Planned Parenthood of Southeastern Pennsylvania v. Casey Brief for Petitioners and Cross-Respondents

    N os. 91-744 and 91-902

In the

iiatpmnr (tort of tljr HtnitEfc
October Term, 1991

P lanned Parenthood of Southeastern Pennsylvania, 
Reproductive Health and  Counseling Center, Women’s 
Health Services, Inc ., Women’s Suburban Clinic, A llentown 
Women’s Center, and Thomas A llen, M.D., on behalf of himself 
and all others similarly situated,

Petitioners and Cross-Respondents, 
—v.—

Robert P. Casey, A llan S. Noonan, and Ernest D. P reate, Jr., 
personally and in their official capacities,

Respondents and Cross-Petitioners.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT

BRIEF FOR PETITIONERS AND CROSS-RESPONDENTS

Linda J. Wharton 
Carol E. Tracy 
Women’s Law Project 
125 South Ninth Street 
Suite 401
Philadelphia, Pennsylvania 19107 
(215) 928-9801

Kathryn Kolbert
(Counsel o f Record)

Janet Benshoof 
Lynn M. Paltrow 
Rachael N. P ine 
Andrew Dwyer 
Ellen K. Goetz 
Steven R. Shapiro 
John A. Powell 
American Civil Liberties Union 

Foundation 
132 W. 43rd Street 
New York, New York 10036 
(212) 944-9800

Attorneys for Petitioners and Cross-Respondents 
(Counsel continued on inside cover)



Seth Kreimer 
University of Pennsylvania 

Law School 
3400 Chestnut Street 
Philadelphia, Pennsylvania 19104 
(215) 898-7447
Roger K. Evans 
Eve W. Paul 
Dara Klassel 
Planned Parenthood Action 

Fund, Inc.
810 Seventh Avenue 
New York, New York 10019 
(212) 541-7800



1

QUESTIONS PRESENTED

1. Did the Court of Appeals err in upholding the constitu­
tionality of the following provisions of the Pennsylvania 
Abortion Control Act:

a. 18 Pa. Cons. Stat. Ann. § 3203 (definition of medical 
emergency)
b. 18 Pa. Cons. Stat. Ann. § 3205 (informed consent)
c. 18 Pa. Cons. Stat. Ann. § 3206 (parental consent)
d. 18 Pa. Cons. Stat. Ann. §§ 3207, 3214 (reporting 
requirements)?

2. Did the Court of Appeals err in holding 18 Pa. Cons. 
Stat. Ann. § 3209 (spousal notice) unconstitutional?



11

PARTIES TO THE PROCEEDING

The parties to the instant proceeding are set forth in the 
caption on the cover of this brief.*

* By agreement of the parties, Planned Parenthood, et al., petitioners 
on No. 91-744 and cross-respondents on No. 91-902, will be referred to as 
“ petitioners” and will address all the issues in the consolidated cases in their 
opening and reply briefs. Robert P. Casey, et al., respondents on No. 91-744 
and cross-petitioners on No. 91-902, will be referred to as “respondents” 
and will address all the issues in their responsive brief.



TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED...........................................  i

PARTIES TO THE PROCEEDING............................  ii

TABLE OF AUTHORITIES.......................................... vii

OPINIONS BELOW......................................................... 1

JURISDICTION..............................................................  2

CONSTITUTIONAL AND STATUTORY PROVI­
SIONS INVOLVED.....................................................  2

STATEMENT OF THE CASE...................................... 2

I. HISTORY OF THE LEGISLATION............  2

II. HISTORY OF THE LITIGATION................  4

III. FACTS...............................................................  5

A. Husband Notification..................................  5

B. Biased Patient Counseling and Mandatory
D elay............................................................  8

C. “ Informed” Parental Consent...................  11

D. Definition of Medical Emergency.............  12

E. Public Disclosure and Reporting Require­
ments ............................................................. 13

Ill



IV

SUMMARY OF ARGUMENT......................................  15

ARGUMENT...................................................................  17
I. THIS COURT MUST REAFFIRM THE 

CENTRAL HOLDING OF ROE v. WADE 
THAT THE RIGHT TO CHOOSE ABOR­
TION IS A FUNDAMENTAL RIGHT PRO­
TECTED BY THE CONSTITUTION.............  17
A. This Court Cannot Uphold the Pennsylva­

nia Statute Without Abandoning the Strict 
Scrutiny Standard of Review, thereby 
Overruling Roe v. Wade............................  17

B. The Doctrine of Stare Decisis Demands
Reaffirmation of R oe ..................................  19

C. Roe Is Soundly Based in the Constitution
and Sets Forth a Fair and Workable Stan­
dard of Adjudication..................................  22
1. The decision to terminate or continue a

pregnancy is a fundamental right........ 22
2. The Roe trimester framework is work­

able and fairly accommodates compet­
ing interests...........................................  27

D. Roe's Guarantee of Safe, Legal Abortion
Has Been of Profound Importance to the 
Lives, Health and Equality of American 
Women..........................................................  31

II. THE “ UNDUE BURDEN” TEST ADOPTED 
BY THE COURT OF APPEALS IS VAGUE 
AND UNWORKABLE...................................... 34

III. THE RATIONAL BASIS TEST WILL PRO­
VOKE AND SANCTION EXTREME GOV­
ERNMENTAL INTERFERENCE WITH 
PRIVATE REPRODUCTIVE DECISIONS. . .  38

PAGE



V

IV. THE CHALLENGED PROVISIONS ARE
INVALID UNDER ANY STANDARD OF
REVIEW ............................................................  40

A. Mandatory Husband Notification Violates
Rights of Privacy, Marital Integrity, and 
Equal Protection.......................................... 40

L In violation of the right of privacy, the 
Act’s husband notification restriction 
increases the likelihood of violence 
against women and fails to further any 
legitimate state interest......................... 40

2. The Act’s husband notification provi­
sion unconstitutionally interferes with
the protected marital relationship.........  44

3. Section 3209 denies women equal pro­
tection of the laws................................  46

B. The Act’s Mandatory Delay Will Jeopard­
ize Women’s Health and Furthers No 
Legitimate State Interest............................  48

C. The Act’s Biased Counseling Restrictions
Violate the Right of Privacy and the First 
Amendment...................................................  50

1. Biased patient counseling interferes
with the provision of quality medical 
care and serves no legitimate state 
interest.....................................................  50

2. In violation of the First Amendment,
the biased counseling provisions force 
the physician to communicate the 
state’s ideology......................................  53

PAGE



VI

D. The Act’s “ Informed” Parental Consent
Restriction Unduly Burdens the Right of 
Privacy and Forces Family Life to Con­
form to a State-Designed Idea l..................  55

E. The Act’s Public Disclosure and Reporting
Requirements Burden Women’s Right of 
Privacy and Fail to Further Legitimate 
State Interests...............................................  57

F. This Court Must Enjoin Enforcement of
the Act’s Medical Emergency Exception to 
the Extent that Compliance Would Pose a 
Threat to the Life or Health of Women or 
Must Find the Provision Unconstitutional 60

CONCLUSION................................................................ 62

PAGE



TABLE OF AUTHORITIES

Cases: PAGE

American College o f Obstetricians & Gynecologists v. 
Thornburgh, 737 F.2d 283 (3d Cir. 1984).................  3

American College o f Obstetricians & Gynecologists v. 
Thornburgh, 613 F. Supp. 656 (E.D. Pa. 1985)___ 13

American College o f Obstetricians & Gynecologists v. 
Thornburgh, 656 F. Supp. 879 (E.D. Pa. 1987)___ 3

Arizona v. Rumsey, 467 U.S. 203 (1984)..................... 20

Baldwin v. Missouri, 281 U.S. 586 (1930)..................  37

Bates v. City o f Little Rock, 361 U.S. 516 (I960)... 18, 34-35

Bellotti v. Baird, 443 U.S. 622 (1979).....................4, 41, 56

Bigelow v. Virginia, 421 U.S. 809 (1975).....................  54

Board o f Directors o f Rotary Int'l v. Rotary Club, 481 
U.S. 537 (1987)............................................................  45

Brown v. Board o f Education, 349 U.S. 294 (1955) .. 22

Califano v. Webster, 430 U.S. 313 (1977)...................  48

Carey v. Population Servs. In t’l, 431 U.S. 678

Vll

Daley, 749 F.2d 452 (7th Cir. 1984), appeal dis­
missed sub nom. Diamond v. Charles, 476 U.S. 54

Charles v. Carey, 579 F. Supp. 464 (N.D. 111. 1983), 
a ff’d in part and rev’d in part sub nom. Charles v. 
Daley, 749 F.2d 452 (7th Cir. 1984), appeal dis­
missed sub nom. Diamond v. Charles, 476 U.S. 54 
(1986) .............................................................................

City o f Akron v. Akron Center fo r  Reproductive 
Health, Inc., 462 U.S. 416 (1983)............................ passim



VU1

City o f Dallas v. Stanglin, 490 U.S. 19 (1989)...........  45

City o f Richmond v. J.A. Croson Co., 488 U.S. 469 
(1989)............................................................................. 30

Cleveland Bd. o f Educ. v. La Fleur, 414 U.S. 632 
(1974).............................................................................21, 44

Coe v. Melahn, No. 90-1552 (8th Cir. Mar. 2, 1992) . 34

County o f Allegheny v. ACLU Greater Pittsburgh 
Chapter, 492 U.S. 573 (1989).....................................  20

Craig v. Boren, 429 U.S. 190 (1976)............................  47

Cruzan v. Director, Missouri Dep’t o f Health, 110 S.
Q . 2841 (1990)............................................................  24

Daniels v. Williams, 474 U.S. 327 (1986)..................... 31

Doe v. Bolton, 410 U.S. 179 (1973)................................  18

Doe v. Deschamps, 461 F. Supp. 682 (D. Mont. 1976) 41

Eisenstadt v. Baird, 405 U.S. 438 (1972).....................23, 47

Employment Division, Dep’t o f Social Services v.
Smith, 110 S. Ct. 1595 (1990).................................... 45

Eubanks v. Brown, 604 F. Supp. 141 (W.D. Ky. 1984) 41

Ferguson v. Skrupa, 372 U.S. 726 (1963)..................... 39

Florida Dep’t o f Health v. Florida Nursing Homes 
A ss’n, 450 U.S. 147 (1981)...........................................  22

Garcia v. San Antonio Metropolitan Transit Auth., 469 
U.S. 528 (1985)............................................................  22

Gibson v. Florida Legislative Investigation Comm., 372 
U.S. 539 (1963) .......................................................... 34, 35

PAGE



IX

PAGE

Gilbert v. Minnesota, 254 U.S 325 (1920)...................  46

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987).. 4

Griswold v. Connecticut, 381 U.S. 479 (1965)..23, 44, 45, 46
Guam Society o f Obstetricians and Gynecologists v.

Ada, 776 F. Supp. 1422 (D. Guam 1990), appeal 
pending, No. 90-16706 (9th C ir .) ..............................  39

Harris v. McRae, 448 U.S. 297 (1980)........................  59

Hilton v. South Carolina Pub. Rys. Comm'n, 112 S. 
a .  560 (1991).............................................................. 19, 20

Hodgson v. Minnesota, 648 F. Supp. 756 (D. Minn.
1986)...............................................................................  50

Hodgson v. Minnesota, 110 S. Ct. 2926 (1990)..............passim
In re A.C., 573 A.2d 1235 (D.C. 1990) (en banc). . . .  29
In re Mary P., 444 N.Y.S.2d 545 (Fam. Ct. 1981) . . .  21
In re Quinlan, 355 A.2d 647 (N.J. 1976).....................  21
International Union, U.A.W. v. Johnson Controls,

Inc., I l l  S. Ct. 1196 (1991)........................................ 30

Jane L. v. Bangerter, No. 91-C-345-G (D. Utah filed 
Apr. 4, 1991)................................................................  38

King v. Palmer, 950 F.2d 771 (D.C. Cir. 1991) (en 
banc) ...............................................................................  34

Kirchberg v. Feenstra, 450 U.S. 455 (1981)....................  47

Lakewood v. Plain Dealer Publishing Co., 486 U.S.
750 (1988)......................................................................  61

Lehman v. City o f Shaker Heights, 418 U.S. 298 (1974) 54-55

Lehnert v. Ferris Faculty A ss’n, 111 S. Ct. 1950 (1991) 53
LeRoy Fibre Co. v. Chicago, M. & St. P. R. Co., 232 

U.S. 340 (1914). 31



X

Lovell v. City o f Griffin, 303 U.S. 444 (1938)...........  18

Loving v. Virginia, 388 U.S. 1 (1967)..........................  23

Margaret S. v. Treen, 597 F. Supp. 636 (E.D. La.
1984), a ff’d sub nom. Margaret S. v. Edwards, 794
F.2d 994 (5th Cir. 1986).............................................  30

Marks v. United States, 430 U.S. 188 (1977)...............  5, 34

Meyer v. Nebraska, 262 U.S. 390 (1923)..................... 23

Michael H. v. Gerald D., 491 U.S. 110 (1989)...........  44

Michael M. v. Sonoma County Superior Court, 450 
U.S. 464 (1981)............................................................  25

Mississippi University for Women v. Hogan, 458 U.S.
718 (1982)..................................................................... 47, 48

Moore v. City o f East Cleveland, 431 U.S. 494 (1977) .44, 57

Moore v. Sims, 442 U.S. 415 (1979)............................  61

Murdock v. Pennsylvania, 319 U.S. 105 (1943)................  36

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 
(1958).............................................................................  35

New York State Club Ass’n v. City o f New York, 487 
U.S. 1 (1988)................................................................ 45

Nixon v. Administrator o f General Services, 433 U.S.
425 (1977)...................................................................... 46

NOW  v. Operation Rescue, 726 F. Supp. 1483 (E.D.
Va. 1989), a ff’d, 914 F.2d 582 (4th Cir. 1990), cert, 
granted sub nom. Bray v. Alexandria Women’s 
Health Clinic, 111 S. Ct. 1070 (1991)........................... 13-14

Ohio v. Akron Center fo r Reproductive Health, 110 S.
Q . 2972 (1990)

PAGE

53



XI

Olmstead v. United States, 277 U.S. 438 (1928).......... 23

Orr v. Orr, 440 U.S. 268 (1979).................................... 48

Pacific Gas & Electric Co. v. Public Utilities Comm’n,
475 U.S. 1 (1986)........................................................ 53, 54

Patterson v. McLean Credit Union, 491 U.S. 164 
(1989).............................................................................  19-20

Payne v. Tennessee, 111 S. Ct. 2597 (1991).................  19-20

People v. Pointer, 199 Cal. Rptr. 357 (Ct. App. 1984) 21

Pierce v. Society o f Sisters, 268 U.S. 510 (1925)........ 23

Planned Parenthood v. Arizona, 718 F.2d 938 (9th Cir.
1983), appeal after remand, 789 F.2d 1348 (9th Cir.), 
a ff’d mem. sub nom. Babbit v. Planned Parenthood,
479 U.S. 925 (1986)..................................................... 59

Planned Parenthood v. Board o f Medical Review, 598 
F. Supp. 625 (D.R.I. 1984)........................................41, 44

Planned Parenthood v. Danforth, 428 U.S. 52
(1976).....................................................18, 40-41, 44, 50-51

Planned Parenthood A ss’n v. Fitzpatrick, 401 F. Supp.
554 (E.D. Pa. 1975), a ff’d mem. sub nom. Franklin 
v. Fitzpatrick, 428 U.S. 901 (1976)............................  3

Planned Parenthood A ss’n v. Harris, 670 F. Supp. 971 
(N.D. Ga. 1987)..........................................................  57

Poe v. Ullman, 367 U.S. 497 (1961).......................40, 45, 46

Prince v. Massachusetts, 321 U.S. 158 (1944).............  44-45

Ragsdale v. Turnock, 841 F.2d 1358 (7th Cir. 1988), 
proceedings deferred, 493 U.S. 987 (1989)................  30

Riley v. National Fed’n o f the Blind, 487 U.S. 781
(1988)

PAGE

53, 54



Xll

Roberts v. United States Jaycees, 468 U.S. 609 (1984) 45

Rochin v. California, 342 U.S. 165 (1952)................... 26

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

Ruby v. Massey, 452 F. Supp. 361 (D. Conn. 1978).. 21

Rust v. Sullivan, 111 S. Ct. 1759 (1991)......................  51

San Antonio Independent School Dist. v. Rodriguez,
411 U.S. 1 (1973)........................................................  34

Scheetz v. The Morning Call, Inc., 946 F.2d 202 (3d 
Cir. 1991).....................................................................  42

Scheinberg v. Smith, 482 F. Supp. 529 (S.D. Fla.
1979), a ff’d in part, vacated in part, and remanded,
659 F.2d 476 (5th Cir. Unit B Oct. 1981), on 
remand, 550 F. Supp. 1112 (S.D. Fla. 1982)...........  41

Shapiro v. Thompson, 394 U.S. 618 (1969).................  18

Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 
(1942)..................................................................... 23, 44, 47

South Carolina v. Gathers, 490 U.S. 805 (1989).........  21

Stanley v. Georgia, 394 U.S. 557 (1969)....................... 23

Stanton v. Stanton, 421 U.S. 7 (1975)..........................  33

Superintendent o f Belchertown State School v. Saike- 
wicz, 370 N.E.2d 417 (Mass. 1977)..........................  21

Thornburgh v. American College o f Obstetricians & 
Gynecologists, 476 U.S. 747 (1986).......................... passim

Tinker v. Colwell, 193 U.S. 473 (1904)........................  47

Union Pacific Ry. Co. v. Botsford, 141 U.S. 250 
(1891)....................................................................22-23, 25-26

PAGE



xm

United States v. Westinghouse Electric Corp., 638 F.2d
PAGE

570 (3d Cir. 1980)...................................................  46

Vasquez v. Hillery, 474 U.S. 254 (1986).......................19, 22

Virginia v. American Booksellers Ass’n, Inc., 484 U.S.
383 (1988)................................................................  61

Webster v. Reproductive Health Servs., 492 U.S. 490
(1989)........................................................................ passim

Weeks v. Connick, 733 F. Supp. 1036 (E.D. La. 1990) 39

Welch v. Texas Dep’t o f Highways & Pub. Transp.,
483 U.S. 468 (1987)...............................................  19

West Virginia State Bd. o f Educ. v. Barnette, 319 U.S.
624 (1943)........................................................ 27, 39, 53, 55

Whalen v. Roe, 429 U.S. 589 (1977)............................ 21, 46

Williams v. Florida, 399 U.S. 78 (1970)....................... 20

Winston v. Lee, 470 U.S. 753 (1985)............................  26

Wooley v. Maynard, 430 U.S. 705 (1977)........27, 53, 54, 55

Wygant v. Jackson Bd. o f Educ., 476 U.S. 267 (1986) 30

Zablocki v. Redhail, 434 U.S. 374 (1978)............. 21, 44, 47



XIV

Constitutional and Statutory Provisions:

U.S. Const, amend. 1..................................................... 2
U.S. Const, amend. IV, § 1 .......................................... 2
28 U.S.C. § 1254(1) (1988)...........................................  2
1991 La. Sess. Law. Serv. 74 (West)...........................  39
18 Pa. Cons. Stat. Ann. § 3128 (Supp. 1991)............. 7, 42
18 Pa. Cons. Stat. Ann. § 3203 

(Supp. 1991).................................................2, 4, 12, 60, 62
18 Pa. Cons. Stat. Ann. § 3205 (Supp. 1991)........... passim
18 Pa. Cons. Stat. Ann. § 3206 (1983 & Supp. 1991). .passim
18 Pa. Cons. Stat. Ann. § 3207(b)

(Supp. 1991).................................................2, 3, 13, 57, 60
18 Pa. Cons. Stat. Ann. § 3208 (Supp. 1991)___2, 3, 8, 60

PAGE

18 Pa. Cons. Stat. Ann. § 3209 (Supp. 1991).......... passim
18 Pa. Cons. Stat. Ann. § 3211(c) (Supp. 1991)........ 14
18 Pa. Cons. Stat. Ann. § 3214(a) (Supp. 1991) .2, 3, 14, 60
18 Pa. Cons. Stat. Ann. § 3214(f)

(Supp. 1991).................................................2, 3, 13, 57, 60
23 Pa. Cons. Stat. Ann. § 6101 et seq. (Supp. 1991). 43
35 Pa. Cons. Stat. Ann. § 6923 (Supp. 1991)..............  12
35 Pa. Cons. Stat. Ann. § 10101 (1977).......................  11

35 Pa. Cons. Stat. Ann. § 10102 (1977).......................  11

35 Pa. Cons. Stat. Ann. § 10103 (1977).......................  11

35 Pa. Cons. Stat. Ann. § 10104 (1977).......................  11
65 Pa. Cons. Stat. Ann. §§ 66.1-66.4 (Supp. 1991)... 58
No. 91-H5310 Rhode Island General Assembly, Jan. 

