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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Abortion (2 of 3)
Box: 1
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SUPREME COURT OF THE UNITED STATES
Nos. 81-746 AND 81-1172
CITY OF AKRON, PETITIONER
81-746
v.
AKRON CENTER FOR REPRODUCTIVE HEALTH,
INC., ET AL.
AKRON CENTER FOR REPRODUCTIVE HEALTH,
INC., ET AL., PETITIONERS
81-1172
v.
CITY OF AKRON ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[June 15, 1983]
JUSTICE O'CONNOR, with whom JUSTICE WHITE and JUS-
TICE REHNQUIST join, dissenting.
In Roe V. Wade, 410 U.S. 113 (1973), the Court held that
the "right of privacy
founded in the Fourteenth Amend-
ment's concept of personal liberty and restrictions upon state
action
is broad enough to encompass a woman's decision
whether or not to terminate her pregnancy." Id., at 153.
The parties in these cases have not asked the Court to re-
examine the validity of that holding and the court below did
not address it. Accordingly, the Court does not re-examine
its previous holding. 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
81-746 & 81-1172-DISSENT
2 AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH
stages, and their concomitant standards of review, differ ac-
cording 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.
Our recent cases indicate that a regulation imposed on "a
lawful abortion 'is not unconstitutional unless it unduly bur-
dens the right to seek an abortion." Maher V. Roe, 432 U. S.
464, 473 (1977) (quoting Bellotti V. Baird, 428 U. S. 132, 147
(1977) (Bellotti I)). See also Harris V. McRae, 448 U. S.
297, 314 (1980). In my view, this "unduly burdensome"
standard should be applied to the challenged regulations
throughout the entire pregnancy without reference to the
particular "stage" of pregnancy involved. If the particular
regulation does not. "unduly burden[]" the fundamental right,
Maher, supra, at 473, then our evaluation of that regulation
is limited to our determination that the regulation rationally
relates to a legitimate state purpose. Irrespective of what
we may believe is wise or prudent policy in this difficult area,
"the Constitution does not constitute us as 'Platonic Guard-
ians' nor does it vest in this Court the authority to strike
down laws because they do not meet our standards of desir-
able social policy, 'wisdom,' or 'common sense." Plyler V.
Doe, 457 U.S. 202, 242 (1982) (BURGER, C. J., dissenting).
I
The trimester or "three-stage" approach adopted by the
Court in Roe,¹ and, in a modified form, employed by the
1 Roe recognized that the State possesses important and legitimate in-
terests in protecting maternal health and the potentiality of human life.
These "separate and distinct" interests were held to grow "in substantial-
ity as the woman approaches term and. at a point during pregnancy, each
becomes "compelling." 410 U. S., at 162-163. The state interest in ma-
ternal health was said to become compelling "at approximately the end of
81-746 & 81-1172-DISSENT
AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH 3
Court to analyze the state regulations in these cases, cannot
be supported as a legitimate or useful framework for accom-
modating 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 ac-
commodating the conflicting personal rights and compelling
state interests that are involved in the abortion context.
As the Court indicates today, the State's compelling inter-
est in maternal health changes as medical technology
changes, and any health regulation must not "depart from ac-
cepted medical practice." Ante, at 12.2 In applying this
the first trimester." Id., at 163. Before that time, "the abortion decision
and its effectuation must be left to the medical judgment of the pregnant
woman's attending physician." Id., at 164. After the end of the first tri-
mester, "a State may regulate the abortion procedure to the extent that
the regulation reasonably relates to the preservation and protection of ma-
ternal health." Ibid. The Court noted "in the light of present medical
knowledge
mortality in abortion may be less than mortality in normal
childbirth" during the first trimester of pregnancy. Id., at 163.
The state interest in potential human life was held to become compelling
at "viability," defined by the Court as that point "at which the fetus
[is]
potentially able to live outside the mother's womb, albeit with artificial
aid." Roe, supra, 410 U.S., at 160 (footnote omitted). Based on the
Court's review of the contemporary medical literature, it placed viability at
about 28 weeks, but acknowledged that this point may occur as early as 24
weeks. After viability is reached, the State may, according to Roe, pro-
scribe abortion altogether. except when it is necessary to preserve the life
and health of the mother. See 410 U.S., at 163-164. Since Roe, the
Court has held that held that Roe "left the point [of viability] flexible for
anticipated advancements in medical skill." Colautti V. Franklin, 439
U. S. 379, 387 (1979).
The Court has also identified a state interest in protection of the young
and "familial integrity" in the abortion context. See e. g., H.L. V.
Matheson, 450 U. S. 398. 411 (1981).
Although the Court purports to retain the trimester approach as "a
reasonable legal framework for limiting" state regulatory authority over
abortions, ante at 11, n. 11. the Court expressly abandons the Roe view
that the relative rates of childbirth and abortion mortality are relevant for
determining whether second-trimester regulations are reasonably related
81-746 & 81-1172-DISSENT
4 AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH
standard, the Court holds that "the safety of second-trimes-
ter abortions has increased dramatically" since 1973, when
Roe was decided. Ante, at 17 (footnote omitted). Although
a regulation such as one requiring that all second-trimester
abortions be performed in hospitals "had strong support" in
1973 "as a reasonable health regulation," ibid, this regula-
tion can no longer stand because, according to the Court's dil-
igent research into medical and scientific literature, the dila-
tion and evacuation procedure (D&E), used in 1973 only for
first-trimester abortions, "is now widely and successfully
used for second trimester abortions." Ibid (footnote omit-
ted). Further, the medical literature relied on by the Court
indicates that the D&E procedure may be performed in an
appropriate non-hospital setting for "at least
the early
weeks of the second trimester
"
Ante, at 19. The
Court then chooses the period of 16 weeks of gestation as that
point at which D&E procedures may be performed safely in a
non-hospital setting, and thereby invalidates the Akron hos-
pitalization regulation.
It is not difficult to see that despite the Court's purported
adherence to the trimester approach adopted in Roe, the
lines drawn in that decision have now been "blurred" because
of what the Court accepts as technological advancement in
the safety of abortion procedure. The State may no longer
rely on a "bright line" that separates permissible from imper-
missible regulation, and it is no longer free to consider the
second trimester as a unit and weigh the risks posed by all
abortion procedures throughout that trimester.³ Rather,
to maternal health. Instead, the Court decides that a health regulation
must not "depart from accepted medical practice" if it is to be upheld.
Ante, at 12. The State must now "make a reasonable effort to limit the
the effect of its regulations to the period in the trimester during which its
health interest will be furthered." Ante, at 16 (emphasis added).
'The Court holds that the summary affirmance in Gary-Northwest Indi-
ana Women's Services. Inc. V. Bowen, 496 F. Supp 894 (ND Ind. 1980)
(three-judge court). aff'd sub nom. Gary-Northwest Indiana Women's
81-746 & 81-1172-DISSENT
AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH 5
the State must continuously and conscientiously study con-
temporary medical and scientific literature in order to deter-
mine whether the effect of a particular regulation is to "de-
part from accepted medical practice" insofar as particular
procedures and particular periods within the trimester are
concerned. Assuming that legislative bodies are able to en-
gage in this exacting task,⁴ it is difficult to believe that our
Constitution requires that they do it as a prelude to protect-
ing the health of their citizens. It is even more difficult to
believe that this Court, without the resources available to
those bodies entrusted with making legislative choices, be-
lieves itself competent to make these inquiries and to revise
these standards every time the American College of Obstetri-
cians and Gynecologists (ACOG) or similar group revises its
views about what is and what is not appropriate medical pro-
cedure in this area. Indeed, the ACOG standards on which
the Court relies were changed in 1982 after trial in the
present cases. Before ACOG changed its standards in 1982,
it recommended that all mid-trimester abortions be per-
formed in a hospital. See Akron Center for Reproductive
Health, Inc. V. City of Akron, 651 F. 2d 1198, 1209 (CA6
1981). As today's decision indicates, medical technology is
changing, and this change will necessitate our continued func-
tioning as the nation's "ex officio medical board with powers
Services, Inc. V. Orr. 451 U.S. 934 (1981) is not. as the court below
thought, binding precedent on the hospitalization issue. See ante, at 14,
n. 18. Although the Court reads Gary-Northwest to be decided on the al-
ternate ground that the plaintiffs failed to prove the safety of second-tri-
mester abortions, ibid, the Court simply ignores the fact that the district
court in Gary-Northwest held that "even if the plaintiffs could prove birth
more dangerous than early second trimester D & E abortions." that would
not matter insofar as the constitutionality of the regulations were con-
cerned. See 496 F. Supp., at 903 (emphasis added).
4 Irrespective of the difficulty of the task, legislatures, with their supe-
rior fact-finding capabilities, are certainly better able to make the neces-
sary judgments than are Courts.
81-746 & 81-1172-DISSENT
6 AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH
to approve or disapprove medical and operative practices and
standards throughout the United States." Planned Parent-
hood V. Danforth, 428 U. S. 52, 99 (1976) (WHITE, J., concur-
ring in part and dissenting in part).
Just as improvements in medical technology inevitably will
move forward the point at which the State may regulate for
reasons of maternal health, different technological improve-
ments will move backward the point of viability at which the
State may proscribe abortions except when necessary to pre-
serve the life and health of the mother.
In 1973, viability before 28 weeks was considered unusual.
The fourteenth edition of L. Hellman & J. Pritchard, Wil-
liams Obstetrics, on which the Court relied in Roe for its un-
derstanding of viability, stated that "[a]ttainment of a [fetal]
weight of 1,000 g [or a fetal age of approximately 28 weeks
gestation] is
widely used as the criterion of viability."
Id., at 493. However, récent studies have demonstrated in-
creasingly earlier fetal viability.⁵ It is certainly reasonable
; One study shows that infants born alive with a gestational age of less
than 25 weeks and weight between 500 and 1,249 grams have a 20% chance
of survival. See Phillip, et al., Neonatal Mortality Risk for the Eighties:
The Importance of Birth Weight/Gestational Age Groups, 68 Pediatrics 122
(1981). Another recent comparative study shows that preterm infants
with a weight of 1000 grams or less born in one hospital had a 42% rate of
survival. Kopelman, The Smallest Preterm Infants: Reasons for Opti-
mism and New Dilemmas, 132 Am. J. Diseases Children 461 (1978). An
infant weighing 484 grams and having a gestational age of 22 weeks at
birth is now thriving in a Los Angeles hospital, and the attending physician
has stated that the infant has a "95% chance of survival." Washington
Post. March 31, 1983. p. A2, col. 2. The aborted fetus in No. 81-185,
Simopoulos V. Virginia, post, weighed 495 grams and was approximately
22 gestational weeks.
Recent developments promise even greater success in overcoming the
various respiratory and immunological neonatal complications that stand in
the way of increased fetal viability. See, e. g., Beddis, et al., New Tech-
nique for Servo-Control of Arterial Oxygen Tension in Preterm Infants, 54
Archives of Disease Childhood 278 (1979). "There is absolutely no ques-
tion that in the current era there has been a sustained and progressive im-
81-746 & 81-1172-DISSENT
AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH 7
to believe that fetal viability in the first trimester of preg-
nancy may be possible in the not too distant future. Indeed,
the Court has explicitly acknowledged that Roe left the point
of viability "flexible for anticipated advancements in medical
skill." Colautti V. Franklin, 439 U. S. 379, 387 (1979).
"[W]e recognized in Roe that viability was a matter of medi-
cal judgment, skill, and technical ability, and we preserved
the flexibility of the term." Danforth, supra, 428 U. S., at
64.
The Roe framework, then, is clearly on a collision course
with itself. As the medical risks of various abortion proce-
dures decrease, the point at which the State may regulate for
reasons of maternal health is moved further forward to actual
childbirth. As medical science becomes better able to pro-
vide for the separate existence of the fetus, the point of via-
bility is moved further back toward conception. Moreover,
it is clear that the trimester approach violates the funda-
mental aspiration of judicial decision making through the
application of neutral principles "sufficiently absolute to give
them roots throughout the community and continuity over
significant periods of time
"
A. Cox, The Role of the
Supreme Court in American Government 114 (1976). The
Roe framework is inherently tied to the state of medical tech-
nology that exists whenever particular litigation ensues. Al-
though legislatures are better suited to make the necessary
factual judgments in this area, the Court's framework forces
legislatures, as a matter of constitutional law, to speculate
about what constitutes "accepted medical practice" at any
given time. Without the necessary expertise or ability,
courts must then pretend to act as science review boards and
examine those legislative judgments.
The Court adheres to the Roe framework because the doc-
trine of stare decisis "demands respect in a society governed
provement in the outlook for survival of small premature infants." Stern.
Intensive Care of the Pre-Term Infant, 26 Danish Med. Bull. 144 (1979).
81-746 & 81-1172-DISSENT
8 AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH
by the rule of law." Ante, at 2. Although respect for stare
decisis cannot be challenged, "this Court's considered prac-
tice [is] not to apply stare decisis as rigidly in constitutional
as in nonconstitutional cases." Glidden Company V.
Zdanok, 370 U.S. 530, 543 (1962). Although we must be
mindful of the "desirability of continuity of decision in con-
stitutional questions. when convinced of former error,
this Court has never felt constrained to follow precedent. In
constitutional questions, when correction depends on amend-
ment and not upon legislative action this Court throughout
its history has freely exercised its power to reexamine the
basis of its constitutional decisions." Smith V. Alluright,
321 U. S. 649, 665 (1944) (footnote omitted).
Even assuming that there is a fundamental right to termi-
nate 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.
II
The Court in Roe correctly realized that the State has im-
portant interests "in the areas of health and medical stand-
ards" and that "[t]he State has a legitimate interest in seeing
to it that abortion, like any other medical procedure, is per-
formed under circumstances that insure maximum safety for
the patient." 410 U. S., at 149, 150. The Court also recog-
nized that the State has "another important and legitimate
interest in protecting the potentiality of human life." Id., at
162 (emphasis in original). I agree completely that the State
has these interests, but in my view, the point at which these
interests become compelling does not depend on the trimes-
ter of pregnancy. Rather, these interests are present
throughout pregnancy.
This Court has never failed to recognize that "a State may
81-746 & 81-1172-DISSENT
AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH 9
properly assert important interests in safeguarding health
[and] in maintaining medical standards." 410 U: S., at 154.
It cannot be doubted that as long as a state statute is within
"the bounds of reason and [does not] assume[] the character
of a merely arbitrary fiat
[then] [t]he State
must de-
cide upon measures that are needful for the protection of its
people
" Purity Extract and Tonic Co. V. Lynch, 226
U. S. 192, 204-205 (1912). "There is nothing in the United
States Constitution which limits the State's power to require
that medical procedures be done safely
"
Sendak V.
Arnold, 429 U.S. 968, 969 (WHITE, J., dissenting). "The
mode and procedure of medical diagnostic procedures is not
the business of judges." Parham V. J. R., 442 U. S., 584,
607-608 (1979). Under the Roe framework, however, the
state interest in maternal health cannot become compelling
until the onset of the second trimester of pregnancy because
"until the end of the first trimester mortality in abortion may
be less than mortality in normal childbirth." 410 U.S., at
163. Before the second trimester, the decision to perform an
abortion "must be left to the medical judgment of the preg-
nant woman's attending physician." Id., at 164.6
The fallacy inherent in the Roe framework is apparent: just
because the State has a compelling interest in ensuring ma-
ternal safety once an abortion may be more dangerous in
childbirth, it simply does not follow that the State has no in-
terest before that point that justifies state regulation to en-
sure that first-trimester abortions are performed as safely as
in Interestingly, the Court in Danforth upheld a recordkeeping require-
ment as well as the consent provision even though these requirements
were imposed on first-trimester abortions and although the State did not
impose comparable requirements on most other medical procedures. See
Danforth, supra, 428 U. S., at 65-67, 79-81 (1976). Danforth, then, must
be understood as a retreat from the position ostensibly adopted in Roe that
the State had no compelling interest in regulation during the first trimes-
ter of pregnancy that would justify restrictions imposed on the abortion
decision.
81-746 & 81-1172-DISSENT
10 AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH
possible.⁷
The state interest in potential human life is likewise extant
throughout pregnancy. In Roe, the Court held that al-
though the State had an important and legitimate interest in
protecting potential life, that interest could not become com-
pelling until the point at which the fetus was viable. The dif-
ficulty with this analysis is clear: potential life is no less po-
tential 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," id., at 159, the Court
chose the point of viability-when the fetus is capable of life
independent, of its mother-to permit the complete proscrip-
tion 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 in-
terest in protecting potential human life exists throughout
the pregnancy.
III
Although the State possesses compelling interests in the
protection of potential human life and in maternal health
throughout pregnancy, not every regulation that the State
imposes must be measured against the State's compelling in-
terests and examined with strict scrutiny. This Court has
acknowledged that "the right in Roe V. Wade can be under-
stood only by considering both the woman's interest and the
: For example, the 1982 ACOG Standards, on which the Court relies so
heavily in its analysis, provide that physicians performing first-trimester
abortions in their offices should provide for prompt emergency treatment
or hospitalization in the event of an complications. See ACOG Standards.
at 54. ACOG also prescribes that certain equipment be available for office
abortions. See id., at 57. I have no doubt that the State has a compelling
interest to ensure that these or other requirements are met, and that this
legitimate concern would justify state regulation for health reasons even in
the first trimester of pregnancy.
81-746 & 81-1172-DISSENT
AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH 11
nature of the State's interference with it. Roe did not de-
clare an unqualified 'constitutional right to an abortion,'
Rather, the right protects the woman from unduly burden-
some interference with her freedom to decide whether to ter-
minate her pregnancy." Maher, supra, 432 U.S., at
473-474. The Court and its individual Justices have repeat-
edly utilized the "unduly burdensome" standard in abortion
cases.8
The requirement that state interference "infringe substan-
tially" or "heavily burden" a right before heightened scrutiny
is applied is not novel in our fundamental-rights jurispru-
See Bellotti V. Baird, 428 U. S. 132. 147 (1976) (Bellotti D) (State may
not "impose undue burdens upon a minor capable of giving informed con-
sent." In Bellotti I. the Court left open the question whether a judicial
hearing would unduly burden the Roe right of an adult woman. See 428
U.S., at 147.); Bellotti V. Baird, 443 U.S. 622, 640 (1979) (Bellotti II)
(opinion of JUSTICE POWELL) (State may not "unduly burden the right to
seek an abortion"); Harris V. McRae, 448 U. S. 297, 314 (1980) supra, 448
U. S., at 314 ("The doctrine of Roe V. Wade, the Court held in Maher 'pro-
tects the woman from unduly burdensome interference with her freedom to
decide whether to terminate her pregnancy,' [432 U. S., at 473-474], such
as the the severe criminal sanctions at issue in Roe V. Wade, supra, or the
absolute requirement of spousal consent for an abortion challenged in
Planned Parenthood of Central Missouri V. Danforth, 428 U. S. 52"); Beal
V. Doe, 432 U. S. 438, 446 (1977) (The state interest in protecting potential
human life "does not, at least until approximately the third trimester, be-
come sufficiently compelling to justify unduly burdensome state interfer-
ence
"): Carey V. Population Services International, 431 U.S. 678,
705 (1977) (POWELL, J., concurring in part and concurring in the judgment)
("In my view, [Roe and Griswold] make clear that the [compelling state in-
terest] standard has been invoked only when the state regulation entirely
frustrates or heavily burdens the exercise of constitutional rights in this
area. See Bellotti V. Baird, 428 U. S. 132, 147 (1976)."). Even though
the Court did not explicitly use the "unduly burdensome" standard in eval-
uating the informed-consent requirement in Planned Parenthood V. Dan-
forth. 428 U. S. 52 (1976), the informed-consent requirement for first tri-
mester abortions in Danforth was upheld because it did not "unduly
burden[] the right to seek an abortion." Bellotti I, supra, 428 U.S., at
147.
81-746 & 81-1172-DISSENT
12 AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH
dence, or restricted to the abortion context. In San Antonio
Independent School District V. Rodriguez, 411 U: S. 1, 37, 38
(1973), we observed that we apply "strict judicial scrutiny"
only when legislation may be said to have "deprived,' 'in-
fringed,' or 'interfered' with the free exercise of some such
fundamental personal right or liberty." If the impact of the
regulation does not rise to the level appropriate for our strict
scrutiny, then our inquiry is limited to whether the state law
bears "some rational relationship to legitimate state pur-
poses." Id., at 40. Even in the First Amendment context,
we have required in some circumstances that state laws "in-
fringe substantially" on protected conduct, Gibson V. Florida
Legislative Investigation Committee, 372 U.S. 539, 545
(1963), or that there be "a significant encroachment upon per-
sonal liberty," Bates V. City of Little Rock, 361 U. S. 516, 524
(1960).
In Carey V. Popúlation Services International, 431 U. S.
678 (1977), we eschewed the notion that state law had to meet
the exacting "compelling state interest" test "whenever it
implicates sexual freedom." Id., at 688, n. 5. Rather, we
required that before the "strict scrutiny" standard was em-
ployed, it was necessary that the state law "impose[ ] a sig-
nificant burden" on a protected right, id., at 689, or that it
"burden an individual's right to prevent conception or termi-
nate pregnancy by substantially limiting access to the means
of effectuating that decision
Id., at 688 (emphasis
added). The Court stressed that "even a burdensome regu-
lation may be validated by a sufficiently compelling state in-
terest." Id., at 686. Finally, Griswold V. Connecticut, 381
U. S. 479, 485 (1965) recognized that a law banning the use of
contraceptives by married persons had "a maximum destruc-
tive impact" on the marital relationship.
Indeed, the Court today follows this approach. Although
the Court does not use the expression "undue burden," the
Court recognizes that even a "significant obstacle" can be jus-
tified by a "reasonable" regulation. See ante, at 16-17.
81-746 & 81-1172-DISSENT
AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH 13
The "undue burden" required in the abortion cases repre-
sents the required threshold inquiry that must be conducted
before this Court can require a State to justify its legislative
actions under the exacting "compelling state interest" stand-
ard. "[A] test SO severe that legislation can rarely meet it
should be imposed by courts with deliberate restraint in view
of the respect that properly should be accorded legislative
judgments." Carey, supra, 431 U.S., at 705 (POWELL, J.,
concurring in part and concurring in the judgment).
The "unduly burdensome" standard is particularly appro-
priate in the abortion context because of the nature and scope
of the right that is involved. The privacy right involved in
the abortion context "cannot be said to be absolute." Roe,
supra, 410 U. S., at 154. "Roe did not declare an unqualified
'constitutional right to an abortion." Maher, supra, 432
U. S., at 473. Rather, the Roe right is intended to protect
against state action "drastically limiting the availability and
safety of the desired service," id., at 472, against the imposi-
tion of an "absolute obstacle" on the abortion decision, Dan-
forth, supra, 428 U.S., at 70-71, n.11, or against "official in-
terference" and "coercive restraint" imposed on the abortion
decision, Harris, supra, 448 U. S., at 328 (WHITE, J., con-
curring). That a state regulation may "inhibit" abortions to
some degree does not require that we find that the regulation
is invalid. See H.L. V. Matheson, 450 U. S. 398, 413 (1981).
The abortion cases demonstrate that an "undue burden"
has been found for the most part in situations involving abso-
lute obstacles or severe limitations on the abortion decision.
In Roe, the Court invalidated a Texas statute that criminal-
ized all abortions except those necessary to save the life of
the mother. In Danforth, supra, the Court invalidated a
state prohibition of abortion by saline amniocentesis because
the ban had "the effect of inhibiting
the vast majority of
abortions after the first 12 weeks."
428
U.
S.,
at
79.
The
Court today acknowledges that the regulation in Danforth ef-
fectively represented "a complete prohibition of abortions in
81-746 & 81-1172-DISSENT
14 AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH
certain circumstances." Ante, at 11, n. 11 (emphasis added).
In Danforth, supra, the Court also invalidated state regula-
tions requiring parental or spousal consent as a prerequisite
to a first-trimester abortion because the consent require-
ments effectively and impermissibly delegated a "veto
power" to parents and spouses during the first trimester of
pregnancy. In both Bellotti I, supra, and Bellotti V. Baird,
443 U. S. 622 (1979) (Bellotti II), the Court was concerned
with effective parental veto over the abortion decision.9
In determining whether the State imposes an "undue bur-
den," 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.' Missouri, K. & T.
R. Co. V. May, 194 U.S. 267, 270 (1904) (Holmes, J.)."
Maher, supra, 432 U.S., at 479-480 (footnote omitted).
This does not mean that in determining whether a regulation
imposes an "undue burden" on the Roe right that 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 at-
tention to how the other branches of Government have ad-
The only case in which the Court invalidated regulations that were not
"undue burdens" was Doe V. Bolton, 410 U.S. 179 (1973), which was de-
cided on the same day as Roe. In Doe, the Court invalidated a hospitaliza-
tion requirement because it covered first-trimester abortion. The Court
also invalidated a hospital accreditation requirement. a hospital-committee
approval requirement, and a two-doctor concurrence requirement. The
Court clearly based its disapproval of these requirements on the fact that
the State did not impose them on any other medical procedure apart from
abortion. But the Court subsequent to Doe has expressly rejected the
view that differential treatment of abortion requires invalidation of regula-
tions. See Danforth, supra, 428 U.S., at 67, 80-81: Maher V. Roe, 432
U.S. 464, 480 (1977): Harris, supra, 448 U. S., at 325. See also Planned
Parenthood Ass'n V. Ashcroft, No. 81-1255, and Ashcroft V. Planned Par-
enthood Ass'n. No. 81-1623, post.
81-746 & 81-1172-DISSENT
AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH 15
dressed the same problem." Columbia Broadcasting
System, Inc. V. Democratic National Committee, 412 U.S.
94, 103 (1973). 10
We must always be mindful that "[t]he Constitution does
not compel a state to fine-tune its statutes SO as to to encour-
age or facilitate abortions. To the contrary, state action 'en-
couraging childbirth except in the most urgent circum-
stances' is 'rationally related to the legitimate government
objective of protecting potential life.' Harris V. McRae, 448
U.S., at 325. Accord Maher V. Roe, supra, at 473-474."
H.L. V. Matheson, supra, 450 U.S., at 413 (footnote
omitted).
IV
A
Section 1870.03 of the Akron ordinance requires that sec-
ond-trimester abortions be performed in hospitals. The Court
holds that this requirement imposes a "significant obstacle"
in the form of increased cost and decreased availability of
abortions, ante, at 16, and the Court rejects the argument of-
fered by the State that the requirement is a reasonable
health regulation under Roe, supra, 410 U.S., at 163. See
ante, at 17.
For the reasons stated above, I find no justification for the
trimester approach used by the Court to analyze this restric-
10 In his amicus curiae brief in support of the City of Akron, the Solicitor
General of the United States argues that we should adopt the "unduly bur-
densome" standard and in doing so, we should "accord heavy deference to
the legislative judgment" in determining what constitutes an "undue bur-
den." See Br. of the Solicitor General, at 10. The "unduly burdensome"
standard is appropriate not because it incorporates deference to legislative
judgment at the threshold stage of analysis, but rather because of the lim-
ited nature of the fundamental right that has been recognized in the abor-
tion cases. Although our cases do require that we "pay careful attention"
to the legislative judgment before we invoke strict scrutiny. see e. g., Co-
lumbia Broadcasting System. Inc. V. Democratic National Committee,
412 U. S. 94. 103 (1973). it is not appropriate to weigh the state interests at
the threshold stage.
81-746 & 81-1172-DISSENT
16 AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH
tion. I would apply the "unduly burdensome" test and find
that the hospitalization requirement does not impose an un-
due burden on that decision.
The Court's reliance on increased abortion costs and de-
creased availability is misplaced. As the City of Akron
points out, there is no evidence in this case to show that the
two Akron hospitals that performed second-trimester abor-
tions denied an abortion to any woman, or that they would
not permit abortion by the D&E procedure. See City of Ak-
ron Reply Br. in No. 81-746, at 3. In addition, there was no
evidence presented that other hospitals in nearby areas did
not provide second-trimester abortions. Further, almost
any state regulation, including the licensing requirements
that the Court would allow, see ante, at 19, n. 26, inevitably
and necessarily entails increased costs for any abortion. In
Simopoulos V. Virginia, No. 81-185, post, at -, the Court
upholds the State's stringent licensing requirements that will
clearly involve greater cost because the State's licensing
scheme "is not an unreasonable means of furthering the
State's compelling interest in" preserving maternal health.
Id., at 12. Although the Court acknowledges this indisput-
ably correct notion in Simopoulos, it inexplicably refuses to
apply it in this case. A health regulation, such as the hos-
pitalization requirement, simply does not rise to the level of
"official interference" with the abortion decision. See Har-
ris, supra, 448 U.S., at 328 (WHITE, J., concurring).
Health-related factors that may legitimately be considered
by the State go well-beyond what various medical organiza-
tions have to say about the physical safety of a particular
procedure. Indeed, "all factors-physical, emotional, psy-
chological, familial, and the woman's age-[are] relevant to
the well-being of the patient." Doe V. Bolton, 410 U. S. 179,
192 (1973). The ACOG standards. upon which the Court re-
lies, state that "[r]egardless of advances in abortion technol-
ogy, midtrimester terminations will likely remain more haz-
81-746 & 81-1172-DISSENT
AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH 17
ardous, expensive, and emotionally disturbing for a woman
than early abortions." American College of Obstetricians
and Gynecologists, Technical Bulletin No. 56: Methods of
Midtrimester Abortion (Dec. 1979).
The hospitalization requirement does not impose an undue
burden, and it is not necessary to apply an exacting standard
of review. Further, the regulation has a "rational relation"
to a valid state objective of ensuring the health and welfare of
its citizens. See Williamson V. Lee Optical Co., 348 U. S.
483, 491 (1955). 11
B
Section 1870.05(B) of the Akron ordinance provides that
no physician shall perform an abortion on a minor under 15
11 The Court has never required that state regulation that burdens the
abortion decision be "narrowly drawn" to express only the relevant state
interest. In Roe, the Court mentioned "narrowly drawn" legislative en-
actments, 410 U.S., at 155, but the Court never actually adopted this
standard in the Roe analysis. In its decision today, the Court fully en-
dorses the Roe requirement that a burdensome health regulation. or as the
Court appears to call it, a "significant obstacle," ante, at 16, be "reasonably
related" to the state compelling interest. See ante, at 12, 17. The Court
recognizes that "[a] State necessarily must have latitude in adopting regu-
lations of general applicability in this sensitive area." Id., at 16. See also
Simopoulos V. Virginia, No. 81-185, post, at 10. Nevertheless, the Court
fails to apply the "reasonably related" standard. The hospitalization re-
quirement "reasonably relates" to its compelling interest in protection and
preservation of maternal health under any normal understanding of what
"reasonably relates" signifies.
The Court concludes that the regulation must fall because "it appears
that during a substantial portion of the second trimester the State's regula-
tion 'depart[s] from accepted medical practice.' supra, at 12." Ante. at 16.
It is difficult to see how the Court concludes that the regulation "depart[s]
from accepted medical practice" during "a substantial portion of the second
trimester," ante, at 16, in light of the fact that the Court concludes that
D&E abortions may be performed safely in an outpatient clinic through 16
weeks, or 4 weeks into the second trimester. Ante, at 18. Four weeks is
hardly a "substantial portion" of the second trimester.
81-746 & 81-1172-DISSENT
18 AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH
years of age unless the minor gives written consent, and the
physician first obtains the informed written consent of a par-
ent or guardian, or unless the minor first obtains "an order
from a court having jurisdiction over her that the abortion be
performed or induced." Despite the fact that this regula-
tion has yet to be construed in the state courts, the Court
holds that the regulation is unconstitutional because it is not
"reasonably susceptible of being construed to create an 'op-
portunity for case-by-case evaluations of the maturity of
pregnant minors." Ante, at 23 (quoting Bellotti II, supra,
443 U. S., at 643-644, n. 23 (plurality opinion)). I believe
that the Court should have abstained from declaring the ordi-
nance unconstitutional.
In Bellotti I, supra, the Court abstained from deciding
whether a state parental consent provision was unconstitu-
tional as applied to mature minors. The Court recognized
and respected the well-settled rule that abstention is proper
"where an unconstrued state statute is susceptible of a con-
struction by the state judiciary 'which might avoid in whole
or in part the necessity for federal constitutional adjudica-
tion, or at least materially change the nature of the prob-
lem." 428 U. S., at 147 (quoting Harrison V. NAACP, 360
U.S. 167, 177 (1959)). While acknowledging the force of the
abstention doctrine, see ante, at 22, the Court nevertheless
declines to apply it. Instead, it speculates that a state juve-
nile court might inquire into a minor's maturity and ability to
decide to have an abortion in deciding whether the minor is
being provided "surgical care
necessary for his health,
morals, or well being," ante at 23, n. 31 (quoting Ohio Rev.
Code Ann. § 2151.03). The Court ultimately rejects this pos-
sible interpretation of state law, however, because filing a
petition in juvenile court requires parental notification, an
unconstitutional condition insofar as mature minors are
concerned.
Assuming arguendo that the Court is correct in holding
that a parental notification requirement would be unconstitu-
81-746 & 81-1172-DISSENT
AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH 19
tional as applied to mature minors,12 I see no reason to as-
sume that the Akron ordinance and the state juvenile court
statute compel state judges to notify the parents of a mature
minor if such notification was contrary to the minor's best in-
terests. Further, there is no reason to believe that the state
courts would construe the consent requirement to impose any
type of parental or judicial veto on the abortion decisions of
mature minors. In light of the Court's complete lack of
knowledge about how the Akron ordinance will operate, and
how the Akron ordinance and the state juvenile court statute
interact, our "scrupulous regard for the rightful indepen-
dence of state governments" counsels against "unnecessary
interference by the federal courts with proper and validly ad-
ministered state concerns, a course so essential to the bal-
anced working of our federal system." Harrison V.
NAACP, supra, 360 U. S., at 176 (quoting Matthews V.
Rodgers, 284 U. S.-521, 525 (1932)).
C
The Court invalidates the informed consent provisions of
§ 1870.06(B) and § 1870.06(C) of the Akron ordinance. 13 Al-
12 In my view, no decision of this Court has yet held that parental notifi-
cation in the case of mature minors is unconstitutional. Although the plu-
rality opinion of JUSTICE POWELL in Bellotti II suggested that the state
statute in that case was unconstitutional because, inter alia, it failed to
provide all minors with an opportunity "to go directly to a court without
first consulting or notifying her parents," 443 U. S., at 647, the Court in
H.L. V. Matheson, supra. held that unemancipated and immature minors
had "no constitutional right to notify a court in lieu of notifying their par-
ents." 450 U.S., at 412, n. 22. Furthermore, the Court in H.L. V.
Matheson expressly did not decide that a parental notification requirement
would be unconstitutional if the state otherwise permitted mature minors
to make abortion decisions free of parental or judicial "veto." See id., at
406-407.
13 Section 1870.06(B) requires that the attending physician orally inform
the pregnant woman: (1) that she is pregnant: (2) the probable number of
weeks since conception; (3) that the unborn child is a human being from the
81-746 & 81-1172-DISSENT
20 AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH
though it finds that subsections (1), (2), (6), and (7) of
§ 1870.06(B) are "certainly
not objectionable," ante, at
27, n. 37, it refuses to sever those provisions from subsec-
tions (3), (4), and (5) because the State requires that the "ac-
ceptable" information be provided by the attending physician
when "much, if not all of it, could be given by a qualified per-
son assisting the physician," ibid. Despite the fact that the
Court finds that § 1870.06(C) "properly leaves the precise na-
ture and amount of
disclosure to the physician's discre-
tion and 'medical judgment," ante, at 28, the Court also finds
§ 1870.06(C) unconstitutional because it requires that the dis-
closure be made by the attending physician, rather than by
other "qualified persons" who work at abortion clinics.
We have approved informed consent provisions in the past
even though the physician was required to deliver certain in-
formation to the patient. In Danforth, supra, the Court up-
held a state informed consent requirement because "[t]he de-
cision to abort, indeed, is an important, and often a stressful
one, and it is desirable and imperative that it be made with
full knowledge of its nature and consequences." 428 U. S.,
at 67. 14 In H.L. V. Matheson, supra, the Court noted that
moment of conception, and has certain anatomical and physiological charac-
teristics; (4) that the unborn child may be viable and if so, the physician has
a legal responsibility to try to save the child: (5) that abortion is a major
surgical procedure that can result in serious physical and psychological
complications: (6) that various agencies exist that will provide the pregnant
woman with information about birth control; and (7) that various agencies
exist that will assist the woman through pregnancy should she decide not
to undergo the abortion. Section 1870.06(C) requires the attending physi-
cian to inform the woman of risks associated with her particular pregnancy
and proposed abortion technique, as well as information that the physician
deems relevant "in his own medical judgment."
"The Court in Danforth did not even view the informed consent re-
quirement as having a "legally significant impact" on first-trimester abor-
tions that would trigger the Roe and Doe proscriptions against state inter-
ference in the decision to seek a first-trimester abortion. See 428 U. S., at
81 (recordkeeping requirements).
81-746 & 81-1172-DISSENT
AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH 21
the state statute in the case required that the patient "be ad-
vised at a minimum about available adoption services, about
fetal development, and about forseeable complications and
risks of an abortion. See Utah Code Ann. § 76-7-305 (1978).
In Planned Parenthood of Central Mo. V. Danforth, 428
U. S. 52, 65-67 (1976), we rejected a constitutional attack on
written consent provisions." 450 U. S., at 400, n. 1. In-
deed, we have held that an informed consent provision does
not "unduly burden[] the right to seek an abortion." Bellotti
I, supra, 428 U. S., at 147. 15
The validity of subsections (3), (4), and (5) are not before
the Court because it appears that the City of Akron conceded
their unconstitutionality before the court below. See Brief
for City of Akron in No. 79-3757 (CA6), at 35, Reply Brief for
City of Akron in No. 79-3757, at 5-9. In my view, the re-
maining subsections of § 1870.06(B) are separable from the
subsections conceded to be unconstitutional. Section
1870.19 contains a separability clause which creates a "'pre-
sumption of divisibility" and places "the burden
on the
litigant who would escape its operation." Carter V. Carter
Coal Co., 298 U. S. 238, 335 (1936) (Cardozo, J., dissenting in
part and concurring in the judgment). Akron Center has
failed to show that severence of subsections (3), (4), and (5)
would "create a program quite different from the one the leg-
islature actually adopted." Sloan V. Lemon, 413 U. S. 825,
834 (1973).
The remainder of § 1870.06(B), and § 1870.06(C), impose no
undue burden or drastic limitation on the abortion decision.
15 Assuming arguendo that the Court now decides that Danforth. supra.
Bellotti II, supra. and H.L. V. Matheson were incorrect, and that the in-
formed consent provisions do burden the right to seek an abortion. the
Court inexplicably refuses to determine whether this "burden" "reasonably
relates" to legitimate state interests. Ante, at 12 (quoting Roe, supra, 410
U. S., at 163). Rather, the Court now decides that an informed-consent
provision must be justified by a "vital state need" before it can be upheld.
See ante, at 29.
81-746 & 81-1172-DISSENT
22 AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH
The City of Akron is merely attempting to ensure that the
decision to abort is made in light of that knowledge that the
City deems relevant to informed choice. As such, these
regulations do not impermissibly affect any privacy right
under the Fourteenth Amendment.
D
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 emer-
gency. See § 1870.12. The court below invalidated this re-
quirement because it affected abortion decisions during the
first trimester of pregnancy. The Court affirms the decision
below, not on the ground that it affects early abortions, but
because "Akron has failed to demonstrate that any legitimate
state interest is furthered by an arbitrary and inflexible wait-
ing period." Ante, at 32-33. The Court accepts the argu-
ments made by Akron Center that the waiting period in-
creases the costs of obtaining an abortion by requiring the
pregnant woman to make two trips to the clinic, and in-
creases the risks of abortion through delay and scheduling
difficulties. The decision whether to proceed should be left
to the physician's "discretion in the exercise of his medical
judgment." Ante, at 32 (quoting Colautti, supra, 439
U. S., at 387).
It is certainly difficult to understand how the Court be-
lieves that the physician-patient relationship is able to accom-
modate any interest that the State has in maternal physical
and mental well-being in light of the fact that the record in
this case shows that the relationship is non-existent. See
16 This is not to say that the informed consent provisions may not violate
the First Amendment rights of the physician if the State requires him or
her to communicate its ideology. See Wooley V. Maynard, 430 U. S. 705
(1977). However, it does not appear that Akron Center raised any First
Amendment argument in the Court below. See Brief for Akron Center in
No. 79-3701 (CA6), at 18-23. See Reply Brief for Akