Planned Parenthood of Southeastern Pa. v. Casey (1992)
JUSTICE O'CONNOR, JUSTICE KENNEDY, and JUSTICE SOUTER announced the judgment of the Court....
I
Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution
protects a woman's right to terminate her pregnancy in its early stages, Roe v. Wade, 410 U. S. 113
(1973), that definition of liberty is still questioned. Joining the respondents as amicus curiae, the United
States, as it has done in five other cases in the last decade, again asks us to overrule Roe....
At issue in these cases are five provisions of the Pennsylvania Abortion Control Act of 1982, as amended
in 1988 and 1989. 18 Pa. Cons. Stat. §§ 3203-3220 (1990). Relevant portions of the Act are set forth in
the Appendix. Infra, at 902. The Act requires that a woman seeking an abortion give her informed
consent prior to the abortion procedure, and specifies that she be provided with certain information at
least 24 hours before the abortion is performed. § 3205. For a minor to obtain an abortion, the Act
requires the informed consent of one of her parents, but provides for a judicial bypass option if the
minor does not wish to or cannot obtain a parent's consent. § 3206. Another provision of the Act
requires that, unless certain exceptions apply, a married woman seeking an abortion must sign a
statement indicating that she has notified her husband of her intended abortion. § 3209. The Act
exempts compliance with these three requirements in the event of a "medical emergency," which is
defined in § 3203 of the Act. See §§ 3203, 3205(a), 3206(a), 3209(c). In addition to the above provisions
regulating the performance of abortions, the Act imposes certain reporting requirements on facilities
that provide abortion services. §§ 3207(b), 3214(a), 3214(f)....
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.
It must be stated at the outset and with clarity that Roe's essential holding, the holding we reaffirm, has
three parts. First is a recognition of the right of the 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 the
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. These principles do not contradict one another; and we adhere to each.
II
Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due
Process Clause of the Fourteenth Amendment. It declares that no State shall "deprive any person of life,
liberty, or property, without due process of law." The controlling word in the cases before us is "liberty."
Although a literal reading of the Clause might suggest that it governs only the procedures by which a
State may deprive persons of liberty, for at least 105 years, since Mugler v. Kansas, 123 U. S. 623, 660-
661 (1887), the Clause has been understood to contain a substantive component as well, one "barring
certain government actions regardless of the fairness of the procedures used to implement them."
Daniels v. Williams, 474 U. S. 327, 331 (1986). As Justice Brandeis (joined by Justice Holmes) observed,
"[dJespite arguments to the contrary which had seemed to me persuasive, it is settled that the due
process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters
of procedure. Thus all fundamental rights comprised within the term liberty are protected by the
Federal Constitution from invasion by the States." Whitney v. California, 274 U. S. 357, 373 (1927)
(concurring opinion)....
Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the
Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the
Fourteenth Amendment protects. See U. S. Const., Arndt. 9. As the second Justice Harlan recognized:
"[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by
the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not a
series of isolated points pricked out in terms of the taking of property; the freedom of speech, press,
and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures;
and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial
arbitrary impositions and purposeless restraints, ... and which also recognizes, what a reasonable and
sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs
asserted to justify their abridgment." Poe v.Ullman, supra, at 543 (opinion dissenting from dismissal on
jurisdictional grounds)....
The inescapable fact is that adjudication of substantive due process claims may call upon the Court in
interpreting the Constitution to exercise that same capacity which by tradition courts always have
exercised: reasoned judgment. Its boundaries are not susceptible of expression as a simple rule. That
does not mean we are free to invalidate state policy choices with which we disagree; yet neither does it
permit us to shrink from the duties of our office....
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.
It is conventional constitutional doctrine that where reasonable people disagree the government can
adopt one position or the other. See, e. g., Ferguson v. Skrupa, 372 U. S. 726 (1963); Williamson v. Lee
Optical of Okla., Inc., 348 U. S. 483 (1955). That theorem, however, assumes a state of affairs in which
the choice does not intrude upon a protected liberty. Thus, while some people might disagree about
whether or not the flag should be saluted, or disagree about the proposition that it may not be defiled,
we have ruled that a State may not compel or enforce one view or the other. See West Virginia Bd. of
Ed. v. Barnette, 319 U. S. 624(1943); Texas v. Johnson, 491 U. S. 397 (1989).
Our law affords constitutional protection to personal decisions relating to marriage, procreation,
contraception, family relationships, child rearing, and education....These matters, involving the most
intimate and personal choices a person may make in a lifetime, choices central to personal dignity and
autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is
the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of
human life. Beliefs about these matters could not define the attributes of personhood were they formed
under compulsion of the State.
These considerations begin our analysis of the woman's interest in terminating her pregnancy but
cannot end it, for this reason: though the abortion decision may originate within the zone of conscience
and belief, it is more than a philosophic exercise. Abortion is a unique act. It is an act fraught with
consequences for others: for the woman who must live with the implications of her decision; for the
persons who perform and assist in the procedure; for the spouse, family, and society which must
confront the knowledge that these procedures exist, procedures some deem nothing short of an act of
violence against innocent human life; and, depending on one's beliefs, for the life or potential life that is
aborted. Though abortion is conduct, it does not follow that the State is entitled to proscribe it in all
instances. That is because the liberty of the woman is at stake in a sense unique to the human condition
and so unique to the law. The mother who carries a child to full term is subject to anxieties, to physical
constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human
race been endured by woman with a pride that ennobles her in the eyes of others and gives to the
infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering
is too intimate and personal for the State to insist, without more, upon its own vision of the woman's
role, however dominant that vision has been in the course of our history and our culture. The destiny of
the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her
place in society....
From what we have said so far it follows that it is a constitutional liberty of the woman to have some
freedom to terminate her pregnancy. We conclude that the basic decision in Roe was based on a
constitutional analysis which we cannot now repudiate. The woman's liberty is not so unlimited,
however, that from the outset the State cannot show its concern for the life of the unborn, and at a
later point in fetal development the State's interest in life has sufficient force so that the right of the
woman to terminate the pregnancy can be restricted.
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 and 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 882-883, 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, see supra, at 860, 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.
On the other side of the equation is the interest of the State in the protection of potential life. The Roe
Court recognized the State's "important and legitimate interest in protecting the potentiality of human
life." Roe, supra, at 162. The weight to be given this state interest, not the strength of the woman's
interest, was the difficult question faced in Roe.
....it must be remembered that Roe v. Wade speaks with clarity in establishing not only the woman's
liberty but also the State's "important and legitimate interest in potential life." Roe, supra, at 163. That
portion of the decision in Roe has been given too little acknowledgment and implementation by the
Court in its subsequent cases. Those cases decided that any regulation touching upon the abortion
decision must survive strict scrutiny, to be sustained only if drawn in narrow terms to further a
compelling state interest. See, e. g., Akron I, supra, at 427. Not all of the cases decided under that
formulation can be reconciled with the holding in Roe itself that the State has legitimate interests in the
health of the woman and in protecting the potential life within her. In resolving this tension, we choose
to rely upon Roe, as against the later cases.
Roe established a trimester framework to govern abortion regulations....
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.
Though the woman has a right to choose to terminate or continue her pregnancy before viability, it does
not at all follow that the State is prohibited from taking steps to ensure that this choice is thoughtful and
informed. Even in the earliest stages of pregnancy, the State may enact rules and regulations designed
to encourage her to know that there are philosophic and social arguments of great weight that can be
brought to bear in favor of continuing the pregnancy to full term and that there are procedures and
institutions to allow adoption of unwanted children as well as a certain degree of state assistance if the
mother chooses to raise the child herself....
We reject the trimester framework, which we do not consider to be part of the essential holding of
Roe....Measures aimed at ensuring that a woman's choice contemplates the consequences for the fetus
do not necessarily interfere with the right recognized in Roe, although those measures have been found
to be inconsistent with the rigid trimester framework announced in that case....
As our jurisprudence relating to all liberties save perhaps abortion has recognized, not every law which
makes a right more difficult to exercise is, ipso facto, an infringement of that right....
The abortion right is similar. Numerous forms of state regulation might have the incidental effect of
increasing the cost or decreasing the availability of medical care, whether for abortion or any other
medical procedure. The fact that a law which serves a valid purpose, one not designed to strike at the
right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion
cannot be enough to invalidate it. Only where state regulation imposes an undue burden on a woman's
ability to make this decision does the power of the State reach into the heart of the liberty protected by
the Due Process Clause....
Not all governmental intrusion is of necessity unwarranted; and that brings us to the other basic flaw in
the trimester framework: even in Roe's terms, in practice it undervalues the State's interest in the
potential life within the woman....
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....
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. 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. See infra, at 899-900 (addressing Pennsylvania's parental
consent requirement).
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....
[The Court proceeds to uphold every abortion restriction of the Pennsylvania law as not imposing an
“undue burden” except the requirement that spouses be notified of the abortion procedure]
Section 3209 of Pennsylvania's abortion law provides, except in cases of medical emergency, that no
physician shall perform an abortion on a married woman without receiving a signed statement from the
woman that she has notified her spouse that she is about to undergo an abortion. The woman has the
option of providing an alternative signed statement certifying that her husband is not the man who
impregnated her; that her husband could not be located; that the pregnancy is the result of spousal
sexual assault which she has reported; or that the woman believes that notifying her husband will cause
him or someone else to inflict bodily injury upon her. A physician who performs an abortion on a
married woman without receiving the appropriate signed statement will have his or her license revoked,
and is liable to the husband for damages....
In well-functioning marriages, spouses discuss important intimate decisions such as whether to bear a
child. But there are millions of women in this country who are the victims of regular physical and
psychological abuse at the hands of their husbands. Should these women become pregnant, they may
have very good reasons for not wishing to inform their husbands of their decision to obtain an abortion.
Many may have justifiable fears of physical abuse, but may be no less fearful of the consequences of
reporting prior abuse to the Commonwealth of Pennsylvania. Many may have a reasonable fear that
notifying their husbands will provoke further instances of child abuse; these women are not exempt
from § 3209's notification requirement. Many may fear devastating forms of psychological abuse from
their husbands, including verbal harassment, threats of future violence, the destruction of possessions,
physical confinement to the home, the withdrawal of financial support, or the disclosure of the abortion
to family and friends. These methods of psychological abuse may act as even more of a deterrent to
notification than the possibility of physical violence, but women who are the victims of the abuse are
not exempt from § 3209's notification requirement. And many women who are pregnant as a result of
sexual assaults by their husbands will be unable to avail themselves of the exception for spousal sexual
assault, § 3209(b)(3), because the exception requires that the woman have notified law enforcement
authorities within 90 days of the assault, and her husband will be notified of her report once an
investigation begins, § 3128(c). If anything in this field is certain, it is that victims of spousal sexual
assault are extremely reluctant to report the abuse to the government; hence, a great many spousal
rape victims will not be exempt from the notification requirement imposed by § 3209.
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 recognize that a husband has a "deep and proper concern and interest ... in his wife's pregnancy and
in the growth and development of the fetus she is carrying....
Before birth, however, the issue takes on a very different cast. It is an inescapable biological fact that
state regulation with respect to the child a woman is carrying will have a far greater impact on the
mother's liberty than on the father's. The effect of state regulation on a woman's protected liberty is
doubly deserving of scrutiny in such a case, as the State has touched not only upon the private sphere of
the family but upon the very bodily integrity of the pregnant woman. Cf. Cruzan v. Director, Mo. Dept. of
Health, 497 U. S., at 281. The Court has held that "when the wife and the husband disagree on this
decision, the view of only one of the two marriage partners can prevail. Inasmuch as it is the woman
who physically bears the child and who is the more directly and immediately affected by the pregnancy,
as between the two, the balance weighs in her favor." Danforth, supra, at 71. This conclusion rests upon
the basic nature of marriage and the nature of our Constitution: "[T]he marital couple is not an
independent entity with a mind and heart of its own, but an association of two individuals each with a
separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the
individual, married or single, to be free from unwarranted governmental intrusion into matters so
fundamentally affecting a person as the decision whether to bear or beget a child." Eisenstadt v. Baird,
405 U. S., at 453 (emphasis in original). The Constitution protects individuals, men and women alike,
from unjustified state interference, even when that interference is enacted into law for the benefit of
their spouses....
The husband's interest in the life of the child his wife is carrying does not permit the State to empower
him with this troubling degree of authority over his wife....
These considerations confirm our conclusion that § 3209 is invalid....
JUSTICE O'CONNOR, JUSTICE KENNEDY, and JUSTICE SOUTER announced the judgment of the Court....
I
Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution
protects a woman's right to terminate her pregnancy in its early stages, Roe v. Wade, 410 U. S. 113
(1973), that definition of liberty is still questioned. Joining the respondents as amicus curiae, the United
States, as it has done in five other cases in the last decade, again asks us to overrule Roe....
At issue in these cases are five provisions of the Pennsylvania Abortion Control Act of 1982, as amended
in 1988 and 1989. 18 Pa. Cons. Stat. §§ 3203-3220 (1990). Relevant portions of the Act are set forth in
the Appendix. Infra, at 902. The Act requires that a woman seeking an abortion give her informed
consent prior to the abortion procedure, and specifies that she be provided with certain information at
least 24 hours before the abortion is performed. § 3205. For a minor to obtain an abortion, the Act
requires the informed consent of one of her parents, but provides for a judicial bypass option if the
minor does not wish to or cannot obtain a parent's consent. § 3206. Another provision of the Act
requires that, unless certain exceptions apply, a married woman seeking an abortion must sign a
statement indicating that she has notified her husband of her intended abortion. § 3209. The Act
exempts compliance with these three requirements in the event of a "medical emergency," which is
defined in § 3203 of the Act. See §§ 3203, 3205(a), 3206(a), 3209(c). In addition to the above provisions
regulating the performance of abortions, the Act imposes certain reporting requirements on facilities
that provide abortion services. §§ 3207(b), 3214(a), 3214(f)....
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.
It must be stated at the outset and with clarity that Roe's essential holding, the holding we reaffirm, has
three parts. First is a recognition of the right of the 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 the
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. These principles do not contradict one another; and we adhere to each.
II
Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due
Process Clause of the Fourteenth Amendment. It declares that no State shall "deprive any person of life,
liberty, or property, without due process of law." The controlling word in the cases before us is "liberty."
Although a literal reading of the Clause might suggest that it governs only the procedures by which a
State may deprive persons of liberty, for at least 105 years, since Mugler v. Kansas, 123 U. S. 623, 660-
661 (1887), the Clause has been understood to contain a substantive component as well, one "barring
certain government actions regardless of the fairness of the procedures used to implement them."
Daniels v. Williams, 474 U. S. 327, 331 (1986). As Justice Brandeis (joined by Justice Holmes) observed,
"[dJespite arguments to the contrary which had seemed to me persuasive, it is settled that the due
process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters
of procedure. Thus all fundamental rights comprised within the term liberty are protected by the
Federal Constitution from invasion by the States." Whitney v. California, 274 U. S. 357, 373 (1927)
(concurring opinion)....
Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the
Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the
Fourteenth Amendment protects. See U. S. Const., Arndt. 9. As the second Justice Harlan recognized:
"[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by
the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not a
series of isolated points pricked out in terms of the taking of property; the freedom of speech, press,
and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures;
and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial
arbitrary impositions and purposeless restraints, ... and which also recognizes, what a reasonable and
sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs
asserted to justify their abridgment." Poe v.Ullman, supra, at 543 (opinion dissenting from dismissal on
jurisdictional grounds)....
The inescapable fact is that adjudication of substantive due process claims may call upon the Court in
interpreting the Constitution to exercise that same capacity which by tradition courts always have
exercised: reasoned judgment. Its boundaries are not susceptible of expression as a simple rule. That
does not mean we are free to invalidate state policy choices with which we disagree; yet neither does it
permit us to shrink from the duties of our office....
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.
It is conventional constitutional doctrine that where reasonable people disagree the government can
adopt one position or the other. See, e. g., Ferguson v. Skrupa, 372 U. S. 726 (1963); Williamson v. Lee
Optical of Okla., Inc., 348 U. S. 483 (1955). That theorem, however, assumes a state of affairs in which
the choice does not intrude upon a protected liberty. Thus, while some people might disagree about
whether or not the flag should be saluted, or disagree about the proposition that it may not be defiled,
we have ruled that a State may not compel or enforce one view or the other. See West Virginia Bd. of
Ed. v. Barnette, 319 U. S. 624(1943); Texas v. Johnson, 491 U. S. 397 (1989).