Sess. (1991).................................................................... 39



XV

Articles:

PAGE

Alan Guttmacher Institute, Legislative Record, State 
Legislatures—1984 Bills Enacted (1984)......................  30

American Public Health Association Recommended 
Program Guide for Abortion Services, 70 Am. Pub.
H. J. 652 (1980)..........................................................  10

James Bopp, Jr. and Richard E. Coleson, What Does 
Webster Mean?, 130 U. Pa. L. Rev. 157 (1989)___ 35

Willard Cates, Jr., Legal Abortion: The Public Health 
Record, 215 Sci. 1586 (1982)........................................ 32

Willard Cates Jr. and Roger W. Rochat, Illegal Abor­
tions in the United States: 1972-1974, 8 Fam. Plan.
Persp. 86 (1976)............................................................  32

Children’s Defense Fund, The State o f America’s Chil­
dren 1991........................................................................ 52

Robert K. Creasy and Robert Resnik, Maternal-Fetal 
Medicine: Principles and Practice (2d ed. 1989)___ 25

F. Gary Cunningham, Paul C. MacDonald and Nor­
man F. Gant, Williams Obstetrics (18th ed.
1989)........................................................................24, 25, 26

David N. Danforth and James R. Scott, Obstetrics and 
Gynecology (5th ed. 1986)..........................................24, 25

Walter Dellinger and Gene B. Sperling, Abortion and 
the Supreme Court: The Retreat from Roe v. Wade,
138 U. Pa. L. Rev. 83 (1989).............................. 29, 35-36

Patricia Donovan, Fertility-Related State Laws Enacted 
in 1981, 14 Fam. Plan. Persp. 63 (1982).................  30

Susan R. Estrich & Kathleen M. Sullivan, Abortion 
Politics: Writing fo r An Audience o f One, 138 U.
Pa. L. Rev. 119 (1989)............................................... 24, 38



XVI

The Federalist, No. 78 (Alexander Hamilton) (H.
Lodge ed. 1888)............................................................  20

Charles Fried, Correspondence, 6 Phil. & Pub. Aff.
288 (1977).....................................................................  23

Victor R. Fuchs, Women’s Quest for Economic Equal­
ity, 3 J. Econ. Persp. 25 (1989).................................27, 33

Rachel B. Gold, Alan Guttmacher Institute, Abortion 
and Women’s Health: A Turning Point fo r America?
(1990) ............................................................. 20, 31, 32, 37

David A. Grimes, et al., An Epidemic o f Antiabortion 
Violence in the United States, 165 Am. J. Obst. and 
Gyn. 1263 (1991)..........................................................  14

Mimi Hall, Abortion Foes Target Doctors, USA 
Today, Feb. 5, 1992, at 3A........................................  58

Stanley K. Henshaw and Jennifer Van Vort, Abortion 
Services in the United States, 1987 and 1988, 22 
Fam. Plan. Persp. 102 (1990).................................... 10

Warren M. Hem, Abortion Practice (1984).................  33

Charlotte Hord, Henry P. David, Frances Donnay and 
Merril Wolf, Reproductive Health in Romania: 
Reversing the Ceausescu Legacy, 22 Stud, in Fam.
Plan. 231 (1991)............................................................  40

Dawn M. Johnsen, Note, The Creation o f Fetal Rights: 
Conflicts with Women’s Constitutional Rights o f  
Liberty, Privacy, and Equal Protection, 95 Yale L.
J. 599 (1986)..................................................................  29

Katherine Koot, Jacqueline D. Forrest, and Susan 
Harlap, Comparing the Health Risks and Benefits o f 
Contraceptive Choices, 23 Fam. Plan. Persp. 54
(1991)

PAGE

26



XVII

Lawrence Lader, Abortion (1966)..................................  32

Scott A. Lebolt, David A. Grimes, and Willard Cates,
Jr., Mortality From Abortion and Childbirth: Are 
the Populations Comparable?, 248 J.A.M.A. 188 
(1982).............................................................................  26

Judy Mann, Illegal Abortion’s Deadly Price, Washing­
ton Post, Aug. 3, 1990, at C3....................................  33

Jane Menken, The Health and Demographic Conse­
quences o f Adolescent Pregnancy and Childbearing 
in Adolescent Pregnancy and Childbearing: Findings 
from Research (Catherine S. Chilman ed. 1980)----  25

Ellen Messer and Katherine E. May, Back Rooms:
Voices from the Illegal Abortion Era (1988).............  31

National Abortion Rights Action League, Who 
Decides? A State-by-State Review o f Abortion Rights 
(3d ed. 1992)................................................................  37

National Research Council, Risking the Future: Ado­
lescent Sexuality, Pregnancy, and Childbearing 
(Cheryl H. Hayes ed. 1987)........................................  26

Carl. J. Paverstein, Clinical Obstetrics (1987).............  25

E.J. Quilligan, Prenatal Care in Gynecology and 
Obstetrics: The Health Care o f Women (Seymour L. 
Romney, et al. eds., 2d ed. 1981)..............................  25

Richard H. Schwarz, Septic Abortion (1968)...............  32

Reva Siegal, Reasoning from the Body: A Historical 
Perspective on Abortion Regulation and Questions 
o f Equal Protection, 44 Stan. L. Rev. 261 (1992) .. 26-27

Christine Spokar, Abortion Foes’ Mood Defiant, 
Washington Post, Jan. 21, 1992, at B1.....................  58

PAGE



xvm

PAGE

Christopher Tietze and Stanley K. Henshaw, Induced 
Abortion: A World Review (6th ed. 1986)................. 32

Laurence H. Tribe, Abortion: The Clash o f Absolutes 
(1990)............................................................................. 39

U.S. Bureau of the Census, Current Population 
Reports: Special Studies, Series P-23, No. 162, Stud­
ies in Marriage and the Family....................................  27

Dawn M. Upchurch and James McCarthy, Adolescent 
Childbearing and High School Completion in the 
1980s: Have Things Changed?, 21 Fam. Plan. Persp.
199 (1989).....................................................................  26

Paul Weiler, The Wages o f Sex: The Uses and Limits 
o f Comparable Worth, 99 Harv. L. Rev. 1728 (1986) 27

Women Flock to London Seeking Abortions Under 
Liberal Law, Medical World News Yol. 10 (1969).. 31

Women’s Work, Men’s Work: Sex Segregation on the 
Job (Barbara F. Reskin and Heidi I. Hartmann eds.
1986)...............................................................................27, 33

Laurie Zabin, Marilyn Hirsch and Mark Emerson,
When Urban Adolescents Choose Abortion: Effects 
on Education, Psychological Status and Subsequent 
Pregnancy, 21 Fam. Plan. Persp. 248 (1989)...........  26



In the

gitprentE dkrnrt of tt\z Btatco
October Term, 1991 

Nos. 91-744 and 91-902

Planned Parenthood of Southeastern Pennsylvania, 
Reproductive Health and  Counseling Center, 
Wom en’s H ealth Services, In c ., Wom en’s 
Suburban Clinic, A llentown Women’s Center, 
and Thomas Allen, M.D., on behalf of himself and 
all others similarly situated,

Petitioners and Cross-Respondents,
—v.—

Robert P. Casey, A llan S. Noonan, and Ernest D.
P reate, Jr., personally and in their official capacities,

Respondents and Cross-Petitioners.

BRIEF FOR PETITIONERS AND 
CROSS-RESPONDENTS

OPINIONS BELOW

The opinion of the district court, issued on August 23, 
1990, is reported at 744 F. Supp. 1323 (E.D. Pa. 1990). 104a- 
288a. The decision of the panel of the United States Court of 
Appeals for the Third Circuit, issued on October 21, 1991, is 
reported at 947 F.2d 682 (3d Cir. 1991). la-103a.‘

1 The opinions and statutes involved are reprinted in the Appendix to 
the Petition for a Writ of Certiorari in Case No. 91-744. Citations to this
Appendix are made to the page number therein as “_____ a.” Citations to
the Joint Appendix are made to the page number therein as “ J.A--------- ”



2

JURISDICTION

The final judgment of the court of appeals was entered on 
October 21, 1991. Jurisdiction is proper pursuant to 28 
U.S.C. § 1254(1) (1988), which provides for review by certio­
rari “upon the petition of any party to any civil or criminal 
case, before or after rendition of judgment or decree.” The 
petition and cross-petition for certiorari were granted on Jan­
uary 21, 1992.

CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED

The 1988 and 1989 Amendments to the Pennsylvania Abor­
tion Control Act of 1982, 18 Pa. Cons. Stat. Ann. §§ 3203 
(definition of medical emergency), 3205, 3206, 3207(b), 3208, 
3209, 3214(a) and (f) (1983 & Supp. 1991) are set forth in the 
Appendix to the Petition for Certiorari. 289a-304a.

The First Amendment provides in relevant part: “ Congress 
shall make no law . . . abridging the freedom of speech 
. . . U.S. Const, amend. I.

The Fourteenth Amendment provides in relevant part: “ No 
State shall . . . deprive any person of life, liberty, or prop­
erty, without due process of law; nor deny to any person 
within its jurisdiction the equal protection of the laws.” U.S. 
Const, amend. XIV, § 1.

STATEMENT OF THE CASE

I. HISTORY OF THE LEGISLATION.
In 1988 and again in 1989, following this Court’s ruling in 

Webster v. Reproductive Health Servs., 492 U.S. 490 (1989), 
the Pennsylvania legislature amended the Pennsylvania Abor­
tion Control Act, 18 Pa. Cons. Stat. Ann. §§ 3203-3220 
(1983 & Supp. 1991), imposing a series of highly intrusive 
and burdensome restrictions on women seeking abortion ser­
vices. In large part, the amendments reenacted the statutory 
provisions of the 1982 Act, which this Court held unconstitu-



3

tional in Thornburgh v. American College o f Obstetricians & 
Gynecologists, 476 U.S. 747 (1986). See also City o f Akron 
v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 
(1983).2

Like the provisions of the 1982 Act, the amendments man­
date that a physician provide a woman seeking an abortion 
with a prescribed litany of state-sponsored information dis­
couraging abortion and that the physician delay the proce­
dure for at least 24 hours after she receives this information. 
18 Pa. Cons. Stat. Ann. §§ 3205, 3208; 289a-292a, 298a- 
300a. The amendments also require the collection of detailed, 
particularized information—some of which must be publicly 
disclosed—for every abortion performed. 18 Pa. Cons. Stat. 
Ann. §§ 3207(b), 3214(a) and (f); 298a, 302a-304a.

The amendments also mandate that married women notify 
their husbands of their abortion decisions, 18 Pa. Cons. Stat. 
Ann. § 3209; 300a-302a,3 and that women under the age of 
eighteen obtain either the “ informed consent” of one parent 
or a court order waiving the requirement. 18 Pa. Cons. Stat. 
Ann. § 3206; 292a-297a.4 * While compliance with §§ 3205, 
3206, and 3209, and other provisions of the Act not before 
this Court, is exempted where there is a medical emergency,

2 Following Akron, the Commonwealth of Pennsylvania conceded the 
invalidity of the 24-hour mandatory delay and physician-only counseling pro­
visions of the Act. American College o f Obstetricians & Gynecologists v. 
Thornburgh, 737 F.2d 283, 293 (3d Cir. 1984). Thus, the constitutionality of 
those provisions was not before this Court in Thornburgh.

3 The 1974 Abortion Control Act, an earlier version of the 1982 Act, 
required a married woman to obtain the consent of her husband. It was 
found unconstitutional in Planned Parenthood Ass’n v. Fitzpatrick, 401 F. 
Supp. 554, 564-66 (E.D. Pa. 1975) (three-judge court), aff’d mem. sub nom. 
Franklin v. Fitzpatrick, 428 U.S. 901 (1976). In 1987, the legislature then 
passed a “paternal” notification provision. In vetoing this measure, respon­
dent Casey noted that “ a state cannot delegate to any third-party—even a 
husband—a power that the state cannot exercise itself.” J.A. 595.

4 The 1974 and 1982 Acts also contained parental consent require­
ments that were found constitutionally deficient. See Fitzpatrick, 401 F. 
Supp. at 566-68; American College o f Obstetricians & Gynecologists v.
Thornburgh, 656 F. Supp. 879, 887-90 (E.D. Pa. 1987).



4

the Act’s definition of medical emergency is extremely nar­
row. 18 Pa. Cons. Stat. Ann. § 3203; 289a.

U. HISTORY OF THE LITIGATION.
Six years ago, this Court reaffirmed Roe v. Wade, 410 

U.S. 113 (1973), and found that provisions of the 1982 Act, 
nearly identical to the amendments before this Court today, 
“ wholly subordinate[d] constitutional privacy interests . . . 
in an effort to deter a woman from making a decision that 
. . .  is hers to make.” Thornburgh, 476 U.S. at 759. Relying 
principally on this Court’s decisions in Roe, Thornburgh, and 
Akron, and following a three-day bench trial at which ten 
witnesses testified,5 the district court issued its opinion and 
order on August 24, 1990, enjoining virtually all of the chal­
lenged provisions. 104a-288a.

The trial court’s detailed findings of fact,6 which demon­
strate that the Act endangers women’s lives and health, con­
firm the findings made by this Court in Thornburgh on a 
more limited factual record. The district court rejected the 
Commonwealth’s argument that Webster, 492 U.S. at 517-20, 
and Hodgson v. Minnesota, 110 S. Ct. 2926 (1990), had over­
ruled or modified the strict scrutiny standard of Roe, applied 
in both Thornburgh and Akron. 231a-233a. It found, how­
ever, that this Court’s decision in Bellotti v. Baird, 443 U.S. 
622, 640 (1979) (“ Bellotti II"), required it to judge the con­
stitutionality of the “ informed” parental consent requirement 
of § 3206 under the less protective “undue burden” standard. 
248a. Nevertheless, based on the evidence, the district court 
found this provision invalid under this more deferential stan­
dard. 248a-252a. The Commonwealth appealed.

5 In addition, the district court reviewed two sets of stipulated facts 
and the verifications and testimony of four witnesses from the preliminary 
injunction hearing. J.A. 608-21.

6 The district court carefully documented the record evidence support­
ing each of its 387 findings of fact, none of which was reversed on appeal. 
Given the complete absence of “ an extraordinary reason” to examine the 
district court’s findings, they must be accepted by this Court. Goodman v. 
Lukens Steel Co., 482 U.S. 656, 665 (1987).



5

On October 21, 1991, applying an incorrect interpretation 
of Marks v. United States, 430 U.S. 188 (1977), the Court of 
Appeals for the Third Circuit reversed in part and affirmed 
in part the district court’s judgment, holding that Roe, 
Akron, and Thornburgh are no longer the law of the land 
and that women no longer enjoy a fundamental constitu­
tional right to choose abortion. 30a. Rather, the court of 
appeals held that Webster and Hodgson established a new 
and less protective “ undue burden” standard for reviewing 
the constitutionality of abortion restrictions, a standard first 
suggested in Justice O’Connor’s dissenting opinions in 
Akron, 462 U.S. at 453, 461-64 (O’Connor, J., dissenting) 
and Thornburgh, 476 U.S. at 828-29 (O’Connor, J., dissent­
ing). Rather than remanding the case for application of the 
new standard by the trier of fact, or for further factual devel­
opment relevant to this new standard, the court of appeals 
largely ignored the record and upheld all challenged provi­
sions except the husband notification requirement. These con­
solidated Petitions for Certiorari followed.

m. FACTS.

A. Husband Notification.

Except in extremely limited circumstances, § 3209 of the 
Act requires every married woman to notify her husband that 
she is about to undergo an abortion.7 In the vast majority of 
marriages, wives discuss their abortion choice with their hus­
bands and reach a decision only after serious dialogue. 193a. 
In many troubled and dysfunctional marriages, however, the 
Act forces a woman to involve even an abusive husband in 
her abortion decision, jeopardizing her own health and safety 
as well as that of her children.

Marital abuse is surprisingly common in the United States. 
As the district court found, “ one of every two women will be

7 The Commonwealth neither requires a husband to notify his wife 
about any medical procedures affecting his capacity to have children within 
marriage, nor requires a wife to notify her husband of other surgical proce­
dures, including those that affect her capacity to become a mother. 199a.



6

battered at some time in their [sic] life.” 195a. In addition to 
physical battering,8 which often intensifies during pregnancy, 
196a, some husbands resort to sexual abuse, including rape 
and sexual mutilation; psychological abuse, including verbal 
insults; and abuse of the children or other family members. 
196a, 199a. In an attempt to control all aspects of their 
wives’ lives, some husbands refuse to provide sufficient sup­
port to feed, clothe, and shelter the family, 199a; J.A. 213- 
14; or closely monitor their wives’ whereabouts. J.A. 212-13, 
229-30. The court of appeals found that “ the number of dif­
ferent situations in which women may reasonably fear dire 
consequences from notifying their husbands is potentially 
limitless,” and includes:

women who reasonably fear retaliatory psychological 
abuse; women who reasonably fear retaliatory physical 
or psychological abuse of their children; women who are 
separated following a failed marriage relationship and 
for whom renewal of contact may produce severe emo­
tional distress; women whose husbands have serious 
health problems and who reasonably fear that notifica­
tion will be health threatening; and women whose mar­
riages are severely troubled and who reasonably fear 
that notice will precipitate the demise of the marital rela­
tionship.

70a. The dangerous and potentially deadly consequences of 
forced notification cannot be overstated. As Dr. Lenore 
Walker, a national expert on domestic violence, testified, 
requiring a battered woman to notify her husband is like 
“ giving him a hammer to just beat her.” J.A. 228. See also 
201a.

Two of the exceptions to the husband notification require­
ment purport to relieve women of the devastating conse­
quences of domestic violence caused by the mandatory

8 Bonnie Jean Dillon, a battered woman, testified at trial of “ being 
thrown on the floor in the kitchen and being kicked around with his feet. I 
remember being drug [sic] from the back room of the office and thrown 
down the cellar steps while the secretaries were there. I can remember being 
thrown against the cellar door and smashing my face against the cellar 
door.” J.A. 381.



