Planned Parenthood of Southeastern Pennsylvania v. Casey Brief Amicus Curiae

    Nos. 91-744 and 91-902

3tt %  j5>upr(Emtrt nf llu> llmtrh Slatro
October Term, 1991

Planned Parenthood of Southeastern Pennsylvania,
ET AL., PETITIONERS

V.

Robert P. Casey, et al.

Robert P. Casey, et al., petitioners

v.

Planned Parenthood of Southeastern Pennsylvania,
e t  AL.

ON WRITS OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING RESPONDENTS

Ke n n e th  W . Starr 
Solicitor General

Stuart M. Gerson 
Assistant Attorney General

P a u l J. L a r k in , Jr .
Assistant to the Solicitor General

T hom as  G. H ungar 
Assistant to the Solicitor General

A lfred R. Mollin  
Attorney
Department of Justice 
Washington, D.C. 20530 
(202) 514-2217



QUESTIONS PRESENTED

1. Did the court of appeals err in upholding the con­
stitutionality of the following provisions of the Pennsyl­
vania Abortion Control Act: (a) 18 Pa. Cons. Stat. Ann. 
§ 3203 (Purdon 1983 & Supp. 1991) (definition of med­
ical emergency); (b) 18 Pa. Cons. Stat. Ann. § 3205 
(Purdon 1983 & Supp. 1991) (informed consent); (c) 
18 Pa. Cons. Stat. Ann. § 3206 (Purdon 1983 & Supp. 
1991) (parental consent); (d) 18 Pa. Cons. Stat. Ann. 
§§ 3207 and 3214 (Purdon 1983 & Supp. 1991) reporting 
requirements) ?

2. Did the court of appeals err in holding 18 Pa. Cons. 
Stat. Ann. § 3209 (Purdon Supp. 1991) (spousal notice) 
unconstitutional ?

( i )





TABLE OF CONTENTS
Page

Interest of the United States__________________________ 1
Statement___________________________________________  2
Summary o f argument_______   4
Argument:

The Pennsylvania Abortion Control Act does not 
violate the Constitution................................................  5
I. Abortion regulations should be upheld if they 

are reasonably designed to serve a legitimate 
state interest............................................................. 6
A. Abortion regulations should be subject to

heightened scrutiny only if they implicate a 
fundamental right ............................................  6

B. The Pennsylvania Abortion Control Act does 
not implicate a fundamental right under the
Due Process Clause.......................................   8
1. The Nation’s history and traditions do

not establish a fundamental right to 
abortion.........................................................  9

2. The State has a compelling interest in
protecting the fetus throughout preg­
nancy ................    15

II. The Pennsylvania Abortion Control Act is rea­
sonably designed to advance legitimate state 
interests.....................................................................  19

Conclusion................................................    29

TABLE OF AUTHORITIES
Cases:

Akron v. Akron Center for Reproductive Health,
462 U.S. 416 (1983)......... .........................3, 5,17, 20, 25

Bolger v. Youngs Drug Products Corp., 463 U.S.
60 (1983) ............................... .................................  11

Bowen V. Kendrick, 487 U.S. 589 (1988)................. 18
Bowers v. Hardwick, 478 U.S. 186 (1986)............... 7, 8, 9

( i l l )



Burnett v. Coronado Oil & Gas Co., 285 U.S. 393
(1932)...................................................... - ............... 9

Burnham v. Superior Court, 495 U.S. 604 (1990).. 8
Califano v. Aznavorian, 439 U.S. 170 (1978)........  7
Carey v. Population Servs. Int’l, 431 U.S. 678

(1977).............. .................................................... ... 15
Coker V. Georgia, 433 U.S. 584 (1977) .................... 14
Cox V. Wood, 247 U.S. 3 (1918)........... ............... —  14
Cruzan V. Director, 110 S. Ct. 2841 (1990)............  8, 20
DeShaney V. Winnebago County Dep’t of Social

Services, 489 U.S. 189 (1989)..................... 14
Doe V. Doe, 365 Mass. 556, 314 N.E.2d 128

(1974) ........................................................................ 23
Employment Division, Dep’t of Human Resources

V. Smith, 494 U.S. 872 (1990) ....................  18
Ferguson V. Skrupa, 372 U.S. 726 (1963) .............. 7
Geduldig v. Aiello, 417 U.S. 484 (1974) .................. 26
Griffin v. United States, 112 S. Ct. 466 (1991) ....... 8
Griswold V. Connecticut, 381 U.S. 479 (1965)......... 6-7, 8
Haig v. Agee, 453 U.S. 280 (1981)..........................  15
Harris V. McRae, 448 U.S. 297 (1980).... 13,18, 20, 22, 26
Hodgson v. Minnesota, 110 S. Ct. 2926 (1990) .... 1, 5, 22,

23, 25
Illinois v. Gates, 462 U.S. 213 (1983)....................... 16
Jacobson v. Massachusetts, 197 U.S. 11 (1905).... 14, 27
Jehovah’s Witnesses V. King County Hosp., 390 

U.S. 598 (1968), aff’g 278 F. Supp. 488 (W.D.
Wash. 1967)..............................................................  18

Judgment of Feb. 25, 1975, 39 BVerfGE 1, re­
printed in 9 J. Marshall J. Prac. & Proc. 605
(1975) ........................................................................ 12

Kirchberg V. Feenstra, 450 U.S. 455 (1981) .......... 26
Labine V. Vincent, 401 U.S. 532 (1971)..................  24, 25
Lee v. Washington, 390 U.S. 333 (1968)................. 15
Lehr v. Robertson, 463 U.S. 248 (1983)..................  24
Lindsey v. Normet, 405 U.S. 56 (1972)................... 14
Maher V. Roe, 432 U.S. 464 (1977) .......................... 21, 26
Marks V. United States, 430 U.S. 188 (1977)........  3
McKeiver V. Pennsylvania, 403 U.S. 528 (1971).... 8
Metro Broadcasting, Inc. V. FCC, 110 S. Ct. 2997

(1990)........................................................................  5

TV
Cases— Continued: Page



Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869
(1985) ....................................................................  15

Michael H. v. Gerald D., 491 U.S. 110 (1989)....7-8, 9,12,
13, 24

Michael M. v. Superior Court, 450 U.S. 464
(1981)....................................................................  14

Minnesota v. Probate Court, 309 U.S. 270 (1940).. 27
Miranda V. Arizona, 384 U.S. 436 (1966) ............. 16
Moore v. East Cleveland, 431 U.S. 494 (1977)....... 6, 7, 8
Morgentaler v. Regina, 1 S.C.R. 30, 44 D.L.R. 4th

385 (1988) ...........................................................  12
Near v. Minnesota, 283 U.S. 697 (1931) .............. 15-16
Ohio v. Akron Center for Reproductive Health,

110 S. Ct. 2972 (1990) ........................................ 19, 24
Palko v. Connecticut, 302 U.S. 319 (1937) ...........  7
Patterson v. New York, 432 U.S. 197 (1977)........  8
Pierce v. Society of Sisters, 268 U.S. 510 (1925).. 6
Planned Parenthood v. Danforth, 428 U.S. 52

(1976)  ................20, 24, 28
Planned Parenthood Ass’n v. Ashcroft, 462 U.S.

476 (1983) ...........................................................  28
Poe V. Gerstein, 517 F.2d 787 (5th Cir. 1975),

aff’d, 428 U.S. 901 (1976) ................................... 23
Poe V. UUman, 367 U.S. 497 (1961) ....................... 16
Prince V. Massachusetts, 321 U.S. 158 (1944)......  18
Reynolds v. United States, 98 U.S. 145 (1879)....  18
Riley v. National Fed’n of the Blind, 487 U.S. 781

(1988) .............      21
Roe v. Wade, 410 U.S. 113 (1973) ............................passim
Rust v. Sullivan, 111 S. Ct. 1759 (1991) ............... 8
Schad v. Arizona, 111 S. Ct. 2491 (1991) ...............  8
Scheinberg v. Smith, 659 F.2d 476 (5th Cir.

1981) ......................................................................  25
Schloendorff v. Society of the New York Hosp.,

211 N.Y. 125, 105 N.E. 92 (1914) ......................  13
Schmerber v. California, 384 U.S. 757 (1966) ....... 13-14
Selective Draft Law Cases, 245 U.S. 366 (1918).... 14
Skinner v. Oklahoma, 316 U.S. 535 (1942)............ 24
Slater v. Baker, 2 Wils. 359, 95 Eng. 860 (K.B.

1767) ......................................................................  20
Snyder v. Massachusetts, 291 U.S. 97 (1934).........  8

V
Cases— Continued: Page



Sosna v. Iowa, 419 U.S. 393 (1975)......................... 25
Stanford v. Kentucky, 492 U.S. 361 (1989) ......... 8,11,12
Thornburgh v. American College of Obstetricians

& Gynecologists, 476 U.S. 747 (1986).....3, 5,13,17,18,
20, 21, 27, 28

United States v. Kozminski, 487 U.S. 931 (1988).. 19
United States V. O’Brien, 391 U.S. 367 (1968)...... 11
United States V. Salerno, 481 U.S. 739 (1987)..... 19
United States Dep’t of Agric. v. Moreno, 413 U.S.

528 (1973) ............................................................... 15
Vance V. Bradley, 440 U.S. 93 (1979) ...................... 21
Virginia V. American Booksellers Ass’n, 484 U.S.

