Supreme Court decision
By: Lewis F. Powell and Sandra Day O'Connor
Date: June 15, 1983
Source: Powell, Lewis F. and Sandra Day O'Connor. Akron v. Akron Center for Reproductive Health, 462 U.S. 416. Available online at http://laws.findlaw.com/us/462/416.html; website home page: http://laws.findlaw.com (accessed April 18, 2003).
About the Authors: Lewis Powell (1907–1998) graduated from Harvard Law School, became president of the American Bar Association in 1964, and championed legal services for the poor. He was nominated to the U.S. Supreme Court in 1971 and served until 1987, acting as a moderate. Sandra Day O'Connor (1930–) attended Stanford Law School, graduating third in her class. Because of gender bias, no firm would hire her, so she worked as a deputy county attorney. In 1981, she was the first woman appointed to the U.S. Supreme Court.
In the United States, the states began to take more of an interest in the issue of abortion in the nineteenth century, in large part because abortion was risky and became more so when surgery was involved. Abortion, though, when performed in a medical setting, had become a much safer procedure during the twentieth century.
During this time as well, the legal system became much more interested in the rights of the individual. The Supreme Court shifted its focus from economic regulations to individual rights. Louis Brandeis argued for the "right to be let alone" as part of a right to privacy as early as 1928. Later, the Supreme Court built upon this right to overturn a Connecticut ban on the use of contraceptives. The right to privacy was used in 1972 to strike down a Texas law banning abortions in Roe v. Wade. There, Justice Blackmun argued that the right to privacy outweighed any state interest in regulating abortion up to the point of viability; after viability, abortions could be banned. Appropriate medical regulations to safeguard the health of the woman undertaking the abortion could, however, be instituted from the end of the first trimester of pregnancy.
This decision provoked a firestorm of controversy, and many candidates for public office argued for constitutional amendments that would overturn Roe v. Wade. Ronald Reagan (served 1981–1989), while running for the presidency, promised to appoint Supreme Court justices who would oppose Roe. The Supreme Court, though, continued to uphold its ruling. Then in 1983, regulations enacted by the city of Akron, Ohio, came before the Court.
The Supreme Court in this case struck down all of Akron's attempts to regulate abortion, including a parental consent requirement, an informed consent requirement, and the requirement that all abortions be performed in a hospital. Three justices dissented, though, including Sandra Day O'Connor, President Reagan's first appointee. Some argued that if Reagan could appoint two more justices, Roe could be overturned. In 1986 and 1987, Reagan appointed Justices Antonin Scalia and Anthony Kennedy—it seemed as if Roe might be overturned.
The question was directly addressed in 1992, in Planned Parenthood of Southeastern Pennsylvania v. Casey. Justice O'Connor led a plurality of three justices, including Kennedy, in an opinion that directly upheld Roe and argued that there was no compelling reason to reexamine the case. The Court did rework Roe, arguing that the key issue was not what trimester of pregnancy one was in but whether the fetus was viable, and that before viability, no legislation was allowed that placed an "undue burden" on a woman seeking an abortion. That decision has largely been upheld since, even though some regulations requiring waiting periods and prohibiting the use of public funds for abortions have been upheld. Those seeking abortions have also been hampered by protesters and by the fact that few doctors and clinics perform abortions in many towns. Even though it has been assailed, Roe still stands.
Primary Source: Akron v. Akron Center for Reproductive Health [excerpt]
SYNOPSIS: Justice Powell first reaffirms the holding of Roe v. Wade. He then argues that any regulation which puts a "significant obstacle" in the way of a woman's right to an abortion, except as allowed in Roe, is unconstitutional. He uses this standard to strike down most of Akron's regulations. Justice O'Connor dissents, arguing for discarding the trimester approach of Roe and suggesting that most of these regulations do not impose an undue burden.
Justice Powell delivered the opinion of the Court.
In this litigation we must decide the constitutionality of several provisions of an ordinance enacted by the city of Akron, Ohio, to regulate the performance of abortions.…
These cases come to us a decade after we held in Roe v. Wade,…that the right of privacy, grounded in the concept of personal liberty guaranteed by the Constitution, encompasses a woman's right to decide whether to terminate her pregnancy. Legislative responses to the Court's decision have required us on several occasions, and again today, to define the limits of a State's authority to regulate the performance of abortions. And arguments continue to be made, in these cases as well, that we erred in interpreting the Constitution. Nonetheless, the doctrine of stare decisis, while perhaps never entirely persuasive on a constitutional question, is a doctrine that demands respect in a society governed by the rule of law. We respect it today, and reaffirm Roe v. Wade. …
We reaffirm today, …that a State's interest in health regulation becomes compelling at approximately the end of the first trimester. The existence of a compelling state interest in health, however, is only the beginning of the inquiry. The State's regulation may be upheld only if it is reasonably designed to further that state interest.… And the Court in Roe did not hold that it always is reasonable for a State to adopt an abortion regulation that applies to the entire second trimester. A State necessarily must have latitude in adopting regulations of general applicability in this sensitive area. But if it appears that during a substantial portion of the second trimester the State's regulation "depart[s] from accepted medical practice," …the regulation may not be upheld simply because it may be reasonable for the remaining portion of the trimester. Rather, the State is obligated to make a reasonable effort to limit the effect of its regulations to the period in the trimester during which its health interest will be furthered.