7

notification. Section 3209(b)(3) provides that the mandatory 
notification does not apply where “ [t]he pregnancy is a result 
of spousal sexual assault . . . which has been reported to a 
law enforcement agency.” Section 3209(b)(4) provides for a 
waiver of notification where the woman reasonably believes 
that notifying her husband “ is likely to result in the infliction 
of bodily injury upon her.” 301a.

Neither of these exceptions provides any meaningful pro­
tection for battered women. Section 3209(b)(4)’s exception is 
expressly limited to situations where the woman fears ‘‘bodily 
injury” to herself. Thus, as the district court found, a mar­
ried woman must notify her abusive husband of her decision 
to obtain an abortion even if he psychologically or economi­
cally coerces her or her children; punishes her children with 
physical violence or sexual abuse; threatens to publicize her 
decision to have an abortion; or threatens to retaliate against 
her in future child custody or divorce proceedings. 194a, 
199a.

Moreover, § 3209(b)(3) applies only in cases where the 
pregnancy is the “ result” of spousal sexual assault that has 
been reported to a law enforcement official. 18 Pa. Cons. 
Stat. Ann. § 3128(c). Consequently, the exception provides 
no assistance when the sexual abuse occurs after the woman 
becomes pregnant, when the sexual abuse does not result in 
pregnancy, or when the woman has not or cannot report the 
abuse. In some cases, rather than exempting the woman, it 
actually triggers notification, for once officials launch an 
investigation or file criminal charges, the husband will be 
notified.

Even where the exceptions apply, they are unlikely to be of 
any aid. Battering and sexually abusive husbands often 
threaten their wives with further violence if they break the 
shroud of secrecy that surrounds the battering. 197a.9 * * Simi­
larly, few survivors of marital rape will be able to report the

9 For example, when asked at trial why she had never told anyone
about her husband’s battering, even after it put her in the hospital five times, 
Ms. Dillon said, “ I was afraid of how he would react if he found out that I 
was telling people about our secret, about what he was doing to me.”
J.A. 383.



8

rape to law enforcement officials. 198a. As Dr. Lenore 
Walker testified at trial, women “ will rarely report to a law 
enforcement agency that they have been sexually abused.” 
J.A. 230.10 Other battered women deny their abuse as a sur­
vival strategy for coping with the pain, and will rarely, if 
ever, discuss their abuse with anyone. 200a-201a. As the dis­
trict court found, the realistic fear of retaliation by the 
abuser, or the psychological condition caused by the abuse, 
will make battered women “unlikely to avail themselves of 
the exceptions to § 3209 . . . regardless of whether the sec­
tion applies to them.” 198a.

B. Biased Patient Counseling and Mandatory Delay.

Section 3205 of the Act requires that a woman give her 
voluntary and informed consent to the abortion procedure. 
289a. But in a radical departure from accepted medical prin­
ciples, § 3205 deems consent “ informed” only when a physi­
cian provides the woman—on pain of criminal penalties and 
license suspension and revocation11—with state-approved 
information.12 As the district court found, this information 
creates the impression that both the Commonwealth and the 
physician “ disapprove! ] of the woman’s decision,” see 179a,

10 For example, despite years of counseling following the break-up of 
her marriage, Ms. Dillon had never revealed the fact that she was a survivor 
of marital rape, until several days before her testimony, and only then after 
repeated questioning by counsel. J.A. 387.

11 The district court found “ no other instance [in which] an informed 
consent regulation provide[s] for criminal penalties.” 180a. The threat of 
criminal prosecution will deter physicians from performing abortions 
because medical malpractice insurance contains no coverage for criminal 
prosecutions. J.A. 144.

12 Included in this information is the nature of the abortion procedure, 
its risks and alternative treatments, the probable gestational age of the fetus, 
and the medical risks of carrying the pregnancy to term. Additionally, 
§§ 3205 and 3208 mandate that physicians or counselors offer the pregnant 
woman materials that give detailed descriptions and pictures of the fetus at 
two-week gestational increments from fertilization until full-term, as well as 
the names of agencies offering alternatives to abortion; and inform the 
woman of the availability of medical assistance benefits and of the father’s 
liability for child support payments if she carries her pregnancy to term. 
289a-290a, 298a-300a.



9

and is a “poorly veiled attempt! ] . . .  to disguise elements 
of discouragement of the abortion decision.” 180a. By insert­
ing its anti-abortion message into the informed consent dia­
logue, the Commonwealth has transformed the physician 
from the impartial counselor mandated by accepted medical 
standards into a partisan proponent of the state’s ideology.

Section 3205 also intrudes heavily on physicians’ discretion 
by requiring them to supply a specified package of informa­
tion to all patients. This conflicts with the accepted medical 
practice of giving patients information tailored to their indi­
vidual needs and circumstances, out of respect for the patient 
who will be “ autonomously making the decision.” 177a; 
J.A. 161.

Much of the required information is not only inflammatory 
and misleading, but is beyond the expertise of medical pro­
fessionals. 179a-180a. Physicians or counselors are required 
to offer women seeking abortions “printed materials which 
describe the unborn child and list agencies which offer alter­
natives to abortion.” 290a. Some of the listed agencies, how­
ever, are ideological anti-abortion groups, notorious for 
giving women inflammatory and inaccurate information. See 
169a. Women must also be told that medical assistance bene­
fits may be available if they carry their pregnancies to term, 
and that the “ father of the unborn child is liable to assist in 
the support of her child . . . .” 290a. But, in truth, most 
women will be ineligible for medical assistance benefits, or 
will, in practice, be unable to collect adequate child support 
payments if they carry their pregnancies to term. See 179a- 
180a. This information will convey the message that the bene­
fits will be adequate to raise a child—a cruel deception for 
low-income women whose decisions may be based, in part, 
upon their financial ability to raise additional children.

Before a woman may obtain an abortion, § 3205 also man­
dates that she delay an additional 24 hours after she is given 
the state-mandated information.13 * By imposing an inflexible

13 In no other area of medical decision-making does the Common­
wealth require a 24-hour delay after a patient gives informed consent.
J.A. 173.



10

waiting period for all women, the Commonwealth signifi­
cantly burdens their rights to terminate pregnancy. Because 
of scheduling complications and a shortage of physicians,14 
the 24-hour mandatory delay will often “ result in delays far 
in excess of 24 hours. For the majority of women in Pennsyl­
vania, delays will range from 48 hours to two weeks.” 172a. 
Moreover, the 24-hour delay will force every woman to make 
a minimum of two visits to an abortion provider. 171a. 
Solely because of the Act, the thousands of Pennsylvania 
women who travel hundreds of miles to obtain an abortion, 
172a, must assume the additional costs of transportation, 
overnight lodging, lost wages, food, and childcare. 172a, 
186a. The delay will also twice subject “many women to the 
harassment and hostility of anti-abortion protestors . . . .” 
172a.15

As the district court found, mandated delay will impose the 
greatest burdens on low-income women, women who live far 
from an abortion provider, and women “ who have difficulty 
explaining their whereabouts, such as battered women, school 
age women, and working women without sick leave.” 173a. 
Indeed, it is likely that many battered women will face addi­
tional battering during the mandated delay. 197a-198a; 
J.A. 227.

14 In 1987, there were no abortions performed in 40 out of 67 counties 
in Pennsylvania. In 12 other counties, there were ten or fewer abortions per­
formed. Pennsylvania Induced Abortion Report, January-December, 1987. 
These figures are consistent with national data finding that 83% of the coun­
ties in the United States have no abortion provider. Stanley K. Henshaw and 
Jennifer Van Vort, Abortion Services in the United States, 1987 and 1988, 22 
Fam. Plan. Persp. 102, 106 (1990).

15 Section 3205’s mandatory delay will also damage the health of 
women by increasing physical and psychological stress, and the risk of com­
plications. For each week of delay, the risk of complications from abortion 
increases by approximately 30% and the risk of death increases by approxi­
mately 50%. See 152a-153a. See also American Public Health Association 
Recommended Program Guide for Abortion Services, 70 Am. Pub. H. J. 
652, 654 (1980). Moreover, the forced delay will push some women into the 
second trimester, substantially increasing both the cost and medical risks of 
an abortion. 173a.



11

C. “ Informed” Parental Consent.
Creating obstacles far harsher than any prior parental 

involvement statute reviewed by this Court, § 3206’s require­
ment of “ informed” parental consent forces both the parent 
and the young woman to come to the physician at least 24 
hours before the abortion for the biased counseling required 
by § 3205. 292a-297a. The provision thus necessitates at least 
one visit to the physician by the woman’s parent and at least 
two, and more likely three, visits by the young woman her­
self, thereby creating “ layers of obstacles” that unduly bur­
den a young woman’s ability to get an abortion. See 172a, 
186a.16 * *

Moreover, requiring a consenting parent to schedule an 
appointment with the physician will cause serious delays, 
even where the young woman’s parent is supportive of her 
decision. For example, many parents will be unable to visit 
the physician promptly due to work schedules, family obliga­
tions, burdensome travel, illness, or lack of financial 
resources. 183a, 185a; J.A. 617. Where the parent is hostile 
to the young woman’s abortion decision, the provision may 
result in unnecessary and dangerous delays, or an effective 
and arbitrary veto of the young woman’s abortion choice. 
J.A. 616.

As the district court found, delays imposed by § 3206 can 
be “ both dangerous and prohibitive” because young women 
often obtain abortions much later in their pregnancies than

16 “ Informed” parental consent for young women seeking abortion is
a significant departure from state law that recognizes the importance of pro­
viding confidential health services to pregnant women under the age of 18. 
Pennsylvania law allows pregnant young women to consent to medical or 
health services to treat pregnancy and venereal disease. 35 Pa. Cons. Stat. 
Ann. § 10103 (1977). Similarly, following a pregnancy, a young woman may 
consent to medical, dental, and health services for herself, 35 Pa. Cons. Stat. 
Ann. § 10101 (1977), and her children. 35 Pa. Cons. Stat. Ann. § 10102 
(1977). Additionally, a young woman may consent to medical, dental, or
health services in cases where a delay in treatment would increase the risk to 
the young woman’s life or health. 35 Pa. Cons. Stat. Ann. § 10104 (1977).



12

older women. 183a.17 Thus, young women are more likely to 
be forced into having a second trimester abortion, with its 
increased health risks, 184a, or may be too late in pregnancy 
to obtain a safe, legal abortion altogether. Some of these 
women will resort to desperate measures: they may try to 
obtain illegal abortions, attempt to self-induce an abortion, 
or attempt suicide. 185a; J.A. 611, 618.

D. Definition of Medical Emergency.
Although §§ 3205, 3206, and 3209 do not apply in medical 

emergencies, the Act limits this important exception to
[t]hat condition which, on the basis of the physician’s 
good faith clinical judgment, so complicates the medical 
condition of a pregnant woman as to necessitate the 
immediate abortion of her pregnancy to avert her death 
or for which a delay will create serious risk of substan­
tial and irreversible impairment of major bodily func­
tion.

18 Pa. Cons. Stat. Ann. § 3203; 289a. A far cry from the 
accepted definition of medical emergency, which gives a phy­
sician broad discretion to protect a woman’s health,18 the 
vague and narrow definition will “ interfere! ] with a physi­
cian’s ability to act in accordance with his [or her] best medi­
cal judgment.” 157a.19 As a result, the Act will cause panic,

17 For a variety of reasons, young women deny that they are pregnant 
and postpone decision-making. Some are unaware that they are pregnant 
because they do not know about their menstrual cycles or because they men­
struate irregularly. Other young women delay seeking medical help because 
of fear, anxiety, and hesitation in divulging to parents sexual activity, preg­
nancy, or their desire to have an abortion. 183a-184a.

18 Pennsylvania’s Emergency Medical Services Act, 35 Pa. Cons. Stat. 
Ann. § 6923 (Supp. 1991), broadly and clearly defines the term as circum­
stances “resulting in a need for immediate medical intervention.” 155a.

19 Although the Act permits physicians to exercise their “good faith 
judgment” in applying the medical emergency exception, the district court 
found that this “ does not alter the fact that a ‘serious risk of substantial and 
irreversible impairment of major bodily function’ must exist for a situation 
to constitute a medical emergency under the Act.” 157a.



13

confusion, and delay in the provision of emergency medical 
services to pregnant women, and will hinder the physician’s 
ability “ to make a rapid response to the detriment of the 
health of the [ ] patient. . . 156a.20

The district court identified three medical conditions— 
inevitable abortion, premature ruptured membrane, and 
preeclampsia—that exemplify those that would fall outside 
the Act’s definition of “ medical emergency.” The court 
found that failure to perform an immediate abortion in these 
circumstances would pose a threat to the woman’s health, but 
would not pose a “ serious risk of substantial and irreversible 
impairment of major bodily function.”

E. Public Disclosure and Reporting Requirements.
Sections 3207(b) and 3214(f) require that every abortion 

facility, including individual physicians, file with the Depart­
ment of Health a quarterly report listing the name and 
address of the facility, and the total number of abortions per­
formed by trimester of pregnancy.21 This information is avail­
able for public inspection and copying if the abortion 
provider receives any state funding, even funding for services 
wholly unrelated to abortion. 298a, 304a.22

Like their counterparts across the nation, Pennsylvania 
abortion providers and the women seeking care face vicious 
harassment and violence by opponents of abortion. See NOW  
v. Operation Rescue, 726 F. Supp. 1483, 1488-90 (E.D. Va. 
1989), a ff’d, 914 F.2d 582 (4th Cir. 1990), cert, granted sub 
nom. Bray v. Alexandria Women’s Health Clinic, 111 S. Ct.

20 Ultimately, some physicians may refuse to offer emergency services 
out of fear of potential criminal and civil liability. J.A. 188.

21 A nearly identical reporting provision in the 1982 Act was found 
unconstitutional. American College o f Obstetricians & Gynecologists v. 
Thornburgh, 613 F. Supp. 656, 670 (E.D. Pa. 1985).

22 Most abortion providers in Pennsylvania receive Medicaid payments 
for abortions provided to survivors of rape and incest and women with life- 
threatening conditions. State funds are also paid to clinics and physicians for 
related medical care, as well as building costs, and other purposes unrelated 
to the provision of abortion services. 210a-211a.



14

1070 (1991). Massive blockades, hate mail, bombings, and 
kidnapping threats against physicians, clinic employees, and 
family members are commonplace.23 Public disclosure of 
their identity will subject abortion providers to increased har­
assment, discourage new physicians from offering abortion 
services, and discourage acceptance of state aid, thereby pre­
venting clinics from offering patients a wide range of health 
care services. 213a-214a.

Section 3214(a) requires a detailed report for each abortion 
performed, including the names of the referring physician 
and those physicians concurring in and assisting late-term 
abortions.24 Additionally, the report must disclose the basis 
for the physician’s judgment that an abortion performed 
after the 24th week was authorized by the Act, § 3214(a)(8), 
and that a medical emergency existed. § 3214(a)(10). Physi­
cians must also report the basis for their determination of 
gestational age. § 3214(a)(ll).

The evidence demonstrated that these aspects of § 3214(a) 
serve no legitimate scientific purpose, will deter physicians 
from referring women to or assisting abortion providers, or 
from acting in the patient’s best interest. 221a-222a. Refer­
ring physicians are “extremely protective of their anonymity” 
for fear that they will be harassed and that they will lose 
patients or hospital privileges. 219a; J.A. 31-32. Indeed, testi­
mony at trial revealed that physicians would not refer 
patients to any abortion provider if their names are required 
on an abortion report. 220a. Evidence also showed that 
requiring physicians to report the basis for their medical

23 David A. Grimes, el al., An Epidemic o f Antiabortion Violence in 
the United States, 165 Am. J. Obst. and Gyn. 1263 (1991). For example, in 
September, 1989, five opponents of abortion forced their way into the offices 
of plaintiff Women’s Health Services and dumped buckets of tar onto the 
main patient care area. 212a. The clinic director’s sixteen-year-old daughter 
was threatened with kidnapping, forcing her family to guard her both at 
home and at school. J.A. 260-63.

24 This report must include the name of the referring physician, 
agency, or service, and the names of the concurring physician and second 
physician for any post-24 week abortion authorized by 18 Pa. Cons. Stat. 
Ann. § 3211(c)(2), (5) (Supp. 1991). See § 3214(a)(1).



15

judgments will make them less willing to act in a pregnant 
patient’s best interests. 222a; J.A. 39.

SUMMARY OF ARGUMENT

Few decisions are more basic to “ individual dignity and 
autonomy” than the right of a woman to choose to terminate 
or continue a pregnancy. Thornburgh, 476 U.S. at 772. So 
proclaimed this Court only six years ago when it reaffirmed 
Roe, 410 U.S. 113 (1973), and invalidated provisions of a 
Pennsylvania law virtually identical to those at issue here.

Once again, this Court must reaffirm Roe and find uncon­
stitutional Pennsylvania’s most recent intrusions on reproduc­
tive liberty. Abandoning Roe by withdrawing the highest level 
of constitutional protection would contravene established 
principles of stare decisis and would jeopardize women’s dig­
nity and equality. Moreover, history makes clear that over­
turning Roe will not end abortion. Instead, permitting states 
to criminalize abortion or impose onerous restrictions will 
tragically and undeniably return thousands of women to 
back-alley or self-induced abortions. Many will die. Others 
will be forced by the state to sacrifice their health or to carry 
unwanted pregnancies to term. Roe's demise will be most 
devastating for low-income, young, rural, or battered 
women, who are too vulnerable to overcome state-imposed 
obstacles.

No legitimate justification supports overturning Roe. Fun­
damental constitutional protection for the abortion right fol­
lows logically and necessarily from a century of this Court’s 
decisions recognizing that personal choices affecting bodily 
integrity, identity, and destiny are largely beyond the reach of 
government. Roe's trimester framework not only fairly 
accommodates the interests of the woman and the state, but 
also serves as a sound guidepost for the courts and state leg­
islatures.

The court of appeals erroneously adopted the vague and 
unworkable “ undue burden” standard of review, which is 
likely to result in arbitrary and discriminatory applications by



16

lower courts. In contrast to the clarity and equity of Roe, 
both the “ undue burden” and “ rational basis” standards 
would sanction and invite intolerable legislative interference 
with private reproductive decisions. Adopting these lesser 
standards would ensure an irrational patchwork of state laws 
and would return to the vicissitudes of local politics what 
Roe properly removed from that forum.

Even under these deferential standards of review, however, 
this Court must find unconstitutional the Act’s challenged 
provisions. Mandatory husband notification violates rights of 
privacy and marital integrity by subjecting intimate marital 
discussions to state surveillance and control, and endangering 
the lives and health of married women compelled to notify 
abusive husbands of their abortion choice. By imposing 
duties only on women and conferring rights solely on men, 
the Act also perpetuates the pernicious stereotype that women 
are subordinate within marriage and incapable of making 
independent moral decisions. The provision thereby violates 
the Constitution’s equal protection guarantees.

Requiring physicians to provide a litany of state-mandated 
information violates the longstanding medical principle that 
the informed consent dialogue must be tailored to the needs 
of each patient, not used to transform the physician into a 
partisan proponent of the state’s ideology. While furthering 
no legitimate purpose, the Act’s 24-hour mandatory delay 
forces women to travel to their physicians on at least two, 
and often three, occasions, thereby increasing the expense 
and medical risks of abortion.

Far more onerous than other parental consent or notifica­
tion statutes upheld by this Court, the Act’s “ informed” 
parental consent requirement presents so insurmountable an 
obstacle that even parents who have participated in, support, 
and consent to their daughter’s abortion decision may be 
unable to comply with the law. Rather than furthering com­
munication between parents and their daughters, the Act 
forces family life to conform to a state-designed ideal.