383 (1988) .........................   27
Vitek v. Jones, 445 U.S. 480 (1980) ........................ 13
Washington v. Harper, 494 U.S. 210 (1990)........... 13
Webster v. Reproductive Health Care Servs., 492

U.S. 490 (1989).......................1, 5, 6, 9,14,15,17,19, 26
Williamson v. Lee Optical Co., 348 U.S. 483

(1955)........................................................................ 7
Winston v. Lee, 470 U.S. 753 (1985)......................... 14
Wyman v. James, 400 U.S. 309 (1971) .................. 28
Zauderer v. Office of Disciplinary Counsel, 471

U.S. 626 (1985) .........................   21
Zobel v. Williams, 457 U.S. 55 (1982) .................... 15

Constitution and statutes:
U.S. Const.:

Amend. 1................................................................  21
Establishment Clause..................................  18
Free Exercise Clause................................... 18,19

Amend. I V .............................................................  14
Amend. V (Due Process Clause) ...............5, 6, 8,14-15
Amend. V I II .......................................................... 8
Amend. X ..............................................................  6
Amend. X I I I ..............................   19
Amend. X IV ..........................................................  4,10

Equal Protection Clause..............................  26
Act of Sept. 30, 1976, Pub. L. No. 94-439, §209,

90 Stat. 1434 (Hyde Amendment)....................... 2,18

VI
Cases— Continued: Page



Statutes— Continued: Page
Public Health Service Act (Adolescent Family

Life Act of 1981), 42 U.S.C. 300z et seq.............. 2,18
Abortion Control Act, 18 Pa. Cons. Stat. Ann. 

(Purdon) :
§§ 3201-3220 (1983 & Supp. 1991)....................  2
§ 3202(a) (1983).................................................  11
§ 3202(b) (1983) ................................................  2
§ 3202(b) (4) (1983)..............................   11
§ 3203 (Supp. 1991) ............................................  26
§ 3203(a) (1983).................................................. 2
§ 3204(c) (Supp. 1991) ......................................  2,18
§ 3205 (a) (1) (Supp. 1991)................................  20
§ 3205(a) (2) (1983 & Supp. 1991) ................... 20
§ 3206 (a) (1983 & Supp. 1991).......................... 22
§ 3206(b) (1983) ......     22
§ 3206 ( c ) (  1983) .................................................  22
§ 3206(d) (1983).................................................  22
§ 3206 (e) - (h) (1983 & Supp. 1991) .................. 22
§ 3207 (1983 & Supp. 1991) ................................  27
§ 3209 (a) (Supp. 1991)....................................... 23, 25
§ 3209(b) (Supp.1991) .....................................  23
§ 3211 (a) (1983 & Supp. 1991).........................  2
§ 3214 (Supp. 1991) ............................................  27-28
§3214 (a) (Supp. 1991) ......................................  27,28

Colo. Rev. Stat. Ann. § 18-6-101 (1) (West 1986) .... 23
Lord Ellenborough’s Act, 1803, 43 Geo. 3, ch. 58......  10

Miscellaneous:
A. Bickel, The Morality of Consent (1975) ............... 9
Bopp, Will There Be a Constitutional Right to 

Abortion After the Reconsideration of Roe v.
Wade?, 15 J. Contemp. L. 131 (1989) ................ 19

Burt, The Constitution of the Family, 1979 Sup.
Ct. Rev. 329 ...................    9

A. Cox, The Court and the Constitution (1987).....  9
J. Ely, Democracy and Distrust—A Theory of

Judicial Review (1980).........................................  9
Ely, The Wages of Crying Wolf: A Comment on

Roe v. Wade, 82 Yale L.J. 920 (1973) ................  16-17
Epstein, Substantive Due Process by Any Other 

Name: The Abortion Cases, 1973 Sup. Ct. Rev.
159..............................................................................  9,11

VII



Miscellaneous— Continued: Page

M. Glendon, Abortion and Divorce in Western
Law (1987) ..........................................................  12

Gunther, Some Reflections on the Judicial Role: 
Distinctions, Roots, and Prospects, 1979 Wash.
U.L.Q. 817.............................................................. 9

3 F. Harper, F. James, Jr. & 0. Gray, The Law of
Torts (2d ed. 1986)............................................... 13, 20

J. Mohr, Abortion in America (1978)............... 10,11,17
Siegel, Reasoning From the Body: A Historical 

Perspective on Abortion Regulation and Ques­
tions of Equal Protection, 44 Stan. L. Rev. 261
(1992)....................................................... ...........  10,11

L. Tribe, American Constitutional Law (2d ed.
1988)................     17

Wellington, Common Law Rules and Constitutional 
Double Standards: Some Notes on Adjudica­
tion, 83 Yale L.J. 221 (1973) . 9



3n lip ^lpirrmr dmtrt nf lip lltttlri) fla irs
October  T e r m , 1991

No. 91-744
P l a n n e d  P aren th o o d  of So u th e a ste r n  P e n n s y l v a n ia ,

ET AL., PETITIONERS,

V.

R obert P. Ca s e y , e t  a l .

No. 91-902
R obert P. Ca s e y , e t  a l ., pe titio n e r s  

v.
P l a n n e d  P a r e n th o o d  of So u th e a ste r n  P e n n s y l v a n ia ,

e t  AL.

ON WRITS OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING RESPONDENTS

INTEREST OF THE UNITED STATES

This Court granted review in order to resolve several 
issues regarding the constitutionality of the 1988 and 
1989 amendments to the Pennsylvania Abortion Control 
Act. In Webster v. Reproductive Health Care Servs., 492 
U.S. 490 (1989), and Hodgson v. Minnesota, 110 S. Ct. 
2926 (1990), the United States filed briefs as an amicus

( 1 )



2

curiae in which we argued that Roe v. Wade, 410 U.S. 
113 (1973), was wrongly decided and should be over­
ruled. Moreover, Congress has enacted laws affecting 
abortion.1 The United States therefore has a substantial 
interest in the outcome of this case.

STATEMENT

1. In 1988 and 1989, Pennsylvania amended its Abor­
tion Control Act, 18 Pa. Cons. Stat. Ann. §■§ 3201-3220 
(Purdon 1983 & Supp. 1991). The purpose of the Act 
is to “protect hereby the life and health of the woman 
subject to abortion” and “ the child subject to abortion,” 
to “ foster the development of standards of professional 
conduct in a critical area of medical practice,” to “ pro­
vide for development of statistical data,” and to “ protect 
the right of the minor woman voluntarily to decide to 
submit to abortion or to carry her child to term.” Id. 
§ 3203(a) (Purdon 1983); see also id. § 3202(b) (Pur­
don 1983) (legislative findings). The Act outlaws post­
viability abortions and pre-viability abortions based on 
the fetus’s sex. Id. § 3204(c) (Purdon Supp. 1991), 
§ 3211(a) (Purdon 1983 & Supp. 1991). Otherwise, the 
Act regulates but does not ban abortion. Five such reg­
ulations are at issue here: the informed consent, in­
formed parental consent, and spousal notification re­
quirements; the definition of a medical emergency, which 
is an exception to the first three provisions; and certain 
reporting requirements.

2. Petitioners, five abortion clinics and one physician, 
brought this action three days before the 1988 amend­
ments would have taken effect, seeking to have those 
amendments (and later the 1989 amendments) declared 
unconstitutional. The district court entered preliminary 
injunctions against the 1988 and 1989 amendments. After

1 E.g., Act of Sept. 30, 1976, Pub. L. No. 94-439, § 209, 90 Stat. 
1434 (the Hyde Amendment); Public Health Service Act (the 
Adolescent Family Life Act of 1981), 42 U.S.C. 300z et seq.



3

a bench trial, relying on Roe v. Wade, Akron v. Akron 
Center for Reproductive Health, 462 U.S. 416 (1983)
(Akron I), and Thornburgh v. American College of Ob­
stetricians & Gynecologists, 476 U.S. 747 (1986), the 
court held unconstitutional the five provisions noted above 
and permanently enjoined their enforcement. 91-744 Pet. 
App. (Pet. App.) 104a-287a.

3. The court of appeals, by a divided vote, affirmed 
in part and reversed in part. Pet. App. la-103a. At the 
outset, the court addressed the correct standard of re­
view for abortion regulations. Relying on Marks v. 
United States, 430 U.S. 188 (1977), the court concluded 
that when this Court issues a judgment without a ma­
jority opinion, “ the holding of the Court may be viewed 
as that position taken by those members who concurred 
in the judgment on the narrowest grounds.” Pet. App. 
20a, 15a-24a. Applying that approach to this Court’s 
decisions, the court held that the strict scrutiny standard 
of Roe, Akron I, and Thornburgh was no longer applica­
ble after Webster and Hodgson. Instead, the court de­
termined, the undue burden standard adopted by Justice 
O’Connor now constituted the governing rule. Pet. App. 
24a-30a.

The Third Circuit then applied the undue burden stand­
ard to the Pennsylvania Act. The court unanimously held 
that the definition of medical emergency included condi­
tions posing a significant risk of death or serious injury 
to a woman, and that the informed consent, informed 
parental consent, and reporting requirements did not un­
duly burden a woman’s right to an abortion. Pet. App. 
33a-60a, 75a-85a. By contrast, a majority of the court 
held that the spousal notification provision was unduly 
burdensome and that the State lacked a compelling in­
terest in ensuring such notification. Pet. App. 60a-74a. 
Judge Alito dissented from that portion of the majority’s 
decision. Pet. App. 86a-103a.



