Facts—Pennsylvania adopted restrictions on abortions. These required informed consent and a twenty-four-hour waiting period, either the consent of at least one parent or the exercise of a judicial bypass mechanism in cases where minors sought abortions, a requirement that a married woman sign a statement indicating that she had informed her husband of her decision, compliance with all of the above requirements except in cases of “medical emergencies” threatening a woman’s life or health, and record-keeping and reporting provisions. The U.S. District Court struck down all these requirements whereas the U.S. Third Circuit Court of Appeals upheld all but the spousal notification requirement. The Bush administration asked the Supreme Court to overrule Roe v. Wade in this case.

Questions—(a) Are the regulations regarding abortions adopted by Pennsylvania constitutional? (b) Should Roe v. Wade be overturned?

Decisions—(a) Yes, all are constitutional except for the spousal notification decision; (b) No, the central holding of Roe v. Wade should be reaffirmed.

Reasons—J. O’Connor, J. Kennedy, J. Souter (5–4). These three justices, joined in part by J. Blackmun and J. Stevens, affirmed that “the essential holding of Roe v. Wade should be retained and once again reaffirmed.” This holding consisted of the recognition of the woman’s right to have an abortion without “undue interference from the State” prior to viability, the state’s right to restrict abortions after viability, and the recognition of a state’s interest in pregnancy during the entire process. The three justices writing for the Court traced the right of abortion to the “liberty” interest of the Fourteenth Amendment, going back through a long series of privacy precedents. The articulation of this liberty requires the judicial exercise of “reasoned judgment.” The three justices expressed great concern for the doctrine of stare decisis (adherence to precedents). The decision in Roe had not proved to be “unworkable,” but after two decades, it had created a strong “reliance interest” among women who have built careers around their power to control pregnancies. The Court contrasted the decision in Roe v. Wade to those in Lochner v. New York (1905), recognizing economic due process, and Plessy v. Ferguson (1896), providing for racial segregation. Unlike those cases, they did not believe that Roe was based on disproven theories. The Court’s legitimacy depends on appearing principled, and caving in to popular pressure against Roe would undermine the Court’s power. Unlike the central holding, the trimester formula outlined in Roe could be discarded. The three justices instead outlined an “undue burden” test (introduced in a previous case by O’Connor) that did not recognize the right to an abortion as a fundamental absolute right but one in which the state also had an interest. The majority believed the only provision of the Pennsylvania abortion law that created an undue burden was that of spousal notification, citing numerous studies showing that most wives already notify their husbands and arguing that, for others, such notification might lead to either physical or psychological spousal abuse.

J. Stevens agreed with the Court’s emphasis on stare decisis but feared that the state’s interest in abortion was not truly secular in nature. He believed that requiring women to be told certain information or requiring that they wait 24 hours for an abortion did impose an undue burden on them. J. Blackmun (the author of Roe v. Wade), also in partial concurrence and partial dissent, praised the courage of the three authors of the Court’s opinion but would subject all abortion restrictions to strict scrutiny and thought that the regulations at issue were all attempts by the state to conscript “women’s bodies into its service, forcing women to continue their pregnancies, suffer the pains of childbirth, and in most instances, provide years of maternal care.” He defended the trimester formula and faulted the chief justice’s dissent for its “stunted conception of individual liberty.”

C.J. Rehnquist accused the majority of retaining the “outer shell” of Roe but of beating “a wholesale retreat from the substance of that case.” He would overrule Roe, leaving the issue to individual states. He argued that this case did not present a real “reliance interest.” He did not think that the Court should rule with a view toward public opinion and faulted the “undue burden” test as being even less precise than the previous “strict scrutiny” formula. Rehnquist favored upholding all parts of the Pennsylvania law.

J. Scalia’s dissent attempted to answer one-by-one the arguments of the Court for adhering to stare decisis in this case and viewed the plurality opinion as an indication that “The Imperial Judiciary lives.” Like Rehnquist, Scalia believed public opinion was irrelevant to judicial decision-making but believed that the Court’s original decision in Roe v. Wade to declare abortion a guaranteed national liberty, rather than leaving the matter at the state level, had largely led to the unrest that the Court was attempting to ignore.