areas did not provide second-trimester abortions. Further, almost any state regulation, including the licensing requirements that the Court would allow,... inevitably and necessarily entails increased costs for any abortion....
The hospitalization requirement does not impose an undue burden, and it is not necessary to apply an exacting standard of review. Further, the regulation has a "rational relation" to a valid state objective of ensuring the health and welfare of its citizens....
Section 1870.05 of the Akron ordinance provides that no physician shall perform an abortion on a minor under 15 years of age unless the minor gives written consent, and the physician first obtains the informed written consent of a parent or guardian, or unless the minor first obtains "an order from a court having jurisdiction over her that the abortion be performed or induced." Despite the fact that this regulation has yet to be construed in the state courts, the Court holds that the regulation is unconstitutional because it is not "reasonably susceptible of being construed to create an 'opportunity for case-by-case evaluations of the maturity of pregnant minors.'"... I believe that the Court should have abstained from declaring the ordinance unconstitutional....
The Court invalidates the informed-consent provisions of [§]1870.06(B) and [§]1870.06(C) of the Akron ordinance....
We have approved informed-consent provisions in the past even though the physician was required to deliver certain information to the patient. In Danforth, the Court upheld a state informed-consent requirement because "[t]he 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 remainder of §1870.06(B) and §1870.06(C) impose no undue burden or drastic limitation on the abortion decision. The city of Akron is merely attempting to ensure that the decision to abort is made in light of that knowledge that the city deems relevant to informed choice. As such, these regulations do not impermissibly affect any privacy right under the Fourteenth Amendment.
Section 1870.07 of the Akron ordinance requires a 24-hour waiting period between the signing of a consent form and the actual performance of the abortion, except in cases of emergency.... The Court accepts the arguments made by Akron Center that the waiting period increases the costs of obtaining an abortion by requiring the pregnant woman to make two trips to the clinic, and increases the risks of abortion through delay and scheduling difficulties. The decision whether to proceed should be left to the physician's "'discretion in the exercise of his medical judgment.'"...
It is certainly difficult to understand how the Court believes that the physician-patient relationship is able to accommodate any interest that the State has in maternal physical and mental well-being in light of the fact that the record in this case shows that the relationship is nonexistent....
Assuming, arguendo, that any additional costs are such as to impose an undue burden on the abortion decision, the State's compelling interests in maternal physical and mental health and protection of fetal life clearly justify the waiting period.... The decision also has grave consequences for the fetus, whose life the State has a compelling interest to protect and preserve....
Finally, §1870.16 of the Akron ordinance requires that "[a]ny physician who shall perform or induce an abortion upon a pregnant woman shall insure that the remains of the unborn child are disposed of in a humane and sanitary manner." The Court finds this provision void for vagueness. I disagree.
... In light of the fact that the city of Akron indicates no intent to require that physicians provide "decent burials" for fetuses, and that "humane" is no more vague than the term "sanitary," the vagueness of which Akron Center does not question, I cannot conclude that the statute is void for vagueness.
For the reasons set forth above, I dissent from the judgment of the Court in these cases.
1. We adopt these facts and the discussion following the Akron excerpt from Epstein and Kobylka, The Supreme Court and Legal Change, 236-247.
2. Lincoln Caplan, The Tenth Justice (New York: Vintage Books, 1987), 107.
3. There are especially compelling reasons for adhering to stare decisis in applying the principles of Roe v. Wade. That case was considered with special care. It was first argued during the 1971 Term, and reargued--with extensive briefing--the following Term. The decision was joined by the Chief Justice and six other justices. Since Roe was decided in January 1973, the Court repeatedly and consistently has accepted and applied the basic principle that a woman has a fundamental right to make the highly personal choice whether or not to terminate her pregnancy.... Today, however, the dissenting opinion rejects the basic premise of Roe and its progeny. The dissent stops short of arguing flatly that Roe should be overruled. Rather, it adopts reasoning that, for all practical purposes, would accomplish precisely that result. The dissent states that "[e]ven assuming that there is a fundamental right to terminate pregnancy in some situations," the State's compelling interests in maternal health and potential human life "are present throughout pregnancy." The existence of these compelling interests turns out to be largely unnecessary, however, for the dissent does not think that even one of the numerous abortion regulations at issue imposes a sufficient burden on the "limited" fundamental right to require heightened scrutiny. Indeed, the dissent asserts that, regardless of cost, "[a] health regulation, such as the hospitalization requirement, simply does not rise to the level of 'official interference' with the abortion decision." The dissent therefore would hold that a requirement that all abortions be performed in an acute-care, general hospital does not impose an unacceptable burden on the abortion decision. It requires no great familiarity with the cost and limited availability of such hospitals to appreciate that the effect of the dissent's views would be to drive the performance of many abortions back underground free of effective regulation and often without the attendance of a physician.
In sum, it appears that the dissent would uphold virtually any abortion regulation under a rational-basis test. It also appears that even where heightened scrutiny is deemed appropriate, the dissent would uphold virtually any abortion-inhibiting regulation because of the State's interest in preserving potential human life.... This analysis is wholly incompatible with the existence of the fundamental right recognized in Roe v. Wade.
4. In his amicus curiae brief in support of the city of Akron, the Solicitor General of the United States argues that we should adopt the "unduly burdensome" standard and in doing so, we should "accord heavy deference to the legislative judgment" in determining what constitutes an "undue burden." The "unduly burdensome" standard is appropriate not because it incorporates deference to legislative judgment at the threshold stage of analysis, but rather because of the limited natureof the fundamental right that has been recognized in the abortion cases. Although our cases do require that we "pay careful attention" to the legislative judgment before we invoke strict scrutiny, ... it is not appropriate to weigh the state interests at the threshold stage.