4

SUMMARY OF ARGUMENT

I. Under this Court’s decisions, a liberty interest is 
“ fundamental” and thus deserves heightened protection 
only if our Nation’s history and traditions have protected 
that interest from state restriction. Those sources do not 
establish a fundamental right to abortion. Abortion after 
quickening was a crime at common law; the first English 
abortion statute outlawed abortions throughout pregnancy; 
state laws condemning or restricting abortion were com­
mon when the Fourteenth Amendment was ratified; and 
21 of those laws were still in existence in 1973. Thus, 
strict scrutiny is inappropriate. The correct standard of 
review is the one endorsed by the Webster plurality. In 
any event, a State has a compelling interest in protecting 
fetal life throughout pregnancy.

II. The challenged provisions of the Pennsylvania Act 
are reasonably designed to advance legitimate state in­
terests. The informed consent and waiting period re­
quirements ensure that a woman knows the relevant facts 
and can reflect on them before making a final decision. 
The informed parental consent requirement enables par­
ents to make important decisions affecting their child. 
The spousal notification requirement can help protect 
the life of a fetus, the integrity of the family unit, and 
the husband’s interests in procreation within marriage 
and the potential life of his unborn child. The definition 
of medical emergency includes those conditions that put 
a woman’s life or health at significant risk. The report­
ing rules help in enforcing the ban on abortion of viable 
fetuses (except to protect a mother’s life or health), in 
advancing medical knowledge, and in informing the pub­
lic about the use of state tax dollars.



5

ARGUMENT

THE PENNSYLVANIA ABORTION CONTROL ACT
DOES NOT VIOLATE THE CONSTITUTION

In Roe v. Wade, a divided Court held that a woman 
has a fundamental right to an abortion; the Court also 
adopted a complex trimester framework to determine 
whether and how a State may regulate abortion. Since 
then, a majority of the Members of this Court has ex­
pressed the view that Roe and succeeding cases should be 
limited or overruled. See Webster, 492 U.S. at 517-521 
(plurality opinion of Rehnquist, C.J., joined by White & 
Kennedy, J J .) ; id. at 532 (opinion of Scalia, J . ) ; Hodg­
son, 110 S. Ct. at 2984 (Scalia, J., concurring); Thorn­
burgh, 476 U.S. at 786-797 (White, J., dissenting, 
joined by Rehnquist, J . ) ; Akron I, 462 U.S. at 453-459 
(O’Connor, J., dissenting, joined by White & Rehnquist, 
JJ.). At the same time, none of the opinions in recent 
abortion cases commanded a majority. The result is that 
considerable uncertainty now prevails with respect to 
the proper standard of review applicable when legisla­
tion affecting abortion is challenged under the Due Proc­
ess Clause. The Third Circuit’s opinion in this case 
illustrates this uncertainty.

Ascertaining the correct standard of review is not only 
the threshold issue, but also a critical one. Here, as else­
where, the question of the correct standard that the courts 
should employ is not merely “ a lawyer’s quibble over 
words,” but “ establishes whether and when the Court and 
Constitution allow the Government to”  regulate a woman’s 
abortion decision. Metro Broadcasting, lux. v. FCC, 110 
S. Ct. 2997, 3033 (1990) (O’Connor, J., dissenting). This 
issue is one in need of clarification if the legislatures, 
lower courts, and litigants are to have guidance in this 
difficult area. We believe that the correct standard was 
the one articulated by the Webster plurality: Is a regula­
tion reasonably designed to serve a legitimate state inter-



6

est? That standard should be applied to the questions in 
this case and to abortion regulations generally.2

I. ABORTION REGULATIONS SHOULD BE UPHELD 
IF THEY ARE REASONABLY DESIGNED TO 
SERVE A LEGITIMATE STATE INTEREST

A. Abortion Regulations Should Be Subject To 
Heightened Scrutiny Only If They Implicate A 
Fundamental Right

The ultimate source for constitutional rights is the text 
of the Constitution. That text, of course, is silent with 
respect to abortion; the Constitution leaves this matter to 
the States, since only the States possess a general, regu­
latory police power. See Roe, 410 U.S. at 177 (Rehnquist, 
J., dissenting) ( “ the drafters did not intend to have the 
Fourteenth Amendment withdraw from the States the 
power to legislate with respect to this matter” ) ; U.S. 
Const. Amend. X. The “ right to an abortion”  was ju­
dicially recognized in Roe as “ derived from the Due Proc­
ess Clause,”  Webster, 492 U.S. at 521 (plurality opinion) ; 
Roe, 410 U.S. at 153. By its terms, however, the Due 
Process Clause seeks to ensure that the government af­
fords a person the process she is due before it attempts 
to deprive her of life, liberty, or property. The text of 
the Clause therefore focuses on procedure, not substance.

This Court’s decisions nevertheless hold that the Clause 
provides a measure of substantive protection to certain 
liberty interests. See, e.g., Moore v. East Cleveland, 431 
U.S. 494 (1977); Pierce v. Society of Sisters, 268 U.S. 
510 (1925); Griswold V. Connecticut, 381 U.S. 479, 501

2 Petitioners note, Pet. Br. 36-37, that we urged this Court to 
adopt an “ undue burden”  analysis in Akron /, but criticized and 
abandoned that standard in Webster and Hodgson. We adhere to 
our views as expressed in the latter two cases. In our view, the 
undue burden standard begs the question at issue (namely, whether 
there is a fundamental right to abortion) and does not provide a 
meaningful guide for assessing the weight of the competing 
interests.



7
(1965) (Harlan, J., concurring in the judgment). At 
the same time, the Court has been cautious in identifying 
such rights, recognizing that once the courts venture be­
yond the “ core textual meaning” of “ liberty” as freedom 
from bodily restraint, the imputation of substance to that 
concept is a “ treacherous” undertaking. Michael H. v. 
Gerald D., 491 U.S. 110, 121 (1989) (plurality opinion) 
(citation omitted). Accordingly, the Court has recognized 
that it “ is most vulnerable and comes nearest to illegiti­
macy when it deals with judge-made constitutional law 
having little or no cognizable roots in the language or 
design of the Constitution.” Bowers v. Hardunck, 478 
U.S. 186, 194 (1986).

The general standard of review in assessing a sub­
stantive due process claim is highly deferential to legis­
lative judgments. As a rule, a state or federal law that 
trenches on an individual’s liberty interest will be upheld 
as long as it is rationally related to a legitimate govern­
mental interest. See, e.g., Califano v. Aznavorian, 439 
U.S. 170, 176-178 (1978); Ferguson V. Skrupa, 372 U.S. 
726 (1963); Williamson v. Lee Optical Co., 348 U.S. 483 
(1955). In some sensitive areas, however, the Court has 
gone further and held that certain liberty interests rise 
to the level of “ fundamental rights”  and are subject to 
more exacting scrutiny. Michael H., 491 U.S. at 122 
(plurality opinion). Where that is the case, the State 
may restrict such a liberty interest only through means 
that are narrowly tailored to serve a compelling state 
interest. Roe v. Wade, 410 U.S. at 155-156 (collecting 
cases). Accordingly, the applicable standard of review in 
substantive due process cases is principally a function of 
the methodology used for identifying what rights are 
“ fundamental.”

This Court has held that a liberty interest will be 
deemed fundamental if it is “ implicit in the concept of 
ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 
325 (1937), is “ deeply rooted in this Nation’s history and 
tradition,”  Moore, 431 U.S. at 503 (plurality opinion), 
or is “ so rooted in the traditions and conscience of our 
people as to be ranked as fundamental,”  Michael H., 491



8

U.S. at 122 (plurality opinion) (quoting Snyder V. Mass­
achusetts, 291 U.S. 97, 105 (1934)). See Bowers, 478 
U.S. at 192-194. The precise formulation may vary, but 
the governing methodology rests on the Nation’s history 
and traditions. E.g., Burnham v. Superior Court, 495 
U.S. 604, 608-619 (1990) (plurality opinion); Michael
H., 491 U.S. at 122-130 (plurality opinion); Bowers, 478 
U.S. at 192-194; Moore, 431 U.S. at 504 n.12 (plurality 
opinion); Griswold, 381 U.S. at 501 (Harlan, J., concur­
ring in the judgment). See Cruzan v. Director, 110 S. Ct. 
2841, 2846-2851 & n.7 (1990).3 By so limiting funda­
mental rights, the Court has sought, in the words of the 
Michael H. plurality, to “ prevent future generations from 
lightly casting aside important traditional values,”  while 
assuring that the Due Process Clause does not become a 
license “ to invent new ones.” 491 U.S. at 122 n.2. See 
Moore, 431 U.S. at 504 n.12 (plurality opinion).

B. The Pennsylvania Abortion Control Act Does Not 
Implicate A Fundamental Right Under The Due 
Process Clause

Petitioners’ principal submission is that the Court 
should reaffirm the fundamental right to abortion identi­
fied in Roe. As we explained in our briefs in Akron I, 
Thornburgh, Webster, Hodgson, and Rust V. Sullivan, 
111 S. Ct. 1759 (1991), Roe v. Wade was wrongly de­
cided and should be overruled. We strongly adhere to 
that position in this case.4 But regardless of whether this

3 That approach is consistent with this Court’s procedural due 
process and Eighth Amendment decisions. In those areas, too, this 
Court has insisted that, at a minimum, history and tradition must 
inform/ the otherwise broad and general constitutional text. See, 
e.g., Griffin v. United States, 112 S. Ct. 466, 469-470 (1991) ; 
Schad v. Arizona, 111 S. Ct. 2491, 2500-2503 (1991) (plurality 
opinion) ; id. at 2505-2507 (opinion of Scalia, J.) ; Stanford V. 
Kentucky, 492 U.S. 361, 368-370 (1989) ; Patterson V. New York, 
432 U.S. 197, 202 (1977); McKeiver V. Pennsylvania, 403 U.S. 
528,548 (1971) (plurality opinion).

4 As we explained in our Webster brief (at 9-10), stare decisis 
considerations do not preclude reconsidering and overruling Roe.



9
case requires reconsideration of Roe’s actual holding, see 
Webster, 492 U.S. at 521 (plurality opinion), the Court 
should clarify the standard of review of abortion regula­
tion and, in so doing, make clear that the liberty interest 
recognized in Webster does not rise to the exceptional 
level of a fundamental right.

1 . The Nation’s history and traditions do not estab­
lish a fundamental right to abortion

In Webster, a plurality of the Court determined that 
a woman’s interest in having an abortion is a form of 
liberty protected by due process against arbitrary depri­
vation by the State. 492 U.S. at 520. Under the tradi­
tional means used by this Court to identify fundamental 
rights, however, no credible foundation exists for the 
claim that a woman enjoys a fundamental right to abor­
tion.® That conclusion follows whether the inquiry is 
framed broadly, in terms of privacy or reproductive 
choice, or narrowly, in terms of abortion. Compare 
Michael H., 491 U.S. at 127-128 n.6 (opinion of Scalia, 
J .), with id. at 132 (O’Connor, J., concurring in part).

I f  “ [n]either the length of time a majority has held its convictions 
[n]or the passions with which it defends them can withdraw legi- 
lation from this Court’s scrutiny,”  Bowers, 478 U.S. at 210 (Black- 
mun, J., dissenting), neither factor should immunize one of this 
Court’s constitutional rulings from re-examination, because in 
such cases “correction through legislative action is practically im­
possible.”  Burnett v. Coronado Oil & Gas Co., 285 U.S. 393, 407 
(1932) (Brandeis, J., dissenting). 5 *

5 That judgment is shared by a broad spectrum of constitutional 
scholars. See, e.g., A. Bickel, The Morality of Consent 27-29
(1975) ; Burt, The Constitution of the Family, 1979 Sup. Ct. Rev. 
329, 371-373; A. Cox, The Court and the Constitution 322-338 
(1987) ; J. Ely, Democracy and Distrust— A Theory of Judicial 
Review 2-3, 247-248 n.52 (1980); Epstein, Substantive Due Process 
by Any Other Name: The Abortion Cases, 1973 Sup. Ct. Rev. 159: 
Gunther, Some Reflections on the Judicial Role: Distinctions, 
Roots, and Prospects, 1979 Wash. U.L.Q. 817, 819; Wellington, 
Common Law Rules and Constitutional Double Standards: Some 
Notes on Adjudication, 83 Yale L.J. 221, 297-311 (1973).



10

To examine this proposition, we turn to explore the legal 
history and traditions of the American people to discern 
the basis and nature of any such right.

a. It is beyond dispute that abortion after “ quicken­
ing” was an offense at common law.6 The first English 
abortion law, Lord Ellenborough’s Act, 1803, 43 Geo. 3, 
ch. 58, outlawed abortion throughout pregnancy; it dis­
tinguished pre- from post-quickening abortions only to 
fix the severity of punishment. Early in our history, this 
Nation embraced the common law. In 1821, however, 
States began to enact laws condemning or restricting 
abortion. By the time the Fourteenth Amendment was 
ratified, such legislation was commonplace; in 1868, at 
least 28 of the then-37 States and 8 Territories had stat­
utes banning or limiting abortion. The Reconstruction 
Era witnessed “ the most important burst of anti-abortion 
legislation in the nation’s history.”  J. Mohr, Abortion in 
America 200 (1978).7 By the turn of the century, after 
“ the passage of unambiguous anti-abortion laws in most 
of the states that had not already acted during the previ­
ous twenty years,”  the country had completed the transi­
tion from a Nation that followed the common law rule

6 The historical materials are discussed in Roe, 410 U.S. at 132- 
141; id. at 174-177 & nn.1-2 (Rehnquist, J., dissenting); J. Mohr, 
Abortion in America (1978) ; Siegel, Reasoning From the Body: 
A Historical Perspective on Abortion Regulation and Questions of 
Equal Protection, 44 Stan. L. Rev. 261, 281-282 (1992) ; Amicus 
Br. of the American Academy o f Medical Ethics; Amicus Br. of 
Certain American State Legislators.

7 “ At least 40 anti-abortion statutes of various kinds were placed 
on the state and territorial lawbooks during that period [between 
1860 and 1880]; over 30 in the years from 1866 through 1877 
alone. Some 13 jurisdictions formally outlawed abortion for the 
first time, and at least 21 states revised their already existing 
statutes on the subject. More significantly, most of the legislation 
passed between 1860 and 1880 explicitly accepted the regulars’ 
[j.e., regular physicians’ ] assertions that the interruption of ges­
tation at any point in a pregnancy should be a crime and that the 
state itself should try actively to restrict the practice of abortion.”
J. Mohr, supra, at 200.



11

outlawing post-quickening abortion to “a nation where 
abortion was legally and officially proscribed.”  Id. at 
226. “ Every state in the Union had an anti-abortion law 
of some kind on its books by 1900 except Kentucky, where 
the state courts outlawed the practice anyway.”  Id. at 
229-230. With minor refinements and adjustments, those 
statutes, which reflected “ a basic legislative consensus,” 
remained unchanged until the 1960’s. Id. at 229. And 21 
of those laws were in effect in 1973 when Roe was de­
cided, even after a decade of efforts at liberalization.8

In view of this historical record, it cannot persuasively 
be argued that the interest in having an abortion is so 
deeply rooted in our history as to be deemed “ fundamen­
tal.” The record in favor of the right to an abortion is 
no stronger than the record in Michael H., where the 
court found no fundamental right to visitation privileges 
by adulterous fathers, or in Bowers, where the Court 
found no fundamental right to engage in homosexual 
sodomy. Cf. Stanford v. Kentucky, 492 U.S. 361, 370-373 
(1989) (no consensus against execution of 16-year-olds 
when a majority of the States with capital punishment

8 Amici 250 Historians contend that laws banning abortion were 
originally adopted for various ignoble reasons, not to protect life 
in the womb. 250 Historians Br. 15-26. That claim is overstated, 
J. Mohr, supra, 35-36, 165, 200; Siegel, 44 Stan. L. Rev. at 282, 
but it is irrelevant in any event. “ It is a familiar principle of 
constitutional law that this Court will not strike down an other­
wise constitutional statute on the basis of an alleged illicit legisla­
tive motive,” United States V. O’Brien, 391 U.S. 367, 383 (1968), 
and that “ the insufficiency of the original motivation does not di­
minish other interests that the restriction may now serve,”  Bolger 
V. Youngs Drug Products Corp., 463 U.S. 60, 71 (1983); Epstein, 
1973 Sup. Ct. Rev. at 168 n.34. Pennsylvania “ places a supreme 
value upon protecting human life,”  including prenatal life, 18 Pa. 
Cons. Stat. Ann. §3202 (b )(4 ) (Purdon 1983), and the purpose 
of this Act is to “protect hereby the life and health o f the woman 
subject to abortion” and “ the child subject to abortion,” id. 
§ 3202(a) (Purdon 1983). Just as the widespread use of controlled 
substances does not render the drug laws unconstitutional, so, too, 
the prevalance of illegal abortions does not undermine laws outlaw­
ing or restricting abortion.



12

allows them to be executed). In short, this Nation’s his­
tory rebuts any claim that the right to obtain an abortion 
is fundamental, since that history does not “exclude * * * 
a societal tradition of enacting laws denying that inter­
est.”  Michael H., 491 U.S. at 122 n.2 (opinion of Scalia, 
J., joined by Rehnquist, C.J., O’Connor & Kennedy, JJ.).°

0 The prevalence of bans or restrictions on abortion prior to 
Roe was “not merely an historical accident.”  Stanford, 492 U.S. 
at 369 n.l (citation omitted). After studying the abortion laws of 
20 Western countries, a leading comparative law scholar reported 
that “ we have less regulation o f abortion in the interest o f the 
fetus than any other Western nation,”  and “to a greater extent 
than in any other country, our courts have shut down the legis­
lative process of bargaining, education, and persuasion on the 
abortion issue.”  M. Glendon, Abortion and Divorce in Western 
Law 2 (1987). Two of those nations (Belgium and Ireland) have 
blanket prohibitions against abortion in their criminal law, sub­
ject only to the defense of necessity. Four countries (Canada, 
Portugal, Spain, and Switzerland) allow abortion only early in 
pregnancy and only in restricted instances, such as if there is a 
serious danger to the pregnant woman’s health, a likelihood of 
serious disease or defect in the fetus, or the pregnancy resulted 
from rape or incest. Eight countries (Great Britain, Finland, 
France, West Germany, Iceland, Italy, Luxembourg, and the Neth­
erlands) permit abortion in early pregnancy in a wider variety of 
circumstances that pose a particular hardship for a pregnant 
woman. Five nations (Austria, Denmark, Greece, Norway, and 
Sweden) allow elective abortions early in pregnancy, and strictly 
limit abortions thereafter. Only the United States permits elective 
abortion until viability. Id. at 13-15 & Table 1, 145-154. Indeed, 
Eastern European nations and the former Soviet Union had 
greater restrictions on abortion than this country does. Id. at 23- 
24. Thus, the fact that the regime created by Roe is so out of step 
with these judgments suggests that it is Roe, not the pre-Roe state 
of our law, that is “ an historical accident.”