There can be no doubt that 1870.03's second-trimester hospitalization requirement places a significant obstacle in the path of women seeking an abortion. A primary burden created by the requirement is additional cost to the woman.… Thus, a second-trimester hospitalization requirement may force women to travel to find available facilities, resulting in both financial expense and additional health risk. It therefore is apparent that a second-trimester hospitalization requirement may significantly limit a woman's ability to obtain an abortion.
Akron does not contend that 1870.03 imposes only an insignificant burden on women's access to abortion, but rather defends it as a reasonable health regulation. This position had strong support at the time of Roe v. Wade, …Since then, however, the safety of second-trimester abortions has increased dramatically.…
These developments, and the professional commentary supporting them, constitute impressive evidence that—at least during the early weeks of the second trimester—D & E abortions may be performed as safely in an outpatient clinic as in a full-service hospital. We conclude, therefore, that "present medical knowledge," …convincingly under-cuts Akron's justification for requiring that all second-trimester abortions be performed in a hospital.
…By preventing the performance of D & E abortions in an appropriate nonhospital setting, Akron has imposed a heavy, and unnecessary, burden on women's access to a relatively inexpensive, otherwise accessible, and safe abortion procedure. Section 1870.03 has "the effect of inhibiting …the vast majority of abortions after the first 12 weeks," …and therefore unreasonably infringes upon a woman's constitutional right to obtain an abortion.…
In these circumstances, we do not think that the Akron ordinance, as applied in Ohio juvenile proceedings, is reasonably susceptible of being construed to create an "opportunity for case-by-case evaluations of the maturity of pregnant minors." …We therefore affirm the Court of Appeals' judgment that 1870.05(B) is unconstitutional. The Akron ordinance provides that no abortion shall be performed except "with the informed written consent of the pregnant woman, …given freely and without coercion." 1870.06(A). Furthermore, "in order to insure that the consent for an abortion is truly informed consent," the woman must be "orally informed by her attending physician" of the status of her pregnancy, the development of her fetus, the date of possible viability, the physical and emotional complications that may result from an abortion, and the availability of agencies to provide her with assistance and information with respect to birth control, adoption, and childbirth. 1870.06(B). In addition, the attending physician must inform her "of the particular risks associated with her own pregnancy and the abortion technique to be employed …[and] other information which in his own medical judgment is relevant to her decision as to whether to have an abortion or carry her pregnancy to term." 1870.06(C).…Viewing the city's regulations in this light, we believe that 1870.06(B) attempts to extend the State's interest in ensuring "informed consent" beyond permissible limits. First, it is fair to say that much of the information required is designed not to inform the woman's consent but rather to persuade her to withhold it altogether. Subsection (3) requires the physician to inform his patient that "the unborn child is a human life from the moment of conception," a requirement inconsistent with the Court's holding in Roe v. Wade that a State may not adopt one theory of when life begins to justify its regulation of abortions.… Moreover, much of the detailed description of "the anatomical and physiological characteristics of the particular unborn child" required by subsection (3) would involve at best speculation by the physician. And subsection (5), that begins with the dubious statement that "abortion is a major surgical procedure" and proceeds to describe numerous possible physical and psychological complications of abortion, is a "parade of horribles" intended to suggest that abortion is a particularly dangerous procedure.…
We are not convinced, however, that there is as vital a state need for insisting that the physician performing the abortion, or for that matter any physician, personally counsel the patient in the absence of a request. The State's interest is in ensuring that the woman's consent is informed and unpressured; the critical factor is whether she obtains the necessary information and counseling from a qualified person, not the identity of the person from whom she obtains it. Akron and intervenors strongly urge that the non-physician counselors at the plaintiff abortion clinics are not trained or qualified to perform this important function. The courts below made no such findings, however, and on the record before us we cannot say that the woman's consent to the abortion will not be informed if a physician delegates the counseling task to another qualified individual.…
We find that Akron has failed to demonstrate that any legitimate state interest is furthered by an arbitrary and inflexible waiting period. There is no evidence suggesting that the abortion procedure will be performed more safely. Nor are we convinced that the State's legitimate concern that the woman's decision be informed is reasonably served by requiring a 24-hour delay as a matter of course. The decision whether to proceed with an abortion is one as to which it is important to "affor[d] the physician adequate discretion in the exercise of his medical judgment." …In accordance with the ethical standards of the profession, a physician will advise the patient to defer the abortion when he thinks this will be beneficial to her. But if a woman, after appropriate counseling, is prepared to give her written informed consent and proceed with the abortion, a State may not demand that she delay the effectuation of that decision.