Our law affords constitutional protection to personal decisions relating to marriage, procreation,
contraception, family relationships, child rearing, and education....These matters, involving the most
intimate and personal choices a person may make in a lifetime, choices central to personal dignity and
autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is
the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of
human life. Beliefs about these matters could not define the attributes of personhood were they formed
under compulsion of the State.
These considerations begin our analysis of the woman's interest in terminating her pregnancy but
cannot end it, for this reason: though the abortion decision may originate within the zone of conscience
and belief, it is more than a philosophic exercise. Abortion is a unique act. It is an act fraught with
consequences for others: for the woman who must live with the implications of her decision; for the
persons who perform and assist in the procedure; for the spouse, family, and society which must
confront the knowledge that these procedures exist, procedures some deem nothing short of an act of
violence against innocent human life; and, depending on one's beliefs, for the life or potential life that is
aborted. Though abortion is conduct, it does not follow that the State is entitled to proscribe it in all
instances. That is because the liberty of the woman is at stake in a sense unique to the human condition
and so unique to the law. The mother who carries a child to full term is subject to anxieties, to physical
constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human
race been endured by woman with a pride that ennobles her in the eyes of others and gives to the
infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering
is too intimate and personal for the State to insist, without more, upon its own vision of the woman's
role, however dominant that vision has been in the course of our history and our culture. The destiny of
the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her
place in society....
From what we have said so far it follows that it is a constitutional liberty of the woman to have some
freedom to terminate her pregnancy. We conclude that the basic decision in Roe was based on a
constitutional analysis which we cannot now repudiate. The woman's liberty is not so unlimited,
however, that from the outset the State cannot show its concern for the life of the unborn, and at a
later point in fetal development the State's interest in life has sufficient force so that the right of the
woman to terminate the pregnancy can be restricted.
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 and 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 882-883, 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, see supra, at 860, 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.
On the other side of the equation is the interest of the State in the protection of potential life. The Roe
Court recognized the State's "important and legitimate interest in protecting the potentiality of human
life." Roe, supra, at 162. The weight to be given this state interest, not the strength of the woman's
interest, was the difficult question faced in Roe.
....it must be remembered that Roe v. Wade speaks with clarity in establishing not only the woman's
liberty but also the State's "important and legitimate interest in potential life." Roe, supra, at 163. That
portion of the decision in Roe has been given too little acknowledgment and implementation by the
Court in its subsequent cases. Those cases decided that any regulation touching upon the abortion
decision must survive strict scrutiny, to be sustained only if drawn in narrow terms to further a
compelling state interest. See, e. g., Akron I, supra, at 427. Not all of the cases decided under that
formulation can be reconciled with the holding in Roe itself that the State has legitimate interests in the
health of the woman and in protecting the potential life within her. In resolving this tension, we choose
to rely upon Roe, as against the later cases.
Roe established a trimester framework to govern abortion regulations....
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.
Though the woman has a right to choose to terminate or continue her pregnancy before viability, it does
not at all follow that the State is prohibited from taking steps to ensure that this choice is thoughtful and
informed. Even in the earliest stages of pregnancy, the State may enact rules and regulations designed
to encourage her to know that there are philosophic and social arguments of great weight that can be
brought to bear in favor of continuing the pregnancy to full term and that there are procedures and
institutions to allow adoption of unwanted children as well as a certain degree of state assistance if the
mother chooses to raise the child herself....
We reject the trimester framework, which we do not consider to be part of the essential holding of
Roe....Measures aimed at ensuring that a woman's choice contemplates the consequences for the fetus
do not necessarily interfere with the right recognized in Roe, although those measures have been found
to be inconsistent with the rigid trimester framework announced in that case....
As our jurisprudence relating to all liberties save perhaps abortion has recognized, not every law which
makes a right more difficult to exercise is, ipso facto, an infringement of that right....
The abortion right is similar. Numerous forms of state regulation might have the incidental effect of
increasing the cost or decreasing the availability of medical care, whether for abortion or any other
medical procedure. The fact that a law which serves a valid purpose, one not designed to strike at the
right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion
cannot be enough to invalidate it. Only where state regulation imposes an undue burden on a woman's
ability to make this decision does the power of the State reach into the heart of the liberty protected by
the Due Process Clause....
Not all governmental intrusion is of necessity unwarranted; and that brings us to the other basic flaw in
the trimester framework: even in Roe's terms, in practice it undervalues the State's interest in the
potential life within the woman....
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....
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. 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. See infra, at 899-900 (addressing Pennsylvania's parental
consent requirement).
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....
[The Court proceeds to uphold every abortion restriction of the Pennsylvania law as not imposing an
“undue burden” except the requirement that spouses be notified of the abortion procedure]
Section 3209 of Pennsylvania's abortion law provides, except in cases of medical emergency, that no
physician shall perform an abortion on a married woman without receiving a signed statement from the
woman that she has notified her spouse that she is about to undergo an abortion. The woman has the
option of providing an alternative signed statement certifying that her husband is not the man who
impregnated her; that her husband could not be located; that the pregnancy is the result of spousal
sexual assault which she has reported; or that the woman believes that notifying her husband will cause
him or someone else to inflict bodily injury upon her. A physician who performs an abortion on a
married woman without receiving the appropriate signed statement will have his or her license revoked,
and is liable to the husband for damages....
In well-functioning marriages, spouses discuss important intimate decisions such as whether to bear a
child. But there are millions of women in this country who are the victims of regular physical and
psychological abuse at the hands of their husbands. Should these women become pregnant, they may
have very good reasons for not wishing to inform their husbands of their decision to obtain an abortion.
Many may have justifiable fears of physical abuse, but may be no less fearful of the consequences of
reporting prior abuse to the Commonwealth of Pennsylvania. Many may have a reasonable fear that
notifying their husbands will provoke further instances of child abuse; these women are not exempt
from § 3209's notification requirement. Many may fear devastating forms of psychological abuse from
their husbands, including verbal harassment, threats of future violence, the destruction of possessions,
physical confinement to the home, the withdrawal of financial support, or the disclosure of the abortion
to family and friends. These methods of psychological abuse may act as even more of a deterrent to
notification than the possibility of physical violence, but women who are the victims of the abuse are
not exempt from § 3209's notification requirement. And many women who are pregnant as a result of
sexual assaults by their husbands will be unable to avail themselves of the exception for spousal sexual
assault, § 3209(b)(3), because the exception requires that the woman have notified law enforcement
authorities within 90 days of the assault, and her husband will be notified of her report once an
investigation begins, § 3128(c). If anything in this field is certain, it is that victims of spousal sexual
assault are extremely reluctant to report the abuse to the government; hence, a great many spousal
rape victims will not be exempt from the notification requirement imposed by § 3209.
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 recognize that a husband has a "deep and proper concern and interest ... in his wife's pregnancy and
in the growth and development of the fetus she is carrying....
Before birth, however, the issue takes on a very different cast. It is an inescapable biological fact that
state regulation with respect to the child a woman is carrying will have a far greater impact on the
mother's liberty than on the father's. The effect of state regulation on a woman's protected liberty is
doubly deserving of scrutiny in such a case, as the State has touched not only upon the private sphere of
the family but upon the very bodily integrity of the pregnant woman. Cf. Cruzan v. Director, Mo. Dept. of
Health, 497 U. S., at 281. The Court has held that "when the wife and the husband disagree on this
decision, the view of only one of the two marriage partners can prevail. Inasmuch as it is the woman
who physically bears the child and who is the more directly and immediately affected by the pregnancy,
as between the two, the balance weighs in her favor." Danforth, supra, at 71. This conclusion rests upon
the basic nature of marriage and the nature of our Constitution: "[T]he marital couple is not an
independent entity with a mind and heart of its own, but an association of two individuals each with a
separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the
individual, married or single, to be free from unwarranted governmental intrusion into matters so
fundamentally affecting a person as the decision whether to bear or beget a child." Eisenstadt v. Baird,
405 U. S., at 453 (emphasis in original). The Constitution protects individuals, men and women alike,
from unjustified state interference, even when that interference is enacted into law for the benefit of
their spouses....
The husband's interest in the life of the child his wife is carrying does not permit the State to empower
him with this troubling degree of authority over his wife....
These considerations confirm our conclusion that § 3209 is invalid....