After the publication of Professor Glendon’s book, the Canadian 
Supreme Court struck down its abortion law on grounds similar 
to those stated in Roe. Morgentaler v. Regina, 1 S.C.R. 30, 44 
D.L.R.4th 385 (1988). The West German constitutional court, by 
contrast, had earlier struck down a law liberalizing access to abor­
tion on the grounds that “  ‘life developing within the womb’ is 
constitutionally protected.”  Judgment of Feb. 25, 1975, 39 BVerfGE 
1 (quoted in M. Glendon, supra, at 26). See 9 J. Marshall J. Prac. 
& Proc. 605 (1975) (reprinting decision).



13

b. Petitioners argue that “ compelled continuation of 
a pregnancy infringes on a woman’s right to bodily in­
tegrity by imposing substantial physical intrusions and 
significant risks of physical harm” and that abortion re­
strictions deny women “ the right to make autonomous 
decisions about reproduction and family planning.”  Pet. 
Br. 24, 26. Roe made a similar point. 410 U.S. at 153.10

10 Roe did not seek to ground a right to abortion in the text of 
the Constitution or this Nation’s history and tradition. Instead, 
Roe fashioned the “ fundamental right” to abortion by reference to 
several decisions of this Court. Roe described those decisions as 
recognizing a “guarantee of personal privacy,” which “has some 
extension to activities relating to marriage, procreation, contracep­
tion, family relationships, and child rearing and education.”  410 
U.S. at 152-153 (citations omitted). “ This right to privacy,”  Roe 
declared, “ is broad enough to encompass a woman’s decision 
whether or not to terminate her pregnancy.” Id. at 153.

That line of reasoning, with all respect, is deeply flawed. Even 
if this Court’s pre-Uoe decisions have a common denominator, it 
is not a highly abstract right to “ privacy,” but a recognition of the 
importance of the family. Cf. Michael H., 491 U.S. at 123 
(plurality opinion). Even if those cases have “some extension” 
to “activities relating to” the family, abortion is “ inherently dif­
ferent” from activities such as the use of contraceptives. Abortion, 
after all, “ involves the purposeful termination of potential life.” 
Harris v. McRae, 448 U.S. 297, 325 (1980); see generally Thorn­
burgh, 476 U.S. at 792 n.2 (White, J., dissenting). For that reason, 
Roe itself realized that a “ pregnant woman cannot be isolated in her 
privacy.” 410 U.S. at 159. In sum, Roe derived a right to abortion 
from pre-Roe cases only by creating an artificial common denomina­
tor while denying what makes abortion unique.

By contrast, a law mandating abortions would pose a starkly 
different issue. At common law, a competent adult had a right to 
refuse medical care, and involuntary treatment was a battery ab­
sent consent or an emergency. Schloendorff v. Society of the New 
York Hosp., 211 N.Y. 125, 129-130, 105 N.E. 92, 93 (1914) (Car- 
dozo, J . ) ; 3 F. Harper, F. James, Jr. & O. Gray, The Law of Torts 
§17.1 (2d ed. 1986). Relying on that tradition, the Court has held 
that a competent adult has a liberty interest protected by due 
process in refusing unwanted, state-administered medical care. 
Washington v. Harper, 494 U.S. 210, 229 (1990) ; Vitek v. Jones, 
445 U.S. 480, 494 (1980). Moreover, a compelled intrusion into a 
person’s body is a “ search” under the Fourth Amendment, Schmer-



14

We readily agree that pregnancy (like abortion) entails 
“profound physical, emotional, and psychological conse­
quences.”  Michael M. v. Superior Court, 450 U.S. 464, 
471 (1981) (plurality opinion). But those burdens, albeit 
substantial, do not themselves give rise to a fundamental 
right. As this Court has recognized, governmental re­
fusal to fund abortions can be quite burdensome, yet the 
Constitution does not guarantee a woman the right to 
such funds. And that is so even if the State funds child­
birth expenses. Webster, 492 U.S. at 507-511. The re­
fusal to supply other forms of government assistance can 
prove harmful, yet the Constitution does not require a 
State to intervene to prevent harm from befalling a per­
son. DeShaney v. Winnebago County Dep’t of Social 
Servs., 489 U.S. 189 (1989) (police protection); Lindsey 
v. Normet, 405 U.S. 56 (1972) (shelter). I f risk of 
physical or psychological harm were sufficient to create a 
constitutional right, a person would arguably have a 
right to avoid vaccinations or military service. But there 
is no such right. Jacobson v. Massachusetts, 197 U.S. 11 
(1905); Selective Draft Law Cases, 245 U.S. 366 (1918) ; 
Cox v. Wood, 247 U.S. 3 (1918). In sum, risk of harm, 
standing alone, does not give rise to a constitutional 
right.

Nor is this conclusion altered by the fact that abortion 
is a controversy “ of a ‘sensitive and emotional nature,’ 
generating heated public debate and controversy, ‘with 
vigorous opposing views’ and ‘deeply and seemingly abso­
lute convictions.’ ” New York et al. Br. 11 (quoting Roe, 
410 U.S. at 116). Other subjects, such as capital punish­
ment, likewise evoke strong emotions and inspire heated 
debate. Yet the Constitution leaves such questions in the 
main to the political process to decide.11 In short, the Due

ber V. California, 384 U.S. 757, 767-768 (1966), and the Fourth 
Amendment prohibits as unreasonable certain forcible intrusions 
into a person’s body, Winston V. Lee, 470 U.S. 753 (1985).

11 The Court has, of course, established limits in that regard. 
See, e.g., Coker V. Georgia, 433 U.S. 584 (1977). But within those



15
Process Clause does not remove issues from the political 
process and put them before the judiciary for resolution 
because they are difficult and divisive.

We believe that the proper inquiry in reviewing an 
abortion regulation is whether the regulation is reason­
ably designed to advance a legitimate state interest, 
as a plurality of this Court articulated in Webster. 492
U. S. at 520. That standard of review is deferential, 
but not toothless. Indeed, this Court has held laws in­
valid under such a standard. Compare, e.g., Metropoli­
tan Life Ins. Co. v. Ward, 470 U.S. 869 (1985); Zobel
V. Williams, 457 U.S. 55 (1982); United States Dep’t of 
Agric. v. Moreno, 413 U.S. 528 (1973). No reason exists 
to assume that courts will abdicate their responsibility 
to ensure that abortion regulations pass muster under 
that standard. Legislatures under that constitutional 
regime will not be able arbitrarily or unreasonably to 
constrain a woman’s liberty interest.

2. The S tate has a com pelling in terest in p ro tect­
ing the fetu s  throughout pregnancy

Even if the Court’s pre-Roe decisions could be said to 
create a right of “privacy”  or to “ accomplish or prevent 
conception,”  Carey v. Population Servs. Int’l, 431 U.S. 
678, 685 (1977), that conclusion would not end the 
inquiry. The Court’s decisions make clear that a State 
can limit or even forbid conduct that is otherwise entitled 
to constitutional protection if the State acts precisely to 
vindicate a compelling interest. See, e.g., Haig v. Agee, 
453 U.S. 280, 308-309 (1981) (the government may re­
voke the passport of a person who wishes to travel in 
order to disclose intelligence operations and the names 
of intelligence personnel); Lee v. Washington, 390 U.S. 
333, 334 (1968) (Black, J., concurring) (the govern­
ment may take threats and tensions from prison racial 
strife into account for the purpose of maintaining se­
curity and order in prison); Near v. Minnesota, 283

limits, the policy question of using capital punishment is one en­
trusted to the political processes in a democratic society.



16

U.S. 697, 716 (1931) (dictum that military needs justify 
a prior restraint on the disclosure of the sailing date of 
troop ships). That principle is as applicable in this con­
text as in any other, because, as Justice Harlan once 
noted, “ [t]he right of privacy most manifestly is not an 
absolute.”  Poe v. Ullman, 367 U.S. 497, 552 (1961) 
(Harlan, J., dissenting). The protection of innocent hu­
man life— in or out of the womb— is certainly the most 
compelling interest that a State can advance. See Illi­
nois V. Gates, 462 U.S. 213, 237 (1983) (“ [t]he most 
basic function of any government” is “ to provide for 
the security of the individual and of his property” ) 
(quoting Miranda V. Arizona, 384 U.S. 436, 539 (1966) 
(White, J., dissenting)). In our view, a State’s interest 
in protecting fetal life throughout pregnancy, as a gen­
eral matter, outweighs a woman’s liberty interest in an 
abortion. The State’s interest in prenatal life is a wholly 
legitimate and entirely adequate basis for restricting the 
right to abortion derived in Roe.