Section 1870.16 of the Akron ordinance requires physicians performing abortions to "insure that the remains of the unborn child are disposed of in a humane and sanitary manner." The Court of Appeals found that the word "humane" was impermissibly vague as a definition of conduct subject to criminal prosecution. The court invalidated the entire provision, declining to sever the word "humane" in order to uphold the requirement that disposal be "sanitary …We affirm this judgment.…
We affirm the judgment of the Court of Appeals invalidating those sections of Akron's "Regulations of Abortions" ordinance that deal with parental consent, informed consent, a 24-hour waiting period, and the disposal of fetal remains. The remaining portion of the judgment, sustaining Akron's requirement that all second-trimester abortions be performed in a hospital, is reversed.…
Justice O'Connor, with whom Justice White and Justice Rehnquist join, dissenting.
…Nonetheless, it is apparent from the Court's opinion that neither sound constitutional theory nor our need to decide cases based on the application of neutral principles can accommodate an analytical framework that varies according to the "stages" of pregnancy, where those stages, and their concomitant standards of review, differ according to the level of medical technology available when a particular challenge to state regulation occurs. The Court's analysis of the Akron regulations is inconsistent both with the methods of analysis employed in previous cases dealing with abortion, and with the Court's approach to fundamental rights in other areas.…
The trimester or "three-stage" approach adopted by the Court in Roe, and, in a modified form, employed by the Court to analyze the regulations in these cases, cannot be supported as a legitimate or useful framework for accommodating the woman's right and the State's interests. The decision of the Court today graphically illustrates why the trimester approach is a completely unworkable method of accommodating the conflicting personal rights and compelling state interests that are involved in the abortion context.…
The Court adheres to the Roe framework because the doctrine of stare decisis "demands respect in a society governed by the rule of law." Ante, at 420. Although respect for stare decisis cannot be challenged, "this Court's considered practice [is] not to apply stare decisis as rigidly in constitutional as in nonconstitutional cases." …Although we must be mindful of the "desirability of continuity of decision in constitutional questions …when convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment and not upon legislative action this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions.". . .
Even assuming that there is a fundamental right to terminate pregnancy in some situations, there is no justification in law or logic for the trimester framework adopted in Roe and employed by the Court today on the basis of stare decisis. For the reasons stated above, that framework is clearly an unworkable means of balancing the fundamental right and the compelling state interests that are indisputably implicated.…
The fallacy inherent in the Roe framework is apparent: just because the State has a compelling interest in ensuring maternal safety once an abortion may be more dangerous than childbirth, it simply does not follow that the State has no interest before that point that justifies state regulation to ensure that first-trimester abortions are performed as safely as possible.
The state interest in potential human life is likewise extant throughout pregnancy. In Roe, the Court held that although the State had an important and legitimate interest in protecting potential life, that interest could not become compelling until the point at which the fetus was viable. The difficulty with this analysis is clear: potential life is no less potential in the first weeks of pregnancy than it is at viability or afterward. At any stage in pregnancy, there is the potential for human life. Although the Court refused to "resolve the difficult question of when life begins," …the Court chose the point of viability—when the fetus is capable of life independent of its mother—to permit the complete proscription of abortion. The choice of viability as the point at which the state interest in potential life becomes compelling is no less arbitrary than choosing any point before viability or any point afterward. Accordingly, I believe that the State's interest in protecting potential human life exists throughout the pregnancy.…
In determining whether the State imposes an "undue burden," we must keep in mind that when we are concerned with extremely sensitive issues, such as the one involved here, "the appropriate forum for their resolution in a democracy is the legislature. We should not forget that 'legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.' …This does not mean that in determining whether a regulation imposes an "undue burden" on the Roe right we defer to the judgments made by state legislatures. "The point is, rather, that when we face a complex problem with many hard questions and few easy answers we do well to pay careful attention to how the other branches of Government have addressed the same problem.". . .
We must always be mindful that "[t]he Constitution does not compel a state to fine-tune its statutes so as to encourage or facilitate abortions. To the contrary, state action 'encouraging childbirth except in the most urgent circumstances' is 'rationally related to the legitimate governmental objective of protecting potential life.'. . .
Section 1870.03 of the Akron ordinance requires that second-trimester abortions be performed in hospitals.…
For the reasons stated above, I find no justification for the trimester approach used by the Court to analyze this restriction. I would apply the "unduly burdensome" test and find that the hospitalization requirement does not impose an undue burden on that decision.…
Section 1870.07 of the Akron ordinance requires a 24-hour waiting period between the signing of a consent form and the actual performance of the abortion, except in cases of emergency.…
Assuming, arguendo, that any additional costs are such as to impose an undue burden on the abortion decision, the State's compelling interests in maternal physical and mental health and protection of fetal life clearly justify the waiting period. As we acknowledged in Danforth. . . , the decision to abort is "a stressful one," and the waiting period reasonably relates to the State's interest in ensuring that a woman does not make this serious decision in undue haste. The decision also has grave consequences for the fetus, whose life the State has a compelling interest to protect and preserve. "[N]o other [medical] procedure involves the purposeful termination of a potential life." …The waiting period is surely a small cost to impose to ensure that the woman's decision is well considered in light of its certain and irreparable consequences on fetal life, and the possible effects on her own.
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