Furthering no legitimate state interest, the intrusive public 
disclosure and reporting requirements merely enhance the



17

ability of abortion opponents to intimidate physicians 
through violence and harassment. Finally, the Act’s narrow 
medical emergency exception is inconsistent with well- 
established medical standards. By denying pregnant women a 
waiver of the Act’s requirements except in the most dire cir­
cumstances, this provision will jeopardize women’s lives and 
health and discourage the provision of emergency services to 
pregnant women.

In view of the immediate harm that will befall women 
should these provisions go into effect, this Court must 
resoundingly reaffirm Roe. Without its fundamental protec­
tion, women will be unable to maintain the measure of equal­
ity they have won so far, and this Court will forsake its 
historic role as guardian of constitutional liberties.

ARGUMENT

I. THIS COURT MUST REAFFIRM THE CENTRAL
HOLDING OF ROE V. WADE THAT THE RIGHT TO
CHOOSE ABORTION IS A FUNDAMENTAL RIGHT
PROTECTED BY THE CONSTITUTION.
A. This Court Cannot Uphold the Pennsylvania Statute 

Without Abandoning the Strict Scrutiny Standard of 
Review, thereby Overruling Roe v. Wade.

This Court’s landmark decision in Roe, 410 U.S. 113 
(1973), holds profound significance for all Americans. In 
finding a Texas abortion ban unconstitutional, this Court did 
far more than prohibit the most draconian abortion laws. 
Rather, this Court held that the right to make private deci­
sions about childbearing is a constitutional liberty of funda­
mental dimension.

Roe mandates that state laws that intrude upon reproduc­
tive choices—whether to carry a pregnancy to term or have 
an abortion—must be examined with the most exacting scru­
tiny. Id. at 155. Under this standard, only laws necessary and 
narrowly tailored to serve the most compelling state interests 
pass constitutional review. Id.



18

This Court has consistently applied Roe's strict scrutiny 
standard to invalidate not only abortion bans, but also laws 
that encumber the abortion choice with delay, administrative 
hurdles, or expense, or that disproportionately harm young, 
low-income, rural, or battered women. See, e.g., Doe v. Bol­
ton, 410 U.S. 179, 193-200 (1973) (accredited hospitalization 
requirement, hospital review committee approval, and two 
physician concurrence requirements); Planned Parenthood v. 
Danforth, 428 U.S. 52, 67-75 (1976) (husband and parental 
consent); Akron, 462 U.S. at 432-39, 442-51 (24-hour manda­
tory delay, biased counseling, doctor-only counseling, and 
second trimester hospitalization requirements); Thornburgh, 
476 U.S. at 759-68 (biased patient counseling; reporting and 
public disclosure requirements). Roe's central premise—that 
the right to choose abortion is a fundamental right protected 
by the most exacting scrutiny—thus forbids legislation that 
places roadblocks before women seeking abortion or that 
forecloses the abortion option for those women too vulner­
able to overcome the state-imposed burdens.25

The district court found, and the court of appeals acknowl­
edged, that the Pennsylvania law is unconstitutional under 
the strict scrutiny standard of Roe.26 In upholding restrictions 
that this Court already held unconstitutional under Roe, the 
court of appeals found that women no longer enjoy funda­
mental constitutional protection for the right to choose abor­
tion. Declining to apply strict scrutiny, the court of appeals

25 In this regard, Roe is entirely consistent with this Court’s jurispru­
dence in other areas. Recognizing that constitutionally protected freedoms 
“ are protected not only against heavy-handed frontal attack, but also from 
being stifled by more subtle governmental interference,” Bates v. City o f  
Little Rock, 361 U.S. 516, 523 (1960), this Court has repeatedly invalidated 
statutes that inhibit the exercise of fundamental rights. See Shapiro v. 
Thompson, 394 U.S. 618 (1969) (one-year residency requirement as a condi­
tion on welfare assistance violates the right to travel); Bates, supra (compul­
sory disclosure of membership lists violates right of association); Lovell v. 
City o f Griffin, 303 U.S. 444 (1938) (ordinance forbidding distribution of 
any kind of literature without permission from city manager violates the 
right of free expression).

26 See 30a, 225a. Similarly, the Commonwealth effectively conceded 
that the Pennsylvania law could not withstand scrutiny under Roe when it 
asked the lower courts to apply a new, less rigorous standard of review. 225a.



19

measured the constitutionality of the Pennsylvania law under 
the new, far less protective “ undue burden” standard.

Because the invalidity of the instant provisions under Roe 
is indisputable, this Court cannot sustain the decision below 
without overruling Roe or so eviscerating its core holding as 
to render it meaningless. As shown below, Roe is eminently 
sound in principle and workable in practice. Therefore, no 
valid justification exists for this Court to take the radical and 
unprecedented step of withdrawing the highest level of consti­
tutional protection from this fundamental right.27

B. The Doctrine of Stare Decisis Demands Reaffirma­
tion of Roe.

This Court has repeatedly held that the doctrine of stare 
decisis “ is of fundamental importance to the rule of law.” 
Hilton v. South Carolina Pub. Rys. Comm’n, 112 S. Ct. 560, 
563 (1991) (quoting Welch v. Texas Dep’t o f Highways & 
Pub. Transp., 483 U.S. 468, 494 (1987)). Fidelity to prece­
dent

ensure[s] that the law will not merely change erratically, 
but will develop in a principled and intelligible fashion. 
[It] permits society to presume that bedrock principles 
are founded in law rather than in the proclivities of indi­
viduals, and thereby contributes to the integrity of our 
constitutional system of government, both in appearance 
and fact.

Vasquez v. Hillery, 474 U.S. 254, 265-66 (1986).28 “ [E]ven in
constitutional cases, the doctrine carries such persuasive

27 In addition to the “ liberty” guarantee of the Fourteenth Amend­
ment, the right to abortion may be grounded in other constitutional rights: 
equal protection, freedom of religion, the rights to be free from involuntary 
servitude and cruel and unusual punishment, and the rights retained by the 
people under the Ninth Amendment. In the event that this Court abandons 
Roe, it should remand this case for consideration of the other constitutional 
principles that support the right to choose abortion.

28 See generally Patterson v. McLean Credit Union, 491 U.S. 164, 172 
(1989) (“[SJtare decisis is a basic self-governing principle within the Judicial 
Branch, which is entrusted with the sensitive and difficult task of fashioning 
and preserving a jurisprudential system that is not based upon ‘an arbitrary



20

force that . . . departure from precedent [must] be supported 
by some ‘special justification.’ ” Payne v. Tennessee, 111 S. 
Ct. 2597, 2618 (1991) (Souter, J., concurring) (quoting 
Arizona v. Rumsey, 467 U.S. 203, 212 (1984)).

By overruling Roe, this Court would sanction an abrupt 
departure from 200 years of American constitutional history. 
Never before has this Court bestowed, then taken back, a 
fundamental right that has been a part of the settled rights 
and expectations of literally millions of Americans for nearly 
two decades.29 To regress by permitting states suddenly to 
impose burdensome regulations or criminalize conduct that a 
full generation of women has always known to be constitu­
tionally protected would be anathema to any notion of prin­
cipled constitutional decision-making.30

Hence, overturning Roe would implicate the weightiest of 
stare decisis concerns: as Justice Harlan recognized, stare 
decisis “provides the stability and predictability required for 
the ordering of human affairs over the course of time 
. . . .” Williams v. Florida, 399 U.S. 78, 127 (1970) 
(Harlan, J., concurring in part and dissenting in part). More 
recently, this Court emphasized:

Stare decisis has added force when the legislature, in the 
public sphere, and citizens, in the private realm, have 
acted in reliance on a previous decision, for in this 
instance overruling the decision would dislodge settled 
rights and expectations.

Hilton, 112 S. Ct. at 564.31

discretion.’ ” (quoting The Federalist, No. 78, at 490 (Alexander Hamilton) 
(H. Lodge ed. 1888)).

29 By 1989, approximately sixteen million women had obtained legal 
abortions. If current abortion rates continue, nearly half of all women of 
reproductive age will have had an abortion by the time they reach age forty- 
five. Rachel B. Gold, Abortion and Women’s Health: A Turning Point for  
America? 22 (Alan Guttmacher Institute, 1990) [hereinafter Abortion and 
Women’s Health].

30 Stare decisis requires adherence to the strict scrutiny standard and 
trimester framework of Roe, as well as its specific holding. See County o f  
Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 668 (1989) 
(Kennedy, J., concurring in part and dissenting in part).

31 Cf. Payne, 111 S. Ct. at 2610 (“ Considerations in favor of stare 
decisis are at their acme . . . where reliance interests are involved”).



21

Further, Roe does not stand alone. On the contrary, it 
defines the contours of privacy, which protects individuals 
from governmental interference in personal decision-making 
and is the foundation for numerous important freedoms.32 As 
Justice Scalia has noted, “ the respect accorded prior deci­
sions increases, rather than decreases, with their antiquity, as 
the society adjusts itself to their existence, and the surround­
ing law becomes premised on their validity.” South Carolina 
v. Gathers, 490 U.S. 805, 824 (1989) (Scalia, J., dissenting).

Twice in the past decade, this Court has reconsidered and 
resoundingly reaffirmed Roe. In Akron, 462 U.S. 416, this 
Court rejected the argument that Roe “erred in interpreting 
the Constitution,” id. at 419, and enumerated the “especially 
compelling reasons for adhering to stare decisis in applying 
the principles of Roe . . . .”

That case was considered with special care. It was first 
argued during the 1971 Term, and reargued—with exten­
sive 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 prin­
ciple that a woman has a fundamental right to make the 
highly personal choice whether or not to terminate her 
pregnancy.

Id. at 420 n.l. '

In Thornburgh, this Court held: “ [ajgain today, we reaf­
firm the general principles laid down in Roe and in Akron

32 For example, courts have relied on Roe when recognizing the right 
to use contraceptives, Carey v. Population Servs. Int’l, 431 U.S. 678, 684-86 
(1977); the right to be free from overly restrictive maternity leave regulations, 
Cleveland Bd. o f Educ. v. La Fleur, 414 U.S. 632, 639-40 (1974); the right to 
marry, Zablocki v. Redhail, 434 U.S. 374, 384-86 (1978); the right to infor­
mational privacy, Whalen v. Roe, 429 U.S. 589, 599-600 (1977); the right to 
be free from forced sterilization, Ruby v. Massey, 452 F. Supp. 361, 366 (D. 
Conn. 1978); the right of bodily integrity, In re Quinlan, 355 A .2d 647, 663 
(N.J. 1976); Superintendent o f Belchertown State School v. Saikewicz, 370 
N.E.2d 417, 424 (Mass. 1977); and the right to be free from court-ordered 
contraception, People v. Pointer, 199 Cal. Rptr. 357, 364 (Ct. App. 1984), or 
court-ordered abortion, In re Mary P., 444 N.Y.S.2d 545, 546-47 (Fam. Ct. 
1981).



22

. . . . [T]he constitutional principles that led this Court to 
its decisions in 1973 still provide the compelling reason for 
recognizing the constitutional dimensions of a woman’s right 
to decide whether to end her pregnancy.” 476 U.S. at 759.

Given the certainty of disrupting the lives and settled 
expectations of countless women, overturning Roe would be 
“a rare and grave undertaking,” Webster, 492 U.S. at 558 
(Blackmun, J., concurring in part and dissenting in part), 
which could be justified only by a strong showing by the 
Commonwealth that special circumstances demand that 
result. Only if the precedent is “ unsound in principle,” 
“ unworkable in practice,” or has led to inconsistent, unfore­
seen, or anomalous results, see Garcia v. San Antonio Metro­
politan Transit Auth., 469 U.S. 528, 546-47 (1985); Vasquez, 
474 U.S. at 266, would this radical step be warranted.33 None 
of these justifications is present here.

C. Roe Is Soundly Based in the Constitution and Sets 
Forth a Fair and Workable Standard of Adjudica­
tion.

1. The decision to terminate or continue a pregnancy 
is a fundamental right.

This Court has long recognized rights of privacy and 
bodily integrity. As early as 1891, it held,

No right is held more sacred, or is more carefully 
guarded by the common law, than the right of every

33 Overruling a decision so recently reaffirmed would seriously under­
mine public confidence in the integrity of this Court, especially when nothing 
has changed but the Court’s composition. See Brief Amici Curiae of Certain 
Members of Congress. See Florida Dep’t o f Health v. Florida Nursing 
Homes A ss’n, 450 U.S. 147, 154 (1981) (Stevens, J., concurring) (stare deci­
sis gives citizens “ confidence that the rules on which they rely in ordering 
their affairs . . .  are rules of law and not merely the opinions of a small 
group of men who temporarily occupy high office”). “ [I]t should go without 
saying that the vitality of . . . constitutional principles cannot be allowed to 
yield simply because of disagreement with them.” Brown v. Board o f Educa­
tion, 349 U.S. 294, 300 (1955). See also Thornburgh, 476 U.S. at 771-72.



23

individual to the possession and control of his own per­
son, free from all restraint or interference of others

Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 251-52 
(1891). See also Olmstead v. United States, 277 U.S. 438, 478 
(1928) (Brandeis, J., dissenting) (“The makers of our Consti­
tution . . . conferred, as against the government, the right to 
be let alone, the most comprehensive of rights and the right 
most valued by civilized men”). Throughout the last century, 
this Court recognized that the fundamental right of privacy 
protects citizens against governmental intrusion in such inti­
mate family matters as procreation, childrearing, marriage, 
and contraceptive choice. Meyer v. Nebraska, 262 U.S. 390, 
399 (1923); Pierce v. Society o f Sisters, 268 U.S. 510, 534-35 
(1925); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 
535, 541 (1942); Griswold v. Connecticut, 381 U.S. 479, 485- 
86 (1965); Loving v. Virginia, 388 U.S. 1, 12 (1967); Eisen- 
stadt v. Baird, 405 U.S. 438, 453 (1972). See also Stanley v. 
Georgia, 394 U.S. 557, 564 (1969). These cases embody the 
principle that personal decisions that profoundly affect bodily 
integrity, identity, and destiny should be largely beyond the 
reach of government. Eisenstadt, 405 U.S. at 453; Thorn­
burgh, 476 U.S. at 772. See also Thornburgh, 476 U.S. at 
111 n.5 (Stevens, J., concurring) (concept of privacy 
embodies the “moral fact that a person belongs to himself 
and not others nor to society as a whole” ) (quoting Charles 
Fried, Correspondence, 6 Phil. & Pub. Aff. 288-89 (1977)).

In Roe, this Court correctly applied these principles to a 
woman’s right to choose abortion. The decision to terminate 
or continue a pregnancy has an impact on a woman’s life 
equal to, if not greater than, decisions about contraception or 
marriage. 410 U.S. at 153.34 As this Court held in Thorn-

34 “ Indeed, if one decision is more ‘fundamental’ to the individual’s 
freedom than the other, surely it is the post-conception decision that is the 
more serious.” Thornburgh, 476 U.S. at 776 (Stevens, J., concurring). An 
individual denied the right to use contraception may be able to avoid preg­
nancy by avoiding sexual intercourse. A pregnant woman has no alternative 
besides abortion to avoid forced parenthood, Carey, 431 U.S. at 713



24

burgh, 476 U.S. at 772, few decisions are more basic to 
“ individual dignity and autonomy,” or more appropriate to 
the “ private sphere of individual liberty,” than the uniquely 
personal and self-defining decision of whether to continue a 
pregnancy. See also Carey, 431 U.S. at 684.

State restrictions on abortion violate a woman’s privacy in 
two ways.35 First, compelled continuation of a pregnancy 
infringes on a woman’s right to bodily integrity by imposing 
substantial physical intrusions and significant risks of physi­
cal harm. As Justice O’Connor explained in Cruzan v. Direc­
tor, Missouri Dep’t o f Health, 110 S. Ct. 2841, 2856 (1990) 
(O’Connor, J., concurring),

Because our notions of liberty are inextricably entwined 
with our idea of physical freedom and self- 
determination, this Court has often deemed state incur­
sions into the body repugnant to the interests protected 
by the Due Process Clause.

In addition to the dramatic physical changes that take 
place during pregnancy,36 pregnant women also experience a 
wide range of adverse health consequences. As many as 
ninety percent of pregnant women develop gastrointestinal 
problems, including nausea and vomiting.37 Many women 
confront potentially more serious problems including gesta-

(Stevens, J., concurring), and pregnancy itself is all too often the result of 
rape, incest, or contraceptive failure—circumstances outside the woman’s 
control.

35 See generally Susan R. Estrich & Kathleen M. Sullivan, Abortion 
Politics: Writing for an Audience o f One, 138 U. Pa. L. Rev. 119, 126-30 
(1989).

36 Pregnancy increases a woman’s uterus 500 to 1000 times its original 
capacity and her body weight by 25 pounds or more. F. Gary Cunningham, 
Paul C. MacDonald & Norman F. Gant, Williams Obstetrics 129-34, 136-37 
(18th ed. 1989) [hereinafter Williams Obstetrics].

37 David N. Danforth and James R. Scott, Obstetrics and Gynecology 
334-35 (5th ed. 1986) [hereinafter Obstetrics and Gynecology]. Other com­
mon problems include back pain, varicose veins, hemorrhoids, headaches, 
and water retention. Williams Obstetrics at 137, 270-73.



25

tional diabetes, hypertension,38 preeclampsia (high blood 
pressure, water retention, and protein in urine), and eclamp­
sia (a severe form of preeclampsia characterized by headaches 
and seizures potentially leading to coma).39

Labor and delivery pose additional health risks and physi­
cal demands. Vaginal delivery entails extreme pain, often 
lasting up to thirteen hours and in many cases longer,40 and 
substantial risk of infection and laceration.41 The nearly 
twenty-five percent of women who deliver by cesarean section 
are exposed to even higher risks of death and adverse health 
consequences.42

In sum, as Chief Justice Rehnquist has recognized, preg­
nancy entails “ profound physical, emotional and psychologi­
cal consequences . . . .” Michael M. v. Sonoma County 
Superior Court, 450 U.S. 464, 471 (1981). Indeed, restrictive 
abortion laws force women to endure physical invasions far 
more substantial than those this Court has held to violate the 
constitutional principle of bodily integrity in other contexts. 
See e.g. Botsford, 141 U.S. at 251-52 (refusing to order phys-

38 Hypertension complicates about six or seven percent of pregnancies. 
Williams Obstetrics at 3. During pregnancy, hypertensive women are at high 
risk for serious complications, including convulsions and coma. Id.

39 Williams Obstetrics at 654-72, 818-19. The medical risks of preg­
nancy are compounded for certain women. Among those facing the greatest 
risks are teenagers, especially those younger than 15. They suffer high inci­
dences of toxemia, anemia, premature labor, and prolonged labor. See Jane 
Menken, The Health and Demographic Consequences o f Adolescent Preg­
nancy and Childbearing, in Adolescent Pregnancy and Childbearing: Find­
ings from Research 181, 187 (Catherine S. Chilman ed., 1980).

40 See E. J. Quilligan, Prenatal Care in Gynecology and Obstetrics: The 
Health Care o f Women 579, 614 (Seymour L. Romney, et al. eds., 2d ed. 
1981) [hereinafter Gynecology and Obstetrics],

41 Id. at 626-27, 632-33, 637-38.

42 Robert K. Creasy and Robert Resnik, Maternal-Fetal Medicine: 
Principles and Practice 530 (2d ed. 1989). In 25% to 50% of cesarean sec­
tions, women face such complications as infection, hemorrhage, aspiration, 
swelling of the lungs, and pulmonary embolism. Obstetrics and Gynecology, 
at 738. The risk of maternal death is two to four times greater than in vaginal 
delivery. Carl J. Paverstein, Clinical Obstetrics 887 (1987).