Central to Roe was the conclusion that the State lacks 
a compelling interest in preserving fetal life throughout 
pregnancy. Roe noted that a woman’s right to terminate 
a fetus “ is not unqualified and must be considered against 
important state interests” in “ safeguarding health, in 
maintaining medical standards, and in protecting po­
tential life.” 410 U.S. at 154. But Roe stated that the 
weight of those interests is not uniform from conception 
to birth; instead, they “ grow[] in substantiality as the 
woman approaches term.”  Id. at 162-163. Particularly 
critical in this regard was Roe’s conclusion that a State’s 
“ important and legitimate interest in potential life” is 
not “ compelling,” i.e., sufficiently weighty to overcome 
the fundamental right to abortion, until the fetus has 
reached viability, since only then is the fetus capable of 
“ meaningful life outside the mother’s womb.” Id. at 163.

The proposition that a State’s interest in protecting 
life in the womb is compelling only at viability “ seems 
to mistake a definition for a syllogism.”  Ely, The Wages



17

of Crying Wolf: A Comment on Roe v. Wade, 82 Yale 
L.J. 920, 924 (1973).12 “ The choice of viability as the 
point at which the state interest in potential life becomes 
compelling is no less arbitrary than choosing any point 
before viability or any point afterward.”  Akron I, 462 
U.S. at 461 (O’Connor, J., dissenting). Even if the 
importance of a State’s interest in protecting the fetus 
parallels the fetus’s development, it does not follow that 
the State’s interest in this regard is not compelling 
throughout a pregnancy. An interest may be sufficiently 
weighty to be “compelling” in the constitutional sense 
even if it later assumes still greater urgency. Accord­
ingly, since “potential life is no less potential in the first 
weeks of pregnancy than it is at viability or afterward,” 
Akron I, 462 U.S. at 461 (O’Connor, J., dissenting), the 
State’s interest in protecting prenatal life “ if compelling 
after viability, is equally compelling before viability,” 
Webster, 492 U.S. at 519 (plurality opinion); Thorn­
burgh, 476 U.S. at 828 (O’Connor, J., dissenting).

Roe itself recognized that laws infringing on a funda­
mental right are not automatically invalid; they survive 
strict scrutiny if they are “narrowly drawn to express 
only the legitimate state interests at stake.”  410 U.S. 
at 155. Accordingly, because the State’s interest in pro­
tecting prenatal life is compelling throughout pregnancy,

12 See J. Mohr, supra, at 165 (“ Most [19th century] physicians 
considered abortion a crime because of the inherent difficulties of 
determining any point at which a steadily developing embryo be­
came somehow more alive than it had been the moment before. 
Furthermore, they objected strongly to snuffing out life in the 
making.” ) ; see also id. at 35-36, 200; L. Tribe, American Con­
stitutional Lau; 1349 (2d ed. 1988) ( “nothing in [Roe] provides a 
satisfactory explanation of why the fetal interest should not be 
deemed overriding prior to viability, particularly when a legisla­
tive majority chooses to regard the fetus as a human being from 
the moment of conception and perhaps even when it does not” ) 
(footnotes omitted).



18

we believe that regulations furthering that interest are 
lawful throughout pregnancy.13

13 Petitioners may even agree with us to some extent. The Act 
prohibits pre-viability abortions based on the sex of the fetus. 
18 Pa. Cons. Stat. Ann. § 3204(c) (Purdon Supp. 1991). While 
petitioners ask the Court to reaffirm Roe, which bars a State from 
outlawing previability abortions, petitioners did not contend in the 
courts below, and they do not argue in this Court, that this pro­
vision is unconstitutional. It is not difficult to understand why. 
The prospect that a woman would terminate life in the womb 
merely because it is a boy or a girl surely should be so utterly 
odious to every member of “ a free, egalitarian, and democratic 
society” like ours, Thornburgh, 476 U.S. at 793 (White, J., dis­
senting), that any such abortion would be properly subject to 
universal condemnation. At the very least, no one could seriously 
claim that the Constitution offers the remotest protection for 
such a macabre act. Yet, i f  a State has a compelling interest in 
forbidding gender-selection abortions, the Roe trimester frame­
work cannot survive intact. And if the State has a compelling 
interest in prohibiting abortions for that reason, it may fairly 
be asked why the State lacks a similar compelling interest in out­
lawing abortions for other reasons. A State which believes that a 
child in the womb should not be destroyed simply because it is a 
boy or a girl should also be free to protect that life if it is the 
second (or third, etc.) child to be born, or if the pregnancy oc­
curred despite the use of contraceptives.

Petitioners contend that “ the right to abortion may be grounded” 
in constitutional rights other than due process. Pet. Br. 19 n.27. 
In our view, those claims are meritless. Indeed, the ceaseless quest 
for a textual basis for the constitutional right to abortion only 
underscores the lack of any such support. See, e.g., Harris v. Mc­
Rae, 448 U.S. at 319-320 (rejecting Establishment Clause challenge 
to Hyde Amendment) ; Bowen v. Kendrick, 487 U.S. 589 (1988) 
(same, Public Health Service Act (the Adolescent Family Life Act 
of 1981), 42 U.S.C. 300z et seq.) ; Employment Division, Dep’t of 
Human Resources v. Smith, 494 U.S. 872, 879-890 (1990) (Free 
Exercise Clause does not invalidate neutral laws directed at secular 
subjects; rejecting Free Exercise challenge to statute banning drug 
use) ; Reynolds v. United States, 98 U.S. 145 (1879) (same, laws 
banning polygamy); Prince v. Massachusetts, 321 U.S. 158 (1944) 
(same, law banning child labor, as applied to distribution o f reli­
gious pamphlets); Jehovah’s Witnesses v. King County Hasp., 390 
U.S. 598 (1968), aff’g 278 F. Supp. 488 (W.D. Wash. 1967) (up­
holding life-saving transfusion for a minor child over parents’



19
II. THE PENNSYLVANIA ABORTION CONTROL ACT 

IS REASONABLY DESIGNED TO ADVANCE LE­
GITIMATE STATE INTERESTS

Petitioners claim that the Act is unconstitutional under 
any standard of review. Pet. Br. 40-61. In so arguing, 
petitioners and amici (e.g., ACOG Br. 17-20; American 
Psychological Ass’n B r.; City of New York et al. B r.; 
NAACP Legal Defense and Educ. Fund et al. B r.; Penn­
sylvania Coalition Against Domestic Violence et al. Br.) 
rely heavily on the burden that could befall some women 
from provisions such as the spousal notification require­
ment. Yet, as the court of appeals noted, petitioners 
brought a facial constitutional challenge to the statute, 
not an as-applied challenge. Pet. App. 5a, 41a. Thus, 
the governing legal standard is exacting: Petitioners 
must prove that the statute cannot be constitutionally 
applied to anyone. See, e.g., Ohio v. Akron Center for 
Reproductive Health, 110 S. Ct. 2972, 2980-2981 (1990)
(Akron II ) ; United States v. Salerno, 481 U.S. 739, 745 
(1987); Webster, 492 U.S. at 524 (O’Connor, J., con­
curring). This they cannot do.14

Informed consent. Under the Pennsylvania statute, a 
woman must be given medical and other information by a 
physician or his agent, and she must wait 24 hours before 
consenting to an abortion.15 Those provisions are valid.

Free Exercise claim; relying on Prince) ; United, States v. Kozmin- 
ski, 487 U.S. 931, 944 (1988) (Thirteenth Amendment does not 
apply to established common law cases, such as parents’ right to 
custody of their children) ; U.S. Brief in Bray v. Alexandria 
Women’s Health Clinic, No. 90-985 (opposition to abortion is not 
gender discrimination) (a copy has been supplied to the parties’ 
counsel) ; see generally Bopp, Will There Be a Constitutional Right 
to Abortion A fter the Reconsideration of Roe v. Wade?, 15 J. 
Contemp. L. 131 (1989).

14 The majority in Akron I and Thornburgh struck down statu­
tory requirements similar to those here. The Webster plurality, 
however, explained that many o f the rules adopted in Roe and 
later cases would not be of “constitutional import” once Roe’s 
trimester framework is abandoned. 492 U.S. at 518 n.15.

15 A referring or performing physician must inform a woman 
about (i) the nature of the procedure and risks and alternatives



20

The State has a legitimate interest in ensuring that a 
woman’s decision to have an abortion is an informed one. 
Thornburgh, 476 U.S. at 760; Akron I, 462 U.S. at 443; 
Planned Parenthood v. Danforth, 428 U.S. 52, 67 (1976).16 
Accurate information about the abortion procedure and 
its risks and alternatives is related to maternal health 
and a State’s legitimate purpose in requiring informed 
consent. Akron I, 462 U.S. at 446. An accurate descrip­
tion of the gestational age of the fetus and the risks 
involved in carrying a child to term furthers those 
interests and the State’s concern for potential life. See 
Thornburgh, 476 U.S. at 798-804 (White, J., dissenting); 
id. at 830-831 (O’Connor, J., dissenting).17 Likewise, the 
State’s interest in preserving potential life is rationally 
served by informing women that medical assistance ben­
efits and paternal child support may be obtainable, and 
by making available accurate information about the

that a reasonable patient would find material; (ii) the fetus’s prob­
able gestational age; and (iii) the medical risks involved in carry­
ing a pregnancy to term. 18 Pa. Cons. Stat. Ann. § 3205(a)(1) 
(Purdon Supp. 1991). A physician or a qualified agent also must 
tell a woman that (i) medical assistance benefits may be available 
for prenatal, childbirth, and neonatal care; (ii) the child’s father 
is liable for child support; and (iii) the state health department 
publishes free materials describing the fetus at different stages 
and listing abortion alternatives. Id. §3205 (a) (2) (Purdon 1983 
& Supp. 1991). A 24-hour waiting period follows.