26

ical examination); Winston v. Lee, 470 U.S. 753 (1985) 
(invalidating surgical removal of a bullet from a murder sus­
pect); Rochin v. California, 342 U.S. 165 (1952) (invalidating 
stomach-pumping).43

In addition to violating principles of bodily integrity, abor­
tion restrictions also deprive women of the right to make 
autonomous decisions about reproduction and family 
planning—critical life choices that this Court has long 
deemed central to the right of privacy. Roe, 410 U.S. at 152- 
53; id. at 211 (Douglas, J., concurring) (Fourteenth Amend­
ment protects “ freedom of choice in the basic decisions of 
. . . life” ). Because parenthood has a dramatic impact on a 
woman’s educational prospects,44 employment opportuni­
ties,45 and self-determination, restrictive abortion laws deprive

43 In contrast, the severity and frequency of death or serious health 
consequences from abortion is significantly less than with childbirth. A 
woman is 20 times more likely to die from giving birth than from having an 
abortion. Katherine Koot, Jacqueline D. Forrest, and Susan Harlap, Com­
paring the Health Risks and Benefits o f Contraceptive Choices, 23 Fam. 
Plan. Persp. 54, 57 (1991). See also Scott A. Lebolt, David A. Grimes, and 
Willard Cates, Jr., Mortality From Abortion and Childbirth: Are the Popu­
lations Comparable?, 248 J.A.M.A. 188, 191 (1982). Up to the eighth week 
of pregnancy, abortion is more than 20 times safer than childbirth. Id. at 
191. Similarly, the non-fatal health risks associated with legal abortion are 
very limited and substantially lower than the risks of childbirth. Williams 
Obstetrics at 506.

44 Forced parenthood curtails the ability of teenagers to obtain even 
the most basic education. “ [YJoung women who give birth while they are in 
junior high school or high school complete on average fewer years of school, 
are less likely to earn a high school diploma, and are less likely to go on to 
college and graduate study than those who delay childbearing until their 
twenties.” National Research Council, Risking the Future: Adolescent Sexu­
ality, Pregnancy, and Childbearing 126 (Cheryl D. Hayes ed. 1987). Indeed, 
56% of women who became mothers at age 17 or younger do not complete 
high school. Dawn M. Upchurch and James McCarthy, Adolescent Child­
bearing and High School Completion in the 1980s: Have Things Changed?, 
21 Fam. Plan. Persp. 199, 200 (1989). See also Laurie Zabin, Marilyn Hirsch 
and Mark Emerson, When Urban Adolescents Choose Abortion: Effects on 
Education, Psychological Status and Subsequent Pregnancy, 21 Fam. Plan. 
Persp. 248 (1989).

45 Employment opportunities for women with children are severely 
limited. See generally Reva Siegal, Reasoning from the Body: A Historical



27

her of basic control of her life. For these reasons, “ the deci­
sion whether or not to beget or bear a child” lies at “ the 
very heart of this cluster of constitutionally protected 
choices.” Carey, 431 U.S. at 685. Indeed, the right to choose 
abortion partakes of those constitutional freedoms at the 
heart of a free society: the freedoms of spirit and self- 
determination. See West Virginia State Bd. o f Educ. v. 
Barnette, 319 U.S. 624, 636-37, 642 (1943); Wooley v. May­
nard, 430 U.S. 705 (1977).

2. The Roe trimester framework is workable and 
fairly accommodates competing interests.

In Roe, this Court identified only two state interests that 
are sufficiently compelling to override a woman’s fundamen­
tal right to choose abortion. The state has “ an important and 
legitimate interest in preserving and protecting the health of 
the pregnant woman” 46 and an “ important and legitimate 
interest in protecting the potentiality of human life.” 410 
U.S. at 162.

Perspective on Abortion Regulation and Questions o f  Equal Protection, 44 
Stan. L. Rev. 261, 375-78 (1992); Victor R. Fuchs, Women’s Quest for Eco­
nomic Equality, 3 J. Econ. Persp. 25 (1989). Because the workplace typically 
does not accommodate parental responsibilities, and because child care is 
often unavailable or unaffordable, women, who bear primary responsibility 
for young children, are severely disadvantaged in the workplace. Many 
women are forced to leave their jobs to care for their children. See Women’s 
Work, Men’s Work: Sex Segregation on the Job 73-74 (Barbara F. Reskin 
and Heidi I. Hartmann eds. 1986). Others obtain part-time work or move to 
lower paying, less skilled positions in order to meet parental responsibilities. 
Id. at 74. See also Paul Weiler, The Wages o f Sex: The Uses and Limits of 
Comparable Worth, 99 Harv. L. Rev. 1728, 1786 (1986) (the “addition of 
each child enhances the man’s earnings by another three percent while 
depressing that of the woman by fully ten percent”). Where a woman raises a 
child alone, the economic consequences are even more devastating. U.S. 
Bureau of the Census, Current Population Reports: Special Studies, Series P- 
23, No. 162, Studies in Marriage and the Family, 18 (approximately half the 
children in households headed by women live in poverty).

46 Petitioners do not dispute that the state possesses a compelling inter­
est in the protection of women’s health. The restrictions at issue here, how­
ever, fail to further this interest. See infra, Section IV.



28

Roe's trimester framework establishes that the latter inter­
est is not sufficiently compelling to override a woman’s right 
to choose abortion until the point of viability, i.e. that stage 
in pregnancy when the fetus is capable of independent sur­
vival. Even then, the state’s interest is paramount only in 
cases in which the woman’s life or health are not endangered 
by continued pregnancy. Id. at 163-64.

The Roe trimester framework constitutes a fair and logical 
means of accommodating the interests of the woman and the 
state. The compelling state interest in the fetus logically arises 
at the point of viability:

The viability line . . . marks that threshold moment 
prior to which a fetus cannot survive separate from the 
woman and cannot reasonably and objectively be 
regarded as a subject of rights or interests distinct from, 
or paramount to, those of the pregnant woman. At the 
same time, the viability standard takes account of 
the undeniable fact that as the fetus evolves into its 
postnatal form, and as it loses its dependence on the 
uterine environment, the State’s interest in the fetus’ 
potential human life, and in fostering a regard for 
human life in general, becomes compelling.

Webster, 492 U.S. at 553-54 (Blackmun, J., concurring in 
part and dissenting in part).47 Moreover, by placing the com­
pelling point at fetal viability, Roe fairly and sensibly “ safe­
guard^] the constitutional liberties of pregnant women while 
recognizing and accommodating the State’s interest in poten­
tial human life.” 4* Id. at 553.

47 Roe is consistent with the historic legal tradition of assigning greater 
value to fetal life late in pregnancy. As this Court observed in Roe, to the 
extent that limitations on abortion did exist in ancient and common law, they 
were imposed after quickening or “ viability.” Roe, 410 U.S. at 132-36. See 
generally Brief Amici Curiae of American Historians. 48

48 The suggestion that the point of viability will recede with advances 
in medical technology and that Roe is therefore on “ a collision course with 
itself,” Akron, 462 U.S. at 458 (O’Connor, J., dissenting), has no medical 
foundation. While substantial strides have been made in recent years in sav­
ing infants born between 24 and 28 weeks, the earliest point of fetal viability



29

This Court must reject the view that the state’s interest in 
potential life is compelling throughout pregnancy.49 That view 
would render meaningless this Court’s recognition of the 
abortion choice as a protected liberty interest of fundamental 
importance.50 Any restriction, even criminalization of abor­
tion in virtually all circumstances, might be justified by refer­
ence to the state’s compelling interest in potential life. 
Webster, 492 U.S. at 555-56 (Blackmun, J., concurring in 
part and dissenting in part). In addition, a compelling interest 
in potential life throughout pregnancy might justify other 
extreme intrusions on pregnant women’s liberty. For exam­
ple, would government be free to force pregnant women to 
act in whatever ways it determined were optimal for the fetus 
in order to further its compelling interest in fetal life?51 
Could government compel a woman to undergo a cesarean 
section or fetal surgery to further its interests? Clearly, these

has remained at about 24 weeks gestation—the same as it was at the time Roe 
was decided. Webster, 492 U.S. at 554 n.9 (Blackmun, J., concurring in part 
and dissenting in part). See generally Brief Amici Curiae of 167 Distin­
guished Scientists and Physicians, Including 11 Nobel Laureates at 9-13, 
Webster, supra (No. 88-605).

49 See, e.g., Thornburgh, 476 U.S. at 795 (White, J., dissenting).

50 Surely, as the Court of Appeals for the District of Columbia recog­
nized, “ a fetus cannot have rights . . . superior to those of a person who has 
already been born.” In reA .C ., 573 A.2d 1235, 1244 (D.C. 1990) (en banc). 
See also Roe, 410 U.S. at 158.

51 Imagine, for example, that a state made the following findings: com­
plete rest in the first three months of pregnancy reduced miscarriages 
by 9%, and working at video display terminals increased miscarriages 
by 4%. On these bases the state passed a law prohibiting all pregnant 
women from working at display terminals or working anywhere more 
than four hours a day during the first three months of pregnancy. In 
both of these cases, if the state justified the imposition by asserting its 
compelling governmental interest in protecting all fetal life, it could 
contend that there was no less restrictive alternative to this seemingly 
Draconian measure.

Walter Dellinger and Gene B. Sperling, Abortion and the Supreme Court: 
The Retreat from Roe v. Wade, 138 U. Pa. L. Rev. 83, 116 (1989). See also 
Dawn M. Johnsen, Note, The Creation o f Fetal Rights: Conflicts with Wom­
en’s Constitutional Rights o f  Liberty, Privacy, and Equal Protection, 95 
Yale L. J. 599 (1986).



30

profoundly disturbing derailments of personal liberty would 
be incompatible with this Court’s recognition as “ fundamen­
tal” those rights necessary to a “ free, egalitarian and demo­
cratic society.” Thornburgh, 476 U.S. at 793 (White, J., 
dissenting). See also International Union, U.A.W. v. Johnson 
Controls, Inc., I l l  S. Ct. 1196, 1207 (1991) (“ [decisions 
about the welfare of future children must be left to the par­
ents who conceive, bear, support, and raise them rather than 
to the employers who hire those parents”).52

Finally, the Roe trimester framework has been a workable 
guidepost for courts and state legislatures. During the last 
nineteen years, lower courts, which have cited the decision in 
over 3500 cases, have had little difficulty applying Roe's clear 
mandates. With consistent application and reaffirmation by 
this Court, questions regarding Roe's meaning were resolved 
and lower courts were readily able to determine whether state 
restrictions were constitutional.53 State legislatures, also 
understanding Roe's mandates, passed fewer laws restricting 
abortions for adult women.54

52 In other contexts, this Court has refused to allow a state’s interest to 
ride roughshod over a constitutional right. See, e.g., City o f  Richmond v. 
J.A. Croson Co., 488 U.S. 469, 498 (1989) (interest in redressing societal dis­
crimination deemed not to be sufficiently compelling to justify race­
conscious remedies because it “ ‘has no logical stopping point’ ” ) (quoting 
Wygant v. Jackson Bd. o f Educ., 476 U.S. 267, 275 (1986) (plurality opin­
ion)).

53 See, e.g., Charles v. Carey, 579 F. Supp. 464 (N.D. 111. 1983), a ffd  
in part and rev’d in part sub nom. Charles v. Daley, 749 F.2d 452 (7th Cir. 
1984), appeal dismissed sub nom. Diamond v. Charles, 476 U.S. 54 (1986); 
Margaret S. v. Treen, 597 F. Supp. 636, 653-66 (E.D. La. 1984), aff’d sub 
nom. Margaret S. v. Edwards, 794 F.2d 994 (5th Cir. 1986); Ragsdale v. 
Turnock, 841 F.2d 1358, 1372-73 (7th Cir. 1988), proceedings deferred, 493 
U.S. 987 (1989).

54 For example, in 1979, the year after the Akron ordinance was 
adopted, 10 states enacted similar laws. In apparent response to lower federal 
court decisions declaring these laws unconstitutional, the numbers subse­
quently declined to four laws in 1980, and three in 1981. Patricia Donovan, 
Fertility-Related State Laws Enacted in 1981, 14 Fam. Plan. Persp. 63, 66 
(1982). In 1984, the year after Akron was decided, only one state legislature 
enacted a comprehensive anti-abortion statute. The Alan Guttmacher Insti­
tute, Legislative Record, State Legislatures— 1984 Bills Enacted (1984).



31

Even if it could be said, however, that the application of 
Roe has posed difficulties, complexity in application has 
never provided the basis for abandoning constitutional pro­
tection for a fundamental right. Daniels v. Williams, 474 
U.S. 327, 334-35 (1986) (citing LeRoy Fibre Co. v. Chicago, 
M. & St. P. R. Co., 232 U.S. 340, 354 (1914) (Holmes, J., 
partially concurring)); see also Webster, 492 U.S. at 549-50 
(Blackmun, J., concurring in part and dissenting in part). A 
doctrine’s legitimacy is not undermined by the challenge of 
applying constitutional doctrines and making careful differen­
tiations between similar circumstances. 492 U.S. at 549-52 
(Blackmun, J., concurring in part and dissenting in part). 
Rather, “ these careful distinctions reflect the process of con­
stitutional adjudication itself’ and the discharge of this 
Court’s “duty to do justice carefully, especially when funda­
mental rights rise or fall with [its] decision.” Id. at 550, 552.

D. Roe's Guarantee of Safe, Legal Abortion Has Been 
of Profound Importance to the Lives, Health, and 
Equality of American Women.

In addition to its soundness and workability as a constitu­
tional doctrine, Roe has proven an enormously wise decision 
of immeasurable benefit to the lives, health, and equality of 
American women. First, Roe has allowed millions of women 
to escape the dangers of illegal abortion and forced preg­
nancy. Despite the illegality or highly restricted availability of 
abortion in the years before Roe, women always obtained 
abortions.55 Women who could afford the often extraordi­
nary expense traveled to a place where abortion was legal;56

55 See generally, Ellen Messer and Katherine E. May, Back Rooms: 
Voices from the Illegal Abortion Era (1988); Abortion and Women’s Health, 
supra note 29.

56 Prior to 1970, when abortion was legalized in New York, women 
traveled to foreign countries to obtain abortions. Women Flock to London 
Seeking Abortions Under Liberal Law, Medical World News Vol. 10, pp. 24- 
27 (1969). In 1972, 44% of all abortions in the United States were obtained 
outside a woman’s state of residence. Abortion and Women’s Health at 3. 
For example, in the two and one-half years preceding Roe, nearly 350,000 
women traveled to New York State to obtain a legal abortion. Id. The need 
to travel resulted in delayed abortions and, consequently, increased medical 
risks. Id.



32

less affluent women turned to illegal procedures or self- 
induced abortions. In the 1950’s and 1960’s, an estimated 
200,000 to 1.2 million illegal abortions occurred annually in 
the United States.57 As a result of these back-alley and self- 
induced abortions, as many as 5000 to 10,000 women died 
each year,58 and many other women suffered severe physical 
and psychological injury. Still other women endured forced 
pregnancy and its attendant health risks.59 And history makes 
clear that, without constitutional protection, low-income 
women, who are disproportionately women of color, suffered 
the most.60

Second, the nationwide legalization of abortion following 
Roe resulted in dramatic advances in the safety of abortion, 
and, as a consequence, there were substantial decreases in the 
total number of abortion-related deaths and complications. 
Between 1973—the year Roe was decided—and 1985, the 
death rate for abortion fell more than eight times, from 3.4 
deaths per 100,000 in 1973 to 0.4 deaths per 100,000 in 
1985.61 Similarly, abortion-related complications requiring 
hospitalization fell sharply during the 1970’s, with the steep­
est drop following Roe in 1973.62 Today, at all points in preg-

57 Christopher Tietze and Stanley K. Henshaw, Induced Abortion: A 
World Review 43 (6th ed. 1986); Willard Cates, Jr. and Roger W. Rochat, 
Illegal Abortions in the United States: 1972-1974, 8 Fam. Plan. Persp. 86, 89 
(1976) [hereinafter Illegal Abortions].

58 See Lawrence Lader, Abortion 3 (1966); Illegal Abortions at 86-90; 
Richard H. Schwarz, Septic Abortion 1 (1968).

59 See Section I.C .l. supra. Women with unwanted pregnancies have a 
higher rate of post-partum infection, hemorrhage, and post-partum depres­
sion, and sometimes lasting psychological damage, than women who want to 
carry their pregnancies to term. Willard Cates, Jr., Legal Abortion: The 
Public Health Record, 215 Sci. 1586, 1587 (1982).

60 Mortality rates from illegal abortions were as much as 12 times 
higher for women of color than for white women. Illegal Abortions at 87-88. 
“ More than two-thirds of the women who died from illegal abortions from 
1972 to 1974 were black or from some other minority group.” Abortion and 
Women’s Health at 5. See generally Brief Amici Curiae of NAACP Legal 
Defense Fund, et al.

61 Abortion and Women’s Health at 28.

62 Id. at 32.



33

nancy, abortion poses a lower risk of death than does child­
birth.63

Experience throughout this country’s history amply demon­
strates that overturning Roe will not end abortion. Instead, 
permitting states to criminalize abortion or impose burden­
some restrictions, either singularly or cumulatively, will tragi­
cally and undeniably return women to illegal, back-alley 
practitioners or self-abortions.64 As in the days before Roe, 
the number of abortion-related deaths and injuries will soar 
and women will be forced to continue unwanted pregnancies 
against their will.

Finally, by affording women greater control over their 
childbearing, Roe has permitted American women to partici­
pate more fully and equally in every societal undertaking. 
The option of safe, legal abortion has enabled great numbers 
of women to control the timing and size of their families and 
thus continue their education, enter the workforce, and oth­
erwise make meaningful decisions consistent with their own 
moral choices. As a result, women have experienced signifi­
cant economic and social gains since Roe.65 It is simply 
unconscionable for this Court to allow hostile state legisla­
tures to force women back to the days when “ the female 
[was] destined solely for the home and rearing of the family, 
and only the male for the marketplace and the world of 
ideas.” Stanton v. Stanton, 421 U.S. 7, 14-15 (1975). To do 
so would wreak havoc on a century of constitutional doctrine

63 Tietze & Henshaw, supra note 57, at 107-13. Induced abortion is one 
of the most common and safest surgical procedures performed in this coun­
try, with half the risk of death involved in tonsillectomy and one-hundredth 
the risk of death involved in appendectomy. Warren M. Hern, Abortion 
Practice 23-24 (1984). See also supra note at 43.

64 For example, because Indiana Public Law 106 required parental con­
sent, 17-year-old Rebecca Bell resorted to an illegal abortion, which resulted 
in a fatal septic infection. Judy Mann, Illegal Abortion’s Deadly Price, 
Washington Post, Aug. 3, 1990, at C3.

65 For example, there has been a substantial increase in women’s labor 
force representation and a diminution in the wage gap between men and 
women. See Fuchs, supra note 45, at 36-37; Women’s Work, supra note 45, 
at 23-24.



34

and “cast[ ] into darkness the hopes and visions of every 
woman in this country who had come to believe that the 
Constitution guaranteed her the right to exercise some control 
over her unique ability to bear children.” Webster, 492 U.S. 
at 557 (Blackmun, J., concurring in part and dissenting in 
part).

II. THE “ UNDUE BURDEN” TEST ADOPTED BY 
THE COURT OF APPEALS IS VAGUE AND 
UNWORKABLE.

By stretching logic, precedent, and the bounds of its own 
authority, the court of appeals adopted the less protective 
“ undue burden” standard, which has never commanded a 
majority or even a plurality of this Court. By so doing, the 
court of appeals rejected Roe, Akron, and Thornburgh and 
turned “ a single opinion that lacks majority support into 
national law.” King v. Palmer, 950 F.2d 771, 782 (D.C. Cir. 
1991) (en banc) (finding inapplicable Marks v. United States, 
430 U.S. 188 (1977)). But see Coe v. Melahn, No. 90-1552 
(8th Cir. Mar. 2, 1992).

More important, the “ undue burden” test is seriously 
flawed. First, this Court has never applied the “ undue bur­
den” analysis to legislation targeting constitutionally pro­
tected interests.66 Unlike strict scrutiny, whose hallmarks are

66 Relying upon San Antonio Independent School Dist. v. Rodriguez, 
411 U.S. 1 (1973), Gibson v. Florida Legislative Investigation Comm., 372 
U.S. 539 (1963), and Bates v. City o f Little Rock, 361 U.S. 516 (1960), Jus­
tice O’Connor argues in Akron that the undue burden standard is not novel 
to constitutional law. 462 U.S. at 462 (O’Connor, J., dissenting). But none 
of these cases apply an “undue burden” analysis. In Rodriguez, Justice 
Powell focuses on whether the right to education is a fundamental right, not 
on whether that right had been substantially infringed. 411 U.S. at 34-37. 
Moreover, the Court makes clear that strict scrutiny is triggered in cases 
involving “ legislation which ‘deprived,’ ‘infringed,’ or ‘interfered’ with the 
free exercise of some such fundamental personal right or liberty.” Id. at 38 
(citations omitted). In Gibson, although Justice Goldberg occasionally dis­
cussed the “ substantial” infringement of the right of free association, the 
Court applied the “ strict scrutiny” standard and never examined the degree 
of interference necessary to trigger this exacting level of review. 372 U.S. at 
545-46. Similarly, in Bates, the Court held that “ where there is a significant 
encroachment upon personal liberty,” the state must demonstrate a compel-



35

known, and which effectively safeguards the right to choose 
abortion from governmental interference, see Section I.C. 
supra, the “undue burden” test is a novel concept.

Second, the “ undue burden” test provides wholly inade­
quate protection for women seeking abortions. Although 
some anti-choice commentators have suggested that the 
“undue burden” test is an acceptable middle ground between 
the strict scrutiny and rational basis tests, see James Bopp, 
Jr. and Richard E. Coleson, What Does Webster Mean?, 130 
U. Pa. L. Rev. 157 (1989), all available clues to its applica­
tion demonstrate that the test provides inadequate protection 
for the abortion right. Akron, 462 U.S. at 466-67, 470-74 
(O’Connor, J., dissenting) (upholding second trimester hospi­
talization, biased counseling, mandatory delay, and 
physician-only counseling requirements under “ undue bur­
den” test); Thornburgh, 476 U.S. at 827-33 (O’Connor, J., 
dissenting) (upholding biased counseling, reporting require­
ments, degree of care for post-viability abortions, and second 
physician requirement when fetus is possibly viable under 
“undue burden” test). See also Akron, 462 U.S. at 420 n.l.

Third, if this Court addresses the constitutionality of each 
state restriction in a piecemeal fashion—as Justice O’Connor 
did in Akron and Thornburgh—the test is inadequate for yet 
another reason. Roe mandates that courts ultimately assess

the degree of burden that the entire regime of abortion 
regulations places on a woman, . . . [examining] how a 
given regulation incrementally adds to the cumulative 
burden on the fundamental right. In contrast, the undue 
burden standard may allow a state to pile on ‘reasonable

ling purpose. 361 U.S. at 524. But the intent of this discussion was to charac­
terize the interference with petitioner’s rights as “ neither speculative nor 
remote.” Id. Indeed, in Bates as in Gibson, the Court pointed out that con­
stitutional freedoms are protected against “subtle” governmental interfer­
ence as well as direct restrictions. Id. at 523. See also Gibson, 312 U.S. at 
544. Moreover, the Court’s reliance upon NAACP v. Alabama ex rel. Patter­
son, 357 U.S. 449 (1958), makes clear that the traditional strict scrutiny stan­
dard was used to invalidate under the First Amendment the state-mandated 
disclosure of membership lists.



36

regulation’ after ‘reasonable regulation’ until a woman 
seeking an abortion first had to conquer a multi-faceted 
obstacle course.

Dellinger and Sperling, supra note 51, at 100 (emphasis in 
original). Cf. Murdock v. Pennsylvania, 319 U.S. 105, 115 
(1943) (“cumulative effect” of small license tax could crush 
religious practice when “exacted town by town”).

Fourth, the “undue burden” test is likely to result in arbi­
trary and discriminatory applications by the lower courts. In 
Akron and Thornburgh, Justice O’Connor reiterated that 
heightened judicial scrutiny is reserved for only those 
instances in which the state has imposed “ ‘absolute obstacles 
or severe limitations on the abortion decision,’ not whenever 
a state regulation ‘may “ inhibit” abortions to some 
degree.’ ” Thornburgh, 476 U.S. at 828 (O’Connor, J., dis­
senting) (quoting Akron, 462 U.S. at 464 (O’Connor, J., dis­
senting)) (emphasis added). A burden is not “ undue” unless 
the measure has the effect of “ ‘substantially limiting access 
to the means of effectuating th[e] decision’ ” to have an 
abortion. Akron, 462 U.S. at 463 (quoting Carey, 431 U.S. 
at 688 (emphasis in original)).67 Thus lower courts are 
required to make quantitative and subjective judgments of 
what constitutes a severe or substantial limitation in order to 
determine whether the state bears the burden of proving a 
compelling purpose for the law’s enactment.

Even the United States as amicus curiae has abandoned the 
“ undue burden” test as flawed. While its amicus curiae brief 
in Akron, 462 U.S. 416, urged this Court to adopt the 
“ undue burden” test, its briefs in both Webster, 492 U.S. 
490, and Hodgson, 110 S. Ct. 2926, rejected the standard, 
finding that the “ concept of an undue burden obviously is 
not self-defining.” See Brief For the United States As Ami­
cus Curiae Supporting Appellants at 22, Webster, supra (No. 
88-605). In Hodgson, the United States continued:

67 The court of appeals would also examine whether a particular regu­
lation would have a severe or drastic impact upon the time, cost, or number 
of legal providers of abortions. 33a.



37

Asking whether a particular measure unduly burdens the 
right provides no meaningful guidelines for assessing the 
weight of the competing interests, or for determining 
how much deference to give to legislative judgments. 
The only measure of constitutionality would be the 
courts’ own subjective assessment of what is “ due” or 
“ undue” in any particular context. In these circum­
stances, the undue burden analysis would offer “ no 
guide but the Court’s own discretion,” Baldwin v. Mis­
souri, 281 U.S. 586, 595 (1930) (Holmes, J., dissenting); 
see Webster, 109 S. Ct. 3066 n.* (Scalia, J., concurring 
in part and concurring in the judgment), and would 
serve only to mask judgments made on the basis of 
assumptions that would remain unarticulated. In our 
view, great caution should be exercised in resolving 
important constitutional controversies under the “ undue 
burden” mantle.

Brief For the United States As Amicus Curiae at 21, 
Hodgson, supra (Nos. 88-1125, 88-1309).

In the several years since this Court decided Webster, state 
legislators have proposed hundreds of restrictions on abor­
tion68 which, if enacted, would deter, and in many instances 
prevent, women from obtaining appropriate health care. 
Because it offers no guidance to lower courts, the “ undue 
burden” standard will require this Court to determine sepa­
rately whether each and every one of these numerous provi­
sions imposes an undue burden on a right of reproductive 
privacy and to analyze that question separately for different 
classes of women.69 * In that event, fears, expressed by some 
members of this Court, of encouraging unnecessary litigation 
and sitting as a super-legislature will be magnified tenfold.

68 See National Abortion Rights Action League, Who Decides? A 
State-by-State Review o f Abortion Rights, iii (3d ed. 1992); Abortion and 
Women’s Health at 39.

69 Restrictions that appear a mere affront or inconvenience to wealthy,
educated women acting with the support of their families may impose pro­
hibitive burdens on women with other life circumstances.



38

Finally, the “ undue burden” test will oblige the women 
already suffering from an act’s coercive influence to demon­
strate its onerous burdens through costly, time-consuming lit­
igation. Under Roe, once plaintiffs prove that a statute will 
create more than a de minimis impact upon a woman’s right 
to choose abortion, the burden shifts to the state to demon­
strate that the law furthers a compelling purpose. This alloca­
tion is fair, because the state enjoys substantial resources to 
make its case, resources that women facing unwanted preg­
nancies are less able to secure. Placing this extraordinary bur­
den upon women facing unwanted pregnancies will be 
particularly disadvantageous to low-income women, young 
women, rural women, and battered women, who also are the 
very citizens least able to defend their interests in the legisla­
tive arena.70

HI. THE RATIONAL BASIS TEST WILL PROVOKE 
AND SANCTION EXTREME GOVERNMENTAL 
INTERFERENCE WITH PRIVATE REPRODUCTIVE 
DECISIONS.

Unfettered deference to legislative action resulting from the 
adoption of a rational basis standard will sanction and 
encourage intolerable legislative interference with women’s 
reproductive choices. In Webster, a plurality of this Court 
abandoned Roe's trimester framework on the assumption 
that modem legislatures would be unlikely to pass legislation 
“ reminiscent of the dark ages.” 492 U.S. at 521. However, 
the state legislative experience during the last several years 
has belied any notion of legislative moderation.71

70 As commentators recently noted: “ [I]t is simply unfair, and unnec­
essary, to require that a woman actually sacrifice her constitutional liberty 
before she or anyone else can challenge a restriction on her freedom. The 
Court should not demand an unwanted child, or a woman maimed by an ille­
gal abortion, as proof that strict scrutiny is warranted.” Estrich & Sullivan, 
supra note 36, at 136 (emphasis in original).

71 For example, Utah passed a restrictive abortion law that would have 
subjected doctors to the death penalty for providing illegal abortion. See 
JaneL. v. Bangerter, No. 91-C-345-G (D. Utah Tiled Apr. 4, 1991). In 1990, 
Louisiana attempted to revive its pre-Roe law subjecting physicians



39

While courts must give appropriate deference to the legisla­
tive process in the economic arena, see Ferguson v. Skrupa, 
372 U.S. 726, 727-31 (1963), the framers of the Constitution 
never intended the political process to resolve questions of 
individual rights. As this Court has recognized:

The very purpose of a Bill of Rights was to withdraw 
certain subjects from the vicissitudes of political contro­
versy, to place them beyond the reach of majorities and 
officials and to establish them as legal principles to be 
applied by the courts. One’s right to life, liberty, and 
property, to free speech, a free press, freedom of wor­
ship and assembly, and other fundamental rights may 
not be submitted to vote; they depend on the outcome 
of no elections.

Barnette, 319 U.S. at 638.
Adoption of a rational basis test will also permit state leg­

islatures to impose numerous restrictions adversely affecting 
women’s lives and health and subjecting women of different 
states to differing standards. A woman’s right to choose 
abortion will vary solely because she does not live in or can­
not afford to travel to a state that is more respectful of her 
constitutional liberty. The result will be an irrational patch- 
work of state and local laws that “ would not conform to the 
American legal norm of equality.” Laurence H. Tribe, Abor­
tion: The Clash o f Absolutes 75 (1990); see also Brief Amici 
Curiae of Certain State Elected Officials; Brief Amici Curiae 
of the City of New York, et al.

to ten years at hard labor for performing an abortion. Weeks v. Connick, 
733 F. Supp. 1036 (E.D. La. 1990). In 1991, after that attempt failed, the 
Louisiana legislature passed a law banning abortions and contraceptive meth­
ods that operate after conception. 1991 La. Sess. Law Serv. 74 (West). In 
1990, the territory of Guam passed a law banning virtually all abortions, as 
well as counseling, encouraging, or advising a woman to obtain an abortion. 
Guam Society o f  Obstetricians & Gynecologists v. Ada, 766 F. Supp. 1422 
(D. Guam 1990), appeal pending, No. 90-16706 (9th Cir.). A bill just recently 
introduced in Rhode Island not only bans abortions except to prevent the 
immediate death of the pregnant woman, but also prohibits advertisements 
and referrals about abortion. No. 91-H5310, Rhode Island General Assem­
bly, January Sess. (1991).



40

Moreover, the rational basis test might sanction a wide 
variety of other incursions on the personal liberty of pregnant 
women. To further mere rational state interests, could gov­
ernment dictate the lifestyle or working conditions of preg­
nant women? Could government compel childbirth to further 
population expansion?72 Conversely, could it justify forced 
contraception, abortion, or sterilization to support its 
rational interests? See cases cited supra note 32. These intru­
sive deprivations of personal liberty and autonomy would 
conflict with this Court’s recognition that “ the full scope of 
the liberty guaranteed by the Due Process Clause . . . 
includes a freedom from all substantial arbitrary impositions 
and purposeless restraints . . . [and] that certain interests 
require particularly careful scrutiny of the state needs 
asserted to justify their abridgment.” Poe v. Ullman, 367 
U.S. 497, 543 (1961) (Harlan, J., dissenting).

IV. THE CHALLENGED PROVISIONS ARE INVALID 
UNDER ANY STANDARD OF REVIEW.
A. Mandatory Husband Notification Violates Rights of 

Privacy, Marital Integrity, and Equal Protection.
1. In violation of the right of privacy, the Act’s 

husband notification restriction increases the like­
lihood of violence against women and fails to 
further any legitimate state interest.

Both the district court and the court of appeals correctly 
invalidated § 3209’s requirement that every married woman 
first notify her husband that she is about to undergo an abor­
tion. Ever since this Court established that a state may not 
empower a husband to veto a woman’s abortion choice, Dan-

12 For example, the pro-natalist policies of the former Ceausescu 
regime in Romania—including a ban on all forms of contraception and steril­
ization except in extremely limited circumstances, extra taxation for childless 
marriages, and monthly birth quotas for factory employees—might be con­
stitutional if rationally related to governmental interests. See Charlotte 
Hord, Henry P. David, France Donnay and Merril Wolf, Reproductive 
Health in Romania: Reversing the Ceausescu Legacy, 22 Stud, in Fam. Plan. 
231, 232 (1991).



41

forth, 428 U.S. at 67-72, no court has upheld as constitu­
tional a husband notification requirement.73

As this Court recognized, a notification statute may give 
the notified person a veto of the woman’s decision, by giving 
that person the opportunity to prevent the abortion or to 
penalize the woman severely for exercising her choice. See 
Hodgson, 110 S. Ct. at 2939, 2945 n.36; Bellotti v. Baird, 
443 U.S. 622, 647 (1979) (“Bellotti II"). The record in this 
case amply demonstrates the onerous burden the husband 
notification requirement would impose. As the court of 
appeals explained:

The district court found that § 3209’s notification 
requirement creates a substantial risk that women who 
would otherwise have an abortion will be prevented 
from having one. . . .  In those situations where a hus­
band is sufficiently opposed to abortion or sufficiently 
desirous of having a child that the wife will not volun­
tarily share the fact of her pregnancy and her intention 
to abort with him, the clinics’ experts testified that 
coerced notification will predictably result in an effort to 
prevent the abortion.

66a. Indeed, as the court of appeals observed, the district 
court found that the number of situations in which “ women 
may reasonably fear dire consequences from notifying their 
husbands is potentially limitless.” 70a; see also 257a n.42. 
“Even if the woman is not deterred from pursuing an abor­
tion, the same arsenal of physical, economic, and psychologi­
cal abuse is available to the notified husband to penalize the 
wife for exercising her constitutionally bestowed right.” 68a.

The limited exceptions to the husband notification require­
ment do not relieve women of these severe burdens. Like the 
“less than effectual” abuse and neglect exception to Minne-

73 See Planned Parenthood v. Board o f Medical Review, 598 F. Supp. 
625, 636 (D.R.I. 1984); Eubanks v. Brown, 604 F. Supp. 141, 148 (W.D. Ky. 
1984); Doe v. Deschamps, 461 F. Supp. 682, 686 (D. Mont. 1976); 
Scheinberg v. Smith, 482 F. Supp. 529 (S.D. Fla. 1979), aff'd in part, 
vacated in part, and remanded, 659 F.2d 476 (5th Cir. Unit B Oct. 1981), on 
remand, 550 F. Supp. 1112 (S.D. Fla. 1982).



42

sota’s two-parent notification statute, Hodgson, 110 S. Ct. at 
2950 (O’Connor, J., concurring); see also id. at 2932 n.7, 
2939 n.26, the Act’s exceptions for sexual assault and bodily 
injury will leave battered women vulnerable to a range of 
coercion and abuse. As the district court found and the court 
of appeals acknowledged, the pattern of random violence 
inflicted on them ensures that many “ battered spouses are 
psychologically incapacitated from making the assertion 
required by the statute even when there is ample objective 
basis for the required fear.” 68a-69a; see also 197a-198a, 
201a. Survivors of marital rape will also be unable to make 
the exception’s required report to law enforcement officials 
“ [gjiven the devastating effect that a report . . .  is likely to 
have on the marital relationship and the economic support 
provided the wife by the marriage.” 70a; see also 198a.

Moreover, like the inadequate abuse and neglect exception 
in Hodgson, the spousal sexual assault exception at issue here 
is, in reality, a means of notifying the husband. Hodgson, 
110 S. Ct. at 2950 (O’Connor, J., concurring); see also id. at 
2932 n.7. To avail herself of the exception, the woman must 
report the assault “ to a law enforcement agency having the 
requisite jurisdiction,” § 3209(b)(3), within 90 days. 18 Pa. 
Cons. Stat. Ann. § 3128(c) (Supp. 1991). Her husband will be 
notified of her action once an investigation begins or criminal 
charges are filed. Further, once the woman reports the mari­
tal rape to the police, the information becomes part of the 
public record and is therefore no longer confidential. See 
Scheetz v. The Morning Call, Inc., 946 F.2d 202, 207 (3d 
Cir. 1991). The “combination of the abused [woman’s] reluc­
tance to report sexual or physical abuse, . . . with the likeli­
hood that invoking the . . . exception for the purpose of 
avoiding notice will result in notice, makes the . . . exception 
less than effectual.” Hodgson, 110 S. Ct. at 2950 (O’Connor, 
J., concurring).

In addition, even though “physical violence is not the only 
burden reasonably predictable,” the harsh exceptions apply 
only to acts of physical violence against the married woman. 
69a. As the district court found, the exceptions would not 
apply where a husband would if notified,



43

threaten to (1) [sic] publicize her intent to have an abor­
tion to family, friends or acquaintances; (b) retaliate 
against her in future child custody or divorce proceed­
ings; (c) inflict psychological intimidation or emotional 
harm upon her, her children or other persons; (d) inflict 
bodily harm on other persons such as children, family 
members or other loved ones; or (e) use his control over 
finances to deprive [her] of necessary monies for herself 
or her children.

194a. A woman protected by a restraining order under the 
Protection From Abuse Act, 23 Pa. Cons. Stat. Ann. § 6101 
et seq. (Supp. 1991), also may be unprotected by the excep­
tion. 195a; 199a.74

Moreover, this burdensome provision serves no legitimate 
state interest whatsoever.75 The district court found that in 
the absence of a forced notification provision, “ [t]he vast 
majority of women consult their husbands prior to deciding 
to terminate their pregnane[ies].” 193a. As this Court recog­
nized in Hodgson, 110 S. Ct. at 2945, “ [a] statute requiring 
. . . notification would not further any state interest in those 
instances.” Where women choose not to notify their hus­
bands, the state interests, to the extent they are legitimate at 
all, would actually be disserved by forced notification. As the 
district court found,

The record clearly establishes that instead of fostering 
marital communication and bolstering the state’s interest 
in marital integrity, the exact opposite effect would 
likely occur. . . . Not only could forced notice hasten

74 The exception for a woman unable to locate her husband through 
“diligent effort” is also of doubtful utility. The district court found that, 
because the Act does not define ‘‘diligent effort,” the threat of civil and 
criminal penalties will compel abortion providers to construe the term in a 
narrow fashion, imposing another layer of delay before the woman may 
obtain an abortion. 194a.

75 The statute itself enumerates the interests that it purports to further: 
“the Commonwealth’s interest in promoting the integrity of the marital rela­
tionship,” and “ a spouse’s interest in having children within marriage and 
protecting the prenatal life of that spouse’s child.” § 3209(a).



44

the dissolution of a troubled marriage, but it could have 
potentially disastrous consequences, including subjecting 
the woman to physical abuse.

262a (citations omitted). See also 201a; Planned Parenthood 
v. Board o f Medical Review, 598 F. Supp. at 640-41.76

Nor can the Commonwealth’s purported interest in protect­
ing the husband’s “ interests in having children within mar­
riage and in protecting the prenatal life of [his] child,” 
§ 3209(a), justify the violation of the woman’s right of pri­
vacy. Although both men and women have a constitutionally 
protected interest against state interference in their ability to 
procreate, see Skinner, 316 U.S. at 541, and in their chil­
dren’s welfare, see, e.g., Michael H. v. Gerald D ., 491 U.S. 
110, 123 (1989), neither interest is served by the husband 
notification requirement. Instead, the statute protects only 
the husband’s “ interest” in compelling his wife to bear chil­
dren for him. That decision, however, must remain with the 
pregnant woman, “ who physically bears the child and who is 
the more directly and immediately affected by the preg­
nancy.” Danforth, 428 U.S. at 71.

2. The Act’s husband notification provision unconsti­
tutionally interferes with the protected marital rela­
tionship.

This Court has held that the marital relationship is pro­
tected by “ a right of privacy older than the Bill of Rights” 
for marriage is regarded as “ intimate to the degree of being 
sacred.” Griswold, 381 U.S. at 486. It “ ‘has long recog­
nized that freedom of personal choice in matters of marriage 
and family life is one of the liberties protected by the Due 
Process Clause of the Fourteenth Amendment.’ ” Moore v. 
City o f East Cleveland, 431 U.S. 494, 499 (1977) (plurality 
opinion) (quoting La Fleur, 414 U.S. at 639-40); see 
Zablocki, 434 U.S. at 383-85 (1978); Prince v. Massachusetts,

76 Dr. Walker testified that forced notification would not guarantee 
discussion among spouses or improve communications in dysfunctional rela­
tionships. J.A. 229. Rather than improving marital integrity in any way, 
forced notification “will make family communication much more difficult 
and much more dangerous in [battering] relationships.” J.A. 233.



45

321 U.S. 158, 166 (1944). As Justice Stevens reiterated in 
Hodgson:

While the State has a legitimate interest in the creation 
and dissolution of the marriage contract . . .  the family 
has a privacy interest in . . . the intimacies of the mari­
tal relationship which is protected by the Constitution 
against undue state interference . . . .  Far more than 
contraceptives, at issue in Poe and Griswold v. Connect­
icut, 381 U.S. 479 (1965), the married couple has a well- 
recognized interest in protecting the sanctity of their 
communications from undue interference by the State.

110 S. Ct at 2943, 2944 n.33.
In addition, this Court has “emphasized that the First 

Amendment protects . . . family relationships, that presup­
pose ‘deep attachments and commitments to the necessarily 
few other individuals with whom one shares not only a spe­
cial community of thoughts, experiences, and beliefs but also 
distinctively personal aspects of one’s life.’ ” Board o f Direc­
tors o f Rotary In t’l v. Rotary Club, 481 U.S. 537, 545 (1987) 
(quoting Roberts v. United States Jaycees, 468 U.S. 609, 619- 
20 (1984)). See Employment Division, Dep’t o f Human 
Resources v. Smith, 110 S. Ct. 1595, 1601 (1990); City o f 
Dallas v. Stanglin, 490 U.S. 19, 24 (1989); New York State 
Club A ss’n v. City o f New York, 487 U.S. 1, 18 (1988) 
(O’Connor, J., concurring).

In the guise of “protecting marital integrity,” § 3209 flies 
in the face of these principles, subjecting marital discussions 
to state surveillance, censorship, and control. For couples 
whose relationships do not include discussion of plans regard­
ing childbearing, the state now requires a dialogue which 
could profoundly alter their most intimate affairs. Even for 
those who already discuss reproductive choices, an allegation 
that the wife falsely certified notification would subject the 
timing, substance, and content of private colloquies to the 
scrutiny of law enforcement officials who are charged with 
determining whether the certification is true or whether the 
couple’s discussions are sufficient to meet the vague and 
undefined level of notification mandated by the Act. This



46

prospect is every bit as intrusive as Connecticut’s birth con­
trol statute, which “ allow[ed] the State to enquire into, prove 
and punish married people for the private use of their marital 
intimacy.” Poe v. Ullman, 367 U.S. at 548 (Harlan, J., dis­
senting). See Griswold, 381 U.S. at 485-86.

In Hodgson, this Court observed that while ‘‘full commun­
ication among all members of a family” may be desirable,

such communication may not be decreed by the State. 
The State has no more interest in requiring all family 
members to talk with one another than it has in requir­
ing certain of them to live together . . . .  [A] state 
interest in . . . making the ‘‘private realm of family 
life” conform to some state-designed ideal, is not a 
legitimate state interest at all.

Hodgson, 110 S. Ct. at 2946 (citations omitted). Cf. Gilbert 
v. Minnesota, 254 U.S 325, 335-36 (1920) (Brandeis, J., dis­
senting).77

3. Section 3209 denies women equal protection of the 
laws.

Although the interests § 3209 purports to advance are 
framed in gender-neutral terms, the provision imposes duties 
on women alone, and confers rights solely on men. The dis­
trict court found that “ [m]any medical and surgical proce­
dures, including . . . sterilization, prostate operations and 
chemotherapy, affect the capacity of males to have children

77 The court of appeals recognized that § 3209 also violates women’s 
rights to informational privacy by forcing them to disclose intimate details of 
their lives without a guarantee of confidentiality. 67a-68a. See Whalen v. 
Roe, 429 U.S. 589, 599-605 (1977); Nixon v. Administrator o f General 
Servs., 433 U.S. 425, 457-59 (1977); United States v. Westinghouse Electric 
Corp., 638 F.2d 570, 577 (3d Cir. 1980). Once disclosure of the abortion 
decision is made, the husband remains free to broadcast this private and inti­
mate information to others. As the court of appeals observed: “When the 
state forces spousal notification on a wife in a seriously troubled marriage, or 
even a wife in an untroubled marriage with a husband unalterably opposed to 
abortion, it compels disclosure of very intimate information with no assur­
ance of confidentiality to someone highly motivated to make a public disclo­
sure.” 67a.



47

within marriage.” 199a. Nevertheless, neither this Act nor 
any other Pennsylvania law requires that a married man 
notify his wife before undergoing a medical procedure that 
would affect her “interest in having children within mar­
riage.” Married men are free to exercise reproductive choices 
without interference by, or knowledge of, their wives.

The pattern of sex-differentiated roles in marriage implicit 
in § 3209 is an old one, not unlike the discredited proposition 
that the husband is the “head and master” of the marital 
unit;78 government enforcement of this pattern violates the 
commands of the Equal Protection Clause. This Court has 
made clear that, at the very least, a state cannot constitution­
ally classify on the basis of gender without demonstrating an 
“exceedingly persuasive justification” for the classification. 
Mississippi University for Women v. Hogan, 458 U.S. 718, 
724 (1982) (quoting Kirchberg, 450 U.S. at 461); see also 
Craig v. Boren, 429 U.S. 190, 204 (1976). Here, where the 
offending statute also heavily intrudes on basic interests in 
autonomy, bodily integrity, and health, this Court must 
undertake the most exacting review of the statutory objectives 
to determine whether the Commonwealth has a compelling 
justification for the gender-based discrimination. See 
Zablocki, 434 U.S. 374 (1978) (applying strict scrutiny under 
Equal Protection Clause to law forbidding marriage); Skin­
ner, 316 U.S. 535 (1942) (applying strict scrutiny under Equal 
Protection Clause to compulsory sterilization law); cf. Eisen- 
stadt, 405 U.S. 452 (1972) (invalidating prohibition on con­
traception under Equal Protection Clause).79

78 See Kirchberg v. Feenstra, 450 U.S. 455 (1981) (striking down Loui­
siana statute making husband “ head and master” of community property 
upon marriage). At common law, under the doctrine of coverture, a hus­
band had rights to control his wife’s person as well as her property. See Tin­
ker v. Colwell, 193 U.S. 473, 481 (1904) (“ husband has certain personal and 
exclusive rights with regard to the person of his wife which are interfered 
with and invaded by criminal conversation with her . . . [and] the wife is in 
law incapable of giving any consent to affect the husband’s rights” ).

79 Indeed, in Thornburgh this Court emphasized that restrictions on 
abortion also implicate women’s equality. The promise of individual liberty



48

Section 3209 must fall by application of these principles. 
As outlined above, the trial court found and the court of 
appeals confirmed that § 3209 is a “ totally irrational vehicle” 
with which to further marital integrity. 72a, 262a. The Con­
stitution prohibits the state from relying on out-dated gender- 
based stereotypes that perpetuate women’s image as the 
“weaker sex” or “child rearers.” Califano v. Webster, 430 
U.S. 313, 317 (1977); see also Orr v. Orr, 440 U.S. 268, 279 
(1979). The Commonwealth’s attempt to further asymmetri­
cally the husband’s “ interest in having children within mar­
riage,” embodies precisely the prohibited stereotype that 
wives should bear children. To the extent that the statute may 
be based on an assumption that women, unlike men, need 
spousal guidance in their reproductive choices, it transgresses 
Justice O’Connor’s admonition that “ if the statutory objec­
tive is to exclude or ‘protect’ . . . one gender because they 
are presumed to suffer from an inherent handicap or to be 
innately inferior, the objective itself is illegitimate.” Hogan, 
458 U.S. at 725.

B. The Act’s Mandatory Delay Will Jeopardize 
Women’s Health and Furthers No Legitimate 
State Interest.

In Akron this Court held that no
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 [is] . . . the State’s legitimate concern that 
the woman’s decision be informed . . . reasonably 
served by requiring a 24-hour delay as a matter of 
course.

Akron, 462 U.S. at 450. Consistent with this holding, the dis­
trict court confirmed the onerous burdens imposed by the 
Act’s mandatory delay. In particular, the district court found 
that:

“extends to women as well as to men . . . .  A woman’s right to make that 
choice freely is fundamental. Any other result, in our view, would protect 
inadequately a central part o f  the sphere o f liberty that our law guarantees 
equally to all.” 476 U.S. at 772 (emphasis added).



49

(a) The 24-hour waiting period will force every woman seek­
ing an abortion to make two separate trips to the physi­
cian.

(b) Because of scheduling complications, the waiting period 
will “ result in delays far in excess of 24 hours” ; for most 
women, the delay will range from forty-eight hours to 
two weeks.

(c) For many women, the 24-hour delay will significantly 
increase the cost of obtaining an abortion, including the 
costs of transportation, overnight lodging, and lost 
wages.

(d) The requirement of two visits to the provider will subject 
“many women to the harassment and hostility of anti­
abortion protestors . . . .”

(e) The mandatory delay will be especially burdensome for 
low-income women, young women, women from rural 
areas, and women—such as battered women—who may 
have difficulty explaining their whereabouts.

(0 A delay of 24 hours or more will adversely affect the 
physical and psychological health of some patients, and 
will increase medical complications.

(g) Where the delay pushes a patient into her second trimes­
ter of pregnancy, there will be a substantial increase in 
the costs of the abortion. Moving the procedure from the 
early to the middle stages of the second trimester would 
result in an increased medical risk, including a substantial 
increase in the risk of death.

171a-174a. In addition, the district court confirmed the lack 
of any legitimate state interest served by this provision. 174a. 
Thus, the mandatory delay is unconstitutional under even the 
least protective standard of review.

The court of appeals did not dispute any of the lower 
court’s factual findings. Indeed it acknowledged both the 
“ adverse consequences” of the mandatory delay, 52a-53a, 
and the Act’s failure to “ serve any purpose” for women who



50

have already decided to have an abortion. 55a.80 Nonetheless, 
the appeals court concluded that the mandatory delay created 
no “ undue burden” on the right to abortion, because this 
Court in Hodgson upheld a parental notification provision 
which caused delays of a week or more. See 53a (quoting 
Hodgson v. Minnesota, 648 F. Supp. 756, 853 (D. Minn. 
1986)).

The flaws in this reasoning are apparent. First, the court of 
appeals substituted for the record actually developed here a 
factual finding implicitly adopted in a different case involving 
completely distinct issues. If undisputed factual findings may 
be discarded so cavalierly, then the “ undue burden” test is 
truly meaningless. Second, and equally important, in 
Hodgson the state’s legitimate interest in allowing parents an 
opportunity to consult with the young woman was served by 
the delay. This same interest is not present here. Indeed, in 
Hodgson, Justice O’Connor joined Justice Stevens in 
expressly distinguishing Akron on the ground that no similar 
interest was served by imposing a 24-hour delay on an adult 
woman. See Hodgson, 110 S. Ct. at 2944-45 n.35.81

C. The Act’s Biased Counseling Restrictions Violate the 
Right of Privacy and the First Amendment.

1. Biased patient counseling interferes with the provi­
sion of quality medical care and serves no legiti­
mate state interest.

A state may require that a woman give her voluntary and 
informed consent to the abortion procedure. Danforth, 428

80 “ If a physician has concluded that any other type of obstetrical or 
gynecological procedure is medically necessary and has obtained the 
informed consent of the patient, there is simply no medical reason to delay 
performance of the procedure any longer.” 174a.

81 The court of appeals suggested that the mandatory delay served an 
interest in ensuring that the woman’s decision is “ well-considered.” 54a. 
This too, however, is refuted by the undisputed findings of the district court 
and by this Court in Akron, 462 U.S. at 450-51. Only “ [a] very small per­
centage of women are ambivalent concerning whether to have an abortion 
when they come to a clinic. Arrangements for special counseling sessions are 
made for women demonstrating any ambivalence about her decision.” 171a.



51

U.S. at 67. But precisely because the validity of an informed 
consent requirement rests on the state’s interest in protecting 
the health of the pregnant woman, the state may not, under 
the guise of “ informed consent,” attempt to intimidate 
women into continuing their pregnancies by forcing physi­
cians to deliver irrelevant, inaccurate, misleading, or inflam­
matory information. This is true under any standard of 
review. Thornburgh, 476 U.S. at 759-64. This Court has 
twice invalidated biased patient counseling requirements vir­
tually identical to those at issue here. Thornburgh, 476 U.S. 
at 759-64; Akron, 462 U.S. at 442-45. As this Court recently 
found:

Critical to our decisions in Akron and Thornburgfh] to 
invalidate a government intrusion into the patient/ 
doctor dialogue was the fact that the laws in both cases 
required all doctors within their respective jurisdictions 
to provide all pregnant patients contemplating an abor­
tion a litany of information, regardless of whether the 
patient sought the information or whether the doctor 
thought the information necessary to the patient’s deci­
sion.

Rust v. Sullivan, 111 S. Ct. 1759, 1777 (1991) (emphasis in 
original). Nothing in this record would compel a different 
result.

As the district court found, the Act’s biased counseling 
provisions “ represent a substantial departure from the ordi­
nary medical requirements of informed consent.” 170a. 
Because it requires “ the supply of specific information to all 
patients regardless of their specific circumstances, the Act is 
contrary to the standard medical practice that informed con­
sent be specifically tailored to the needs o f the specific 
patient.” 177a (emphasis added). Far from promoting 
informed consent, the Act will undermine this dialogue 
because it “ may actively discourage the free flow of informa­
tion . . .  by relieving any physician ‘who complies with the 
provisions’ of section 3205 from civil liability for failure to 
obtain informed consent.” 177a.



52

For many women, some of the specific information man­
dated by the Act will be irrelevant, misleading, inaccurate, or 
inflammatory. For example, the Act requires a disclosure of 
medical risks of carrying a pregnancy to term. If a woman 
needs an abortion because she is carrying an anencephalic 
fetus, no legitimate purpose is served by detailing her risk of 
death from preeclampsia or informing her that she may 
require a cesarean section at the time of delivery. 178a. Simi­
larly, “ [i]nforming women of the availability of medical 
assistance benefits or paternal support for the child has no 
legitimate medical justification. The information may mislead 
or confuse the patient, and, in the vast majority of the cases, 
is plainly inappropriate given the circumstances of the indi­
vidual patient.” 179a.82

Similarly, requiring physicians to offer to their patients 
state-prepared materials describing the fetus and listing agen­
cies that provide alternatives to abortion is simply ‘‘an 
attempt by the Commonwealth to alter a woman’s decision 
after she has determined that an abortion is in her best inter­
est.” 179a. This mandated information ‘‘will create the 
impression in women that the Commonwealth disapproves of 
the woman’s decision,” and “will create undesirable and 
unnecessary anxiety, anguish and fear.” 178a-179a.

In short, “ [ujnder the guise of informed consent, the Act 
requires the dissemination of information that is not relevant 
to such consent, and thus, it advances no legitimate state 
interest.” Thornburgh, 476 U.S. at 763 (emphasis added). 
The provisions are therefore unconstitutional under any stan­
dard of review.

82 “Advising a patient of the general availability of such benefits or 
payments may cause a woman to rely upon those statements and elect against 
an abortion only to discover that the benefits or payments were unavailable 
or insufficient.” 179a-180a. For example, in 1988 only one-quarter of child 
support payments orders issued by Pennsylvania state courts were actually 
enforced. Children’s Defense Fund, The State o f  America’s Children 1991 
152 (1991). Moreover, child support payments may be wholly insufficient to 
allow any meaningful economic support for a woman to raise a child. Ms. 
Dillon’s case exemplifies this problem. After waiting 18 months to obtain a 
child support order, the order was only $125 per week, clearly insufficient to 
provide for her four children. J.A. 386.



53

Moreover, the Act’s requirement that only physicians 
deliver certain portions of the state-mandated information 
will increase the costs of the procedure, require extensive 
changes in the operating schedules of physicians and clinics, 
and ultimately reduce the availability of abortion services. 
175a-176a. Yet, the district court found that non-physician 
counselors by virtue of their training and experience, are fully 
capable of providing information, discussing the alternatives 
to abortion, and securing the patient’s informed consent. 
175a. Indeed, “ [i]n many instances, trained counselors . . . 
are more understanding than physicians and have more time 
to spend with patients.” 175a. Thus, the “ state’s interest in 
ensuring that a woman’s consent to an abortion procedure is 
informed and unpressured is in no way furthered by mandat­
ing the identity of the person that must obtain the informed 
consent.” 176a (emphasis added). As this Court has held, the 
“critical factor is whether [the woman] obtains the necessary 
information and counseling from a qualified person, not the 
identity of the person from whom she obtains it.” Akron , 
462 U.S. at 448. See also Ohio v. Akron Center for Repro­
ductive Health, 110 S. Ct. 2972, 2983 (1990).

2. In violation of the First Amendment, the biased 
counseling provisions force the physician to com­
municate the state’s ideology.

The First Amendment’s guarantee “ includes both the right 
to speak freely and the right to refrain from speaking at all” ; 
it protects “ the right of individuals . . .  to refuse to foster 
. . . an idea they find morally objectionable.” Wooley, 430 
U.S. at 714, 715 (citations omitted).83 Even when a speaker is 
free to disavow the government’s message, it is a violation of

83 See Barnette, 319 U.S. at 642 (no official may “ prescribe what shall 
be orthodox” in matters of opinion or “ force citizens to confess by word or 
act their faith therein”); see also Lehnert v. Ferris Faculty Ass’n, 111 S. Ct. 
1950, 1957 (1991); id. at 1960 (opinion of Blackmun, J.); id. at 1970 (Mar­
shall, J., concurring in part and dissenting in part); id. at 1978 (Scalia, J., 
concurring in part and dissenting in part); Riley v. National Fed’n o f the 
Blind, 487 U.S. 781, 796-97 (1988); Pacific Gas & Elec. Co. v. Public Utili­
ties Comm’n, 475 U.S. 1, 10-11 (1986) (plurality opinion).



54

the First Amendment to “ require speakers to affirm in one 
breath that which they deny in the next.” Pacific Gas & Elec. 
Co., 475 U.S. at 16. When the government compels an indi­
vidual to be an instrument for the dissemination of “ an ideo­
logical point of view he finds unacceptable,” 84 Wooley, 430 
U.S. at 715, the government imposes “a content-based regu­
lation of speech.” Riley, 487 U.S. at 795. Thus the statute 
“ is subject to exacting First Amendment scrutiny” and may 
survive only if it is “ narrowly tailored” to promote a com­
pelling governmental interest. Id. at 798.85

Section 3205 cannot survive this test. Under duress of law, 
physicians and counselors must recite a litany of government- 
mandated information, as well as offer information prepared 
and provided by the Commonwealth. These requirements 
“will undermine the physician’s or counselor’s ability to 
counsel a patient according to her individual needs, and will 
force the physician or counselor to act in a manner inconsis­
tent with their [sic] professional judgment.” 179a. Thus, no 
less than the plaintiffs in Wooley and Riley and the appel­
lants in Pacific Gas & Elec. Co., the Pennsylvania physicians 
find themselves forced to convey the state’s message at the 
cost of violating their own conscientious beliefs and profes­
sional commitments.86

84 Justice O’Connor recognized that “ [e]ven the requirement that 
women . . .  be informed of the availability of those materials, and furnished 
with them on request, may create some possibility that the physician or coun­
selor is being required to ‘communicate [the State’sl ideology.’ ” Thorn­
burgh, 476 U.S. at 830 (citing with approval Akron, 462 U.S. at 472 n. 16, 
and Wooley, 430 U.S. 705).

85 This doctrine is not confined to speech with an ideological view­
point. Riley, 487 U.S. at 797-98. In Riley, this Court observed that compel­
ling statements of “ fact” regarding the percentage of charitable funds that 
went to overhead was no more permissible than compelling statements of 
“ opinion” : “ either form of compulsion burdens protected speech.” Id. In 
any case, the compelled speech at issue here clearly conveys an ideological 
message. Cf. Bigelow v. Virginia, 421 U.S. 809, 822 (1975).

86 These requirements also violate the First Amendment rights of the 
woman who must listen to the state’s litany in order to obtain an abortion. 
“ While [the government] clearly has a right to express [its] views to those



55

The Commonwealth’s asserted interest in assuring that the 
woman’s consent is informed and voluntary cannot validate 
these infringements. As discussed above, although a state 
may require that a woman “ give what is truly a voluntary 
and informed consent,” Thornburgh, 476 U.S. at 760, “ [i]t 
remains primarily the responsibility of the physician to ensure 
that appropriate information is conveyed to his patient, 
depending on her particular circumstances.” Akron, 462 U.S. 
at 443. See also Thornburgh, 476 U.S. at 762. The principles 
of Woo ley and Barnette, which establish the “ individual’s 
First Amendment right to avoid becoming the courier for [the 
government’s] message,” Wooley, 430 U.S. at 717, thus ren­
der unconstitutional the biased counseling provisions of 
§ 3205.

D. The Act’s “ Informed” Parental Consent Restriction 
Unduly Burdens the Right of Privacy and Forces 
Family Life to Conform to a State-Designed Ideal.

A state may promote parental involvement in a young 
woman’s abortion decision when necessary to protect its 
“ interest in the welfare of its young citizens, whose immatur­
ity, inexperience, and lack of judgment may sometimes 
impair their ability to exercise their rights wisely,” Hodgson, 
110 S. Ct. at 2942 (opinion of Stevens, J.), and to “ protect! ] 
a parent’s interest in shaping a child’s values and lifestyle 
. . . . " Id .  at 2946. However, in promoting parental involve­
ment, the state is limited by “ the constitutional protection 
against unjustified state intrusion . . . [which] extends to 
pregnant minors as well as adult women.” Hodgson, 110 
S. Ct. at 2937 (opinion of Stevens, J.). Consequently, the 
state may not “ ‘unduly burden’ the fundamental right” to 
abortion. Id. at 2949 (O’Connor, J., concurring) (quoting 
Akron, 462 U.S. at 453).87

who wish to listen, [it] has no right to force its message upon an audience 
incapable of declining to receive it.” Lehman v. City o f Shaker Heights, 
418 U.S. 298, 307 (1974) (Douglas, J., concurring).

87 In contrast to the strict scrutiny standard for adult women, the dis­
trict court correctly recognized that the “ undue burden” standard was 
appropriate to judge restrictions affecting young women. 248a.



56

Pennsylvania’s “informed” parental consent statute goes 
far beyond the parental notification and consent statutes at 
issue in Hodgson, 110 S. Ct. 2926 (1990), and Bellotti II, 443 
U.S. 622 (1979). As the district court held, “ informed con­
sent” is a term of art, and

personal contact between the patient and the person ren­
dering the informed consent is essential. The physician’s 
or counselor’s observation of the person’s demeanor and 
reactions . . .  is essential to permit the physician or 
counselor to determine whether the patient is competent 
to give informed consent and whether the patient fully 
understood the information . . . .

170a. Thus, consistent with the “ standard medical principles 
of informed consent,” the district court found that 
“ informed” parental consent under the Act will require in- 
person consultation with the parent. 182a-183a, 248a.

By mandating face-to-face counseling for parents, the Act 
undermines, rather than promotes, the state’s interests in pro­
tecting parental involvement and the well-being of young 
women. There can be no dispute that by increasing the delay, 
costs, and medical risks of abortion, the “ informed” paren­
tal consent requirement will harm young women. As the dis­
trict court found, the requirement of parental counseling 
could “ cause delays of several days or possibly weeks.” 183a; 
see also 182a. Coupled with other requirements of the Act, 
§ 3206 “ will create layers of obstacles which could unduly 
burden a minor woman’s ability to get an abortion . . . .  In 
some cases, the provisions may act in such a way as to 
deprive her of her right to have an abortion.” 186a; see also 
184a.88

The statute’s “ informed” parental consent requirement will 
have a particularly irrational and perverse impact on the par­

88 Unlike the regulation of any other medical procedure, the Act 
requires a physician performing an abortion to evaluate the competency and 
obtain the informed consent of two separate individuals, with the irrational 
but inevitable result that if the parent is not competent to give informed con­
sent, the physician cannot perform the abortion, even though a parent has 
been notified and is involved, and the young woman is fully capable of giving 
her own informed consent.



57

ents of pregnant young women. As the district court found, 
even when prepared to consent, some parents will be unable 
to come to the clinic for several days because of work sched­
ules or family obligations, or because they cannot afford the 
additional cost of travel, lost wages, and child care expenses. 
185a-186a. The requirement presents so insurmountable an 
obstacle that even parents who have participated in, support, 
and consent to their daughter’s abortion, may be unable to 
comply with the law. 185a. See also Planned Parenthood 
Ass’n v. Harris, 670 F. Supp. 971, 987-88 (N.D. Ga. 1987).

Where the parents choose to “ shap[e] [their] child’s values 
and lifestyle,” Hodgson, 110 S. Ct. at 2946, by permitting 
her to exercise independent judgment, the Pennsylvania stat­
ute perversely forces the parents to act contrary to their own 
beliefs, “ slic[ing] deeply into the family itself.” Hodgson, 
110 S. Ct. at 2946 (quoting Moore, 431 U.S. at 498). As the 
district court explained, “ The parent may be reluctant to 
explain his or her absence from work, or may not wish to be 
seen entering an abortion clinic.” 249a. In some cases, “ a 
parent may refuse to accompany their daughter to the facility 
even though he or she has agreed to consent to the daughter’s 
abortion.” 185a. Thus, rather than protect parental rights, 
the statute merely “ substitutes] its conception of family life 
for the family’s own view.” Hodgson, 110 S. Ct. at 2946. 
Such an asserted “ state interest in standardizing its children 
and adults, making the ‘private realm of family life’ conform 
to some state-designed ideal, is not a legitimate state interest 
at all." Id. (emphasis added).

E. The Act’s Public Disclosure and Reporting Require­
ments Burden Women’s Right of Privacy and Fail to 
Further Legitimate State Interests.

The Act’s reporting and disclosure requirements also bur­
den the right to abortion without serving any legitimate state 
interest. First, §§ 3207(b) and 3214(0 require every facility 
that performs abortions to file with the Commonwealth quar­
terly reports of the total number of abortions performed. The 
reports of facilities that received state funds within the year 
prior to filing are available to the public for inspection and 
copying.



58

As the district court found, most abortion providers have 
suffered a wave of extreme anti-abortion violence and harass­
ment. 211a-213a. The public’s access to the quarterly reports 
gives the clinics reasonable basis to fear that this harassment 
and violence will increase, 213a, and will cause some pro­
viders to forego state funds for both abortion and other 
health services. “ The likely result will be that indigent 
patients who have been the victims of rape or incest or who 
suffer from a life-threatening condition will find it difficult, 
if not impossible . . .  to obtain abortion services.” 213a- 
214a. Moreover, for physicians who now perform abortions 
only several times a year, public disclosure and its attendant 
threat of harassment is enough to deter the performance of 
abortion altogether.89

Recognizing that the disclosure provisions further no legiti­
mate or compelling interests in health, the only interest 
asserted by the Commonwealth to support the requirement is 
the public’s right to know how its funds are spent. 83a. The 
reports do not, however, accomplish this objective because 
they include no information about the nature or amount of 
state funds that trigger public disclosure under the Act.90 
Rather, the requirements merely enhance the ability of abor­
tion opponents to intimidate abortion providers. The provi­
sion must therefore be invalidated. Thornburgh, 476 U.S. at 
765-66.91

89 The harassment of physicians is expected to increase in light of the 
recent strategic announcement by the anti-choice organization Operation 
Rescue that it plans to drive doctors who perform abortions out of business. 
Mimi Hall, Abortion Foes Target Doctors, USA Today, Feb. 5, 1992, at 3A 
(quoting Randall Terry) (“ We’re going to shame [doctors], humiliate them, 
embarrass them, disgrace them and expose them until they quit” ). 
See also Christine Spokar, Abortion Foes’ Mood Defiant, Washington Post, 
Jan. 21, 1992, at Bl.

90 Records of state appropriations and expenditures are maintained 
and generally available, however, under Pennsylvania’s Right-to-Know Law, 
65 Pa. Cons. Stat. Ann. §§ 66.1-66.4 (Supp. 1991). See 210a.

91 By coercing providers into public disclosure as a condition of receiv­
ing state aid, the Act also improperly conditions the receipt of a public bene­



59

In addition to placing an impermissible burden on the right 
to abortion, the district court also found that the requirement 
that abortion providers report the name of the referring phy­
sician “ serves no legitimate scientific purpose.” 219a. It 
“ does not add to the pool of scientific knowledge concerning 
abortion. Nor is it reasonably related to the Commonwealth’s 
interest in promoting maternal health.” 272a.92 Consequently, 
the provision is invalid.

Even though these reports are to be confidentially main­
tained, referring physicians “ are extremely protective of their 
anonymity because of fears (often based upon past experi­
ence) that any kind of documentation or record-keeping con­
necting them with any phase of the abortion decision will 
have adverse effects on their medical practices and patients or 
their ability to reside peacefully in their communities.” 
219a.93 By reducing the number of physicians willing to make 
referrals for abortion, the Act’s reporting requirement uncon­
stitutionally burdens the right to abortion. 272a.94

fit on the surrender of a constitutionally protected right. This Court has 
explicitly applied the unconstitutional conditions doctrine to the right to 
choose abortion. See Planned Parenthood v. Arizona, 718 F.2d 938 (9th Cir. 
1983), appeal after remand, 789 F.2d 1348 (9th Cir.), aff’d mem. sub nom. 
Babbitt v. Planned Parenthood, 479 U.S. 925 (1986) (state funds may not be 
conditioned on an organization’s relinquishment of privately funded 
abortion-related activities). See also Harris v. McRae, 448 U.S. 297, 317 n.19 
(1980).

92 As the district court pointed out, although the referring physician 
may provide some of the state-mandated information, the abortion provider 
must review the information with the patient, “regardless of what the refer­
ring physician may or may not have done . . . .  Therefore, the performing 
physician or abortion facility will have all information the Commonwealth 
might seek . . .  at their disposal.” 272a-273a.

93 The district court found specific instances where doctors would stop 
referring patients for abortions if their names were reported as required by 
the Act. 220a, 221a.

94 Similarly, the district court found that the Act’s requirement that 
physicians report the basis for their medical judgments concerning viability,



60

F. This Court Must Enjoin Enforcement of the Act’s 
Medical Emergency Exception to the Extent that 
Compliance Would Pose a Threat to the Life or 
Health of Women or Must Find the Provision 
Unconstitutional.

Section 3203 provides an exception to several of the Act’s 
provisions in the case of a “ medical emergency.” As the dis­
trict court found, “ [wjithout question, the definition of med­
ical emergency is more restrictive than any other as applied in 
medical situations.” 235a-236a. The Act’s definition is “con­
trary to generally accepted standards of emergency medical 
care, and interferes with a physician’s ability to act in accord­
ance with his best medical judgment.” 157a.95 * As a result, 
compliance with the Act could “ultimately jeopardize the 
health of the pregnant woman.” 162a.

The court of appeals agreed that it was bound by this 
Court’s holding in Thornburgh, 476 U.S. at 770-71, that 
“any abortion regulation which might delay or prevent an 
abortion must contain a medical emergency exception,” 36a, 
and that a valid medical emergency exception would necessar­
ily include the conditions of inevitable abortion, premature 
ruptured membrane, and preeclampsia. 37a. Nevertheless, to 
assure that compliance with Pennsylvania law would “ not in 
any way pose a significant threat to the life or health of a 
woman,” the court of appeals construed the Act to include 
these conditions within its narrow definition. 40a.

The court of appeals correctly intended to remove the con­
stitutional infirmity in § 3203. Its effort to do so, however, 
failed for two reasons. First, the court of appeals’ holding 
that the medical emergency definition need only protect

the existence of a medical emergency, and the determination of gestational 
age would “ serve no useful scientific purpose,” and would interfere with the 
physician’s exercise of medical judgment. 222a, 274a (citation omitted).

95 The district court found that the Act’s definition of medical emer­
gency “ departs from the normal medical definition of an emergency and is 
inconsistent with that contained in Pennsylvania’s Emergency Medical Ser­
vices Act.” 155a. “ No other law infringes so heavily on a physician’s discre­
tion to decide when he or she is faced with a medical emergency as the 
provisions of the Act.” 156a.



61

women from “ significant” threats to their life or health, is 
inconsistent with this Court’s holding in Thornburgh. It 
unfortunately fails to ensure that a woman’s health remains 
the physician’s paramount consideration. Thornburgh, 476 
U.S. at 768-69.96

Second, the interpretation runs afoul of the principle that a 
federal court may not “ rewrite a state law to conform it to 
constitutional requirements.” Virginia v. American Booksel­
lers Ass’n, Inc., 484 U.S. 383, 397 (1988). A federal court’s 
interpretation of state legislation is “not binding on state 
courts and may be discredited at any time—thus essentially 
rendering the federal-court decision advisory and the litiga­
tion underlying it meaningless.” Moore v. Sims, 442 U.S. 
415, 428 (1979). See also Lakewood v. Plain Dealer Publish­
ing Co., 486 U.S. 750, 770 (1988) (federal courts “ will not 
write nonbinding limits into a silent state statute”).97 There­
fore, physicians cannot rely on the court of appeals’ narrow­
ing construction to insulate them from criminal prosecution, 
and must sacrifice their patient’s health to avoid the threat of 
criminal penalties.

To solve these dilemmas, this Court must either find the 
provision unconstitutional or enjoin enforcement of the defi­
nition to the extent that compliance with its requirement 
would in any way pose a threat to the life or health of a 
woman. With an injunction in place, a physician could, with­
out risk of criminal prosecution, treat the medical emergency 
exception as inclusive of those conditions, like inevitable 
abortion, premature ruptured membrane, and preeclampsia, 
which threaten a pregnant woman’s life or health.

96 The saving construction also fails to include other complications of 
pregnancy similar to those recognized by the district court. See Brief Amici 
Curiae of American College of Obstetricians & Gynecologists, el al.

97 The court of appeals cited neither legislative history nor decisional 
law as an authoritative basis for its construction. Nor could the court of 
appeals rely on the interpretation offered by the Attorney General. As this 
Court held in Virginia v. American Booksellers, 484 U.S. at 395, because 
“ the Attorney General does not bind the state courts or local law enforce­
ment authorities, we are unable to accept her interpretation of the law as 
authoritative.”



62

CONCLUSION

For the reasons set forth above, petitioners ask that this 
Court reaffirm the strict scrutiny standard of Roe v. Wade. 
Any other decision by this Court would forsake the promise 
of liberty and equality that has safeguarded the lives and 
health of American women for almost two decades. The 
judgment of the court of appeals finding unconstitutional the 
Act’s husband notification provision in § 3209 must be 
affirmed and the judgment finding constitutional §§ 3203 
(definition of medical emergency), 3205, 3206, 3207(b), 3208, 
3214(a) and (f) must be reversed.

Linda J. Wharton 
Carol E. Tracy 
Women’s Law Project 
125 South Ninth Street 
Suite 401
Philadelphia, PA 19107 
(215) 928-9801
Seth Kreimer 
University of Pennsylvania 

Law School 
3400 Chestnut Street 
Philadelphia, PA 19104 
(215) 898-7447
Roger K. Evans 
Eve W. Paul 
Dara Klassel 
Planned Parenthood Action 

Fund, Inc.
810 Seventh Avenue 
New York, New York 10019 
(212) 541-7800

Respectfully submitted,

Kathryn Kolbert 
{Counsel o f Record)

Janet Benshoof 
Lynn M. Paltrow 
Rachael N. Pine 
Andrew Dwyer 
Ellen K. Goetz 
Steven R. Shapiro 
John A. Powell 
American Civil Liberties Union 

Foundation 
132 W. 43rd Street 
New York, New York 10036 
(212) 944-9800

Attorneys for Petitioners 
and Cross-Respondents



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