16 At common law and today, a physician must obtain patients’ 
consent to the contemplated scope of an operation without mislead­
ing them about its nature or probable consequences, and must in­
form patients about the risks posed by available alternative treat­
ments. See, e.g., Cruzan, 110 S. Ct. at 2846-2847; Slater v. Baker, 
2 Wils. 359, 95 Eng. Rep. 860 (K.B. 1767) ; 3 F. Harper, F. James, 
Jr. & O. Gray, supra, § 17.1.

17 Petitioners’ claim that non-physician counselors can provide 
the same information is beside the point. As the court of appeals 
observed, it was reasonable for the State to conclude that disclosure 
by physicians will be more effective than delegation o f that task 
to others. Pet. App. 47a-48a.



21
process of fetal growth and alternatives to abortion. Id. 
at 831 (O’Connor, J., dissenting).

The fact that some information may be of little or no 
use to some recipients, Pet. App. 177a-180a, does not 
cast doubt on the validity of the Act. Where, as here, no 
fundamental right is at stake, government may regulate 
conduct in an overinclusive manner, as long as it does 
so rationally. Vance v. Bradley, 440 U.S. 93, 108 (1979). 
A State’s belief that its interests are better served with 
an informed consent provision than without one is, in 
our view, entirely rational.

It is no argument that the disclosure of accurate in­
formation might persuade some women not to have an 
abortion. Encouraging childbirth is a legitimate gov­
ernmental objective. Harris v. McRae, 448 U.S. 297, 322- 
323 (1980); Maher V. Roe, 432 U.S. 464, 478-479 (1977). 
Roe did not purport to impress on the Constitution the 
proposition that abortion is a public good. Thornburgh, 
476 U.S. at 797 (White, J., dissenting). Instead, Roe 
professed agnosticism on the question when life begins 
and declined to debate the morality of abortion. 410 U.S. 
at 116-117, 159-162. Thus, the fact that the informed 
consent provision may dissuade some women from having 
an abortion does not undermine its validity.18

Lastly, the Act’s 24-hour waiting period readily passes 
muster. A waiting period provides time for reflection 
and reconsideration, furthering a State’s interests in in­
formed consent and protecting fetal life. A mandatory

18 Nor do the informed consent provisions violate the First 
Amendment rights of physicians or counselors. States are free to 
require professionals to include accurate and reasonably material 
information in their commercial speech directed toward prospec­
tive clients. Zauderer v. Office of Disciplinary Counsel, 471 U.S. 
626, 650-651 (1985). Truthful and relevant information about 
risks, alternatives, and medical and financial facts is not the kind 
of “prescribe [d] * * * orthodox [y] in politics, nationalism, reli­
gion, or other matters of opinion” that violates the First Amend­
ment’s protection o f commercial speech. Id. at 651; cf. Riley v. 
National Fed’n of the Blind, 487 U.S. 781, 796 n.9 (1988).



22
waiting period burdens women seeking abortions, but the 
State is constitutionally at liberty to weigh the com­
peting concerns and to strike what it sees as an appropri­
ate balance. The abortion decision, once implemented, 
is an irrevocable one, and the unique psychological con­
sequences of that singular act will remain with a woman 
(and her spouse or partner) throughout their lives. What­
ever the wisdom of the State’s decision, it is clearly a 
rational one. See Harris v. McRae, 448 U.S. at 326.

Informed parental consent. An unemancipated or in­
competent minor must give her informed consent and 
obtain that of a parent or guardian before she can 
obtain an abortion. 18 Pa. Cons. Stat. Ann. § 3206(a) 
(Purdon 1983 & Supp. 1991).19 Alternatively, a minor 
can obtain an abortion if a state court finds that she 
is mature, is capable of giving informed consent, and 
gives such consent, or that an abortion is in her best 
interests. Id. § 3206(c) and (d) (Purdon 1983); see 
id. § 3206(e)-(h) (Purdon 1983 & Supp. 1991) (bypass 
procedures). Those provisions are valid, too.

In our view, a minor has no fundamental right to an 
abortion without parental consent.20 In addition, a State 
has a strong and legitimate interest in involving par­
ents in matters affecting their children’s well-being, in­
cluding abortion. See, e.g., Hodgson, 110 S. Ct. at 2948 
(opinion of Stevens, J . ) ; id. at 2950-2951 (opinion of

19 Consent of the child’s guardian (s) is sufficient if both parents 
are dead or otherwise unavailable to the physician in a reasonable 
time and manner. Consent of a custodial parent is sufficient if the 
child’s parents are divorced. Consent of an adult standing in loco 
parentis is sufficient if neither a parent nor a guardian is available 
to the physician in a reasonable time and manner. 18 Pa. Cons. 
Stat. Ann. § 3206(b) (Purdon 1983). In the case of pregnancy due 
to incest by the child’s father, the minor need obtain consent only 
from her mother. 18 Pa. Cons. Stat. Ann. § 3206(a) (Purdon 
1983 & Supp. 1991).

20 Our position in this regard is set forth in our amicus brief in 
Hodgson V. Minnesota, Nos. 88-1125 & 88-1309, a copy of which has 
been provided to the parties’ counsel.



23
O’Connor, J .) ;  id. at 2970 (opinion of Kennedy, J.). 
Parental consent laws reasonably advance that interest. 
Furthermore, if the informed consent provision is valid, 
the informed parental consent provision is valid, too. A 
State has a keener interest in protecting minors than 
adults against their improvement choices.

Spousal notification. The Act adopts a spousal notifi­
cation requirement in order “ to further the Common­
wealth’s interest in promoting the integrity of the marital 
relationship,”  in “protect [ing] a spouse’s interests in 
having children within marriage,”  and in “ protecting the 
prenatal life of that spouse’s child,” 18 Pa. Cons. Stat. 
Ann. § 3209(a) (Purdon Supp. 1991). With certain 
exceptions, a woman must give the physician a signed 
statement, under penalty for making a false statement, 
that she has notified her spouse that she will undergo an 
abortion. Ibid.21 This notification requirement readily 
survives facial challenge, because it is reasonably de­
signed to further a number of legitimate state interests.22 *

First, spousal notification is reasonably designed to ad­
vance a State’s legitimate interest in protecting the fetus.

21 A woman need not provide the statement if her spouse is not 
the child’s father; if he could not be located after a diligent 
search; if the pregnancy is the result of a spousal sexual assault 
that has been reported to the authorities; or i f  she has reason to 
believe that notifying her spouse will lead her to suffer bodily in­
jury by him or someone else. Id. § 3209(b) (Purdon Supp. 1991).

22 Pennsylvania is not alone in recognizing and protecting the
husband’s interest in the life of his unborn child. Before and during 
the 19th century, when abortion was strictly regulated and gen­
erally prohibited by state law, there was no need for special pro­
tection of the father’s interests. See Poe V. Gerstein, 517 F.2d 
787, 795 (5th Cir. 1975), aff’d, 428 U.S. 901 (1976). By the time 
of Roe, some States had liberalized their abortion laws, and many 
o f the new laws acknowledged and protected the father’s role in 
the abortion decision. Doe v. Doe, 365 Mass. 556, 561 & nn.3-5, 314 
N.E.2d 128, 131 & nn.3-5 (1974) (citing statutes of 15 States re­
quiring husband’s consent for abortions under some or all circum­
stances). A number of spousal consent and notification laws are 
currently on the books. See, e.g., Colo. Rev. Stat. Ann. § 18-6- 
101(1) (West 1986) (spousal consent).



24
The husband sometimes will oppose a proposed abortion. 
After being notified, he may persuade his spouse to recon­
sider her decision, thus achieving the State’s interest. 
Cf. Pet. App. 255a-256a.

Second, a husband’s interests in procreation within 
marriage and in the potential life of his unborn child 
are unquestionably legitimate and substantial ones.23 It 
can hardly be gainsaid that the State acts legitimately in 
seeking to protect such parental and familial interests. 
See Michael H., 491 U.S. at 128-129 (opinion of Scalia, 
J.) (husband’s opportunity “ to develop a relationship 
with”  the offspring of the marital community may be pro­
tected by the State) (quoting Lehr v. Robertson, 463 U.S. 
248, 262 (1983 )); Labine v. Vincent, 401 U.S. 532, 538 
(1971). The spousal notification requirement is certainly 
a reasonable means of advancing that state interest. By 
providing that, absent unusual circumstances, a husband 
will know of his spouse’s intent to have an abortion, the 
notification requirement ensures at least the possibility 
that the husband will participate in deciding the fate of 
his unborn child, a possibility that might otherwise have 
been denied him. The husband’s participation, in turn, 
may lead his spouse to reconsider her options or to re­
think a hasty decision.24 As Judge Alito noted in dissent

23 See Danforth, 428 U.S. at 69; id. at 93 (White, J., dissenting 
in part) ; Skinner V. Oklahoma, 316 U.S. 535, 541 (1942). Dan­
forth held that a State could not condition a woman’s access to an 
abortion on the consent of her spouse, but that conclusion rested 
on the flawed premise that “ the State cannot regulate or proscribe 
abortion during the first stage” of pregnancy. 428 U.S. at 69. A 
spousal notification requirement also impinges far less severely on 
a woman’s ability to have an abortion than does a spousal consent 
requirement. See Akron II, 110 S. Ct. at 2979.

24 No doubt most wives would consult with their husbands even 
absent a statutory notice requirement. Pet. App. 193a. Nonethe­
less, the Act will likely increase the number of such consultations. 
Many women who otherwise might choose not to tell their spouses of 
their decision, for reasons of convenience, haste, or concern about 
disagreement, will be inclined to comply because of the legislative 
mandate.



25

below, the state legislature “ could have rationally believed 
that some married women are initially inclined to obtain 
an abortion without their husbands’ knowledge because of 
perceived problems— such as economic constraints, future 
plans, or the husbands’ previously expressed opposition—  
that may be obviated by discussion prior to the abortion.” 
Pet. App. 102a.

Finally, and for essentially the same reasons, the 
State’s interest in “ promoting the integrity of the mari­
tal relationship,”  18 Pa. Cons. Stat. Ann. § 3209(a) 
(Purdon Supp. 1991), is reasonably furthered by the 
spousal notice requirement. That interest is legitimate, 
Akron I, 462 U.S. at 443 n.32, and is properly encom­
passed by the State’s traditional power to regulate mar­
riage and strengthen family life, see Sosna v. Iowa, 419 
U.S. 393, 404 (1975); Labine, 401 U.S. at 538. Petition­
ers’ claim, Pet. Br. 43-44, and the district court’s ruling, 
Pet. App. 261a-262a, that the notification requirement 
does not fui’ther the State’s interest misses the point. 
The interest that Pennsylvania has chosen to foster is 
marital integrity, not “ [mjarital accord,” Pet. App. 262a. 
A  State may legitimately elect to ensure truthful marital 
communication concerning a crucial issue such as abor­
tion, despite the possibility that marital discord may re­
sult in some instances. See Scheinberg v. Smith, 659 F.2d 
476, 484-486 & n.4 (5th Cir. 1981).

Petitioners make much of the possibility that some 
women may be deterred from obtaining an abortion if 
they must notify their spouses. Pet. Br. 41-43. But the 
State could reasonably have concluded that the statutory 
exceptions for women who reasonably fear bodily injury 
and for pregnancies resulting from spousal assault would 
eliminate the principal bases for that concern. The pos­
sibility that some women may not take advantage of the 
exceptions, or may fear other consequences of notification, 
does not affect the facial validity of the statute. See 
Hodgson, 110 S. Ct. at 2968 (opinion of Kennedy, J.) 
( “ Laws are not declared unconstitutional because of some 
general reluctance to follow a statutory scheme the legis-



26

lature finds necessary to accomplish a legitimate state 
objective.” ). The State weighed the complex social and 
moral considerations involved and found such concerns 
insufficient to overcome the countervailing factors. The 
wisdom of such a clearly rational decision is not for the 
courts to judge. See Harris v. McRae, 448 U.S. at 32G.25

Medical emergency. A “medical emergency” is an ex­
ception to the above requirements of the Act.26 Petition­
ers argued below that the statutory definition of medical 
emergency was inadequate since it did not include three 
serious conditions that pregnant women can suffer (pre- 
clampsia, inevitable abortion, and prematurely ruptured 
membrane). The district court ruled that the definition 
did not include those conditions, Pet. App. 237a, but the 
court of appeals disagreed, Pet. App. 41a, relying on the 
“well-accepted canon [] of statutory interpretation used 
in the [state] courts,” Webster, 492 U.S. at 515 (plural-

25 Petitioners argue that the spousal notification requirement 
violates the Equal Protection Clause and impermissibly intrudes 
on “ the protected marital relationship.” Pet. Br. 44-48. In our 
view, neither claim has merit. Women who want an abortion are 
not a “ suspect”  or “ quasi-suspect” class deserving of heightened 
scrutiny under the Equal Protection Clause. See Harris V. McRae, 
448 U.S. at 323; Maher v. Roe, 432 U.S. at 470-471; cf. Geduldig V. 
Aiello, 417 U.S. 484, 496-497 n.20 (1974). Likewise no generalized 
right of marital privacy is infringed by the spousal notification 
requirement. If the State may— indeed must, see Kirchberg v. 
Feenstra, 450 U.S. 455 (1981)— require the participation of both 
spouses in the disposition of marital property, surely it may re­
quire that they both be aware of the far more important decision 
to terminate a pregnancy.

2<! A “ medical emergency”  is defined as “ [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 neces­
sitate the immediate abortion of her pregnancy to avert her death 
or for which a delay will create serious risk o f substantial and ir­
reversible impairment of major bodily function.”  18 Pa. Cons. Stat. 
Ann. § 3203 (Purdon Supp. 1991).



27

ity opinion), that a statute should be read to preserve its 
constitutionality and on the fact that petitioners chal­
lenged the Act on its face. Pet. App. 37a, 41a.2T

Petitioners do not argue that the Act cannot be read 
that way. Instead, they criticize the Third Circuit for 
reading the Act too narrowly, as protecting women only 
from “ significant”  health risks. Pet. Br. 60-61. Due 
process, however, does not require the State to avoid 
placing insignificant health risks on individuals for the 
public benefit. This Court in Jacobson v. Massachusetts 
upheld a compulsory smallpox vaccination even though 
the vaccine had a statistical possibility of causing serious 
illness or death. In this case, the State has a compelling 
interest in protecting the fetus, which “ justifies] sub­
stantial and ordinarily impermissible impositions on the 
individual,” including “ the infliction of some degree of 
risk of physical harm.” Thornburgh, 476 U.S. at 808- 
809 (White, J., dissenting).

Reporting requirements. Facilities performing abor­
tions have various reporting obligations.27 28 The require-

27 The State also reads the definition to include all three condi­
tions. See Appellants C.A. Br. 5-7, 23-25. A state attorney gen­
eral’s interpretation of a state law is not binding on the state 
courts, Virginia V. American Booksellers Ass’n, 484 U.S. 383, 397 
(1988), but may be useful in construing state law, cf. Minnesota 

V. Probate Court, 309 U.S. 270, 273-274 (1940) (relying on the 
state attorney general’s reading of the state supreme court’s 
opinion).

28 Each facility must file a report with its name and address and 
that of any affiliated enterprise. Such information is public if a 
facility received state funds during the past calendar year; other­
wise, the information is available only to state law enforcement 
officials or state medical boards. 18 Pa. Cons. Stat. Ann. § 3207 
(Purdon 1983 & Supp. 1991). To “promot[e] * * * maternal 
health and life by adding to the sum of medical and public health 
knowledge through the compilation of relevant data, and to pro­
mote the Commonwealth’s interest in protection of the unborn 
child,”  id. § 3214(a) (Purdon Supp. 1991), each facility must file a 
report on each abortion. The reports do not identify patients by 
name, but they do include other types of information. Id. §3214



28

ment that facilities provide confidential reports concern­
ing the identities and medical judgments of physicians 
involved in abortions is valid given the State’s legitimate 
interests in maternal health and enforcement of the Act. 
See Thornburgh, 476 U.S. at 804 (White, J., dissenting). 
The other information can be required under Danforth, 
428 U.S. at 79-81, and furthers the same interests. See 
Planned Parenthood Ass’n v. Ashcroft, 462 U.S. 476, 
486-490 (1983) (opinion of Powell, J . ) ; id. at 505 (opin­
ion of O’Connor, J.) (upholding compulsory pathology 
reports). Public disclosure of the number of abortions 
performed by facilities receiving public funds directly 
furthers the valid goal of increasing the public’s knowl­
edge as to how, and by whom, public money is spent. See 
Wyman v. Jaynes, 400 U.S. 309, 319 (1971); Pet. App. 
83a.29

(Purdon Supp. 1991). A facility also must file a quarterly report 
stating the number of abortions performed for each trimester of 
pregnancy. Here, too, the reports are public only if the facility 
received state funds during the year prior to the filing of the 
report. Id. § 3214(a) (Purdon Supp. 1991).

29 Petitioners’ speculative concerns that these requirements may 
deter some facilities and physicians from performing abortions 
and may lead to harassment of abortion clinics, Pet. Br. 58, do not 
undermine the facial validity o f the Act. The State’s decision to 
require the reports was a rational one; the Constitution requires 
no more.



29

CONCLUSION

The judgment of the court of appeals in No. 91-744 
should be affirmed and in No. 91-902 should be reversed.

Respectfully submitted.

Ke n n e th  W . Starr 
Solicitor General

Stuart M. Gerson 
Assistant Attorney General

P aul  J. La r k in , Jr .
Assistant to the Solicitor General

T hom as G. H ungar 
Assistant to the Solicitor General

A lfred R. Mollin  
Attorney

April  1992

☆  U. S. GOVERNMENT PRINTING OFFICE; 1 9 9 2 3 1 2 3 2 4  4 5 3 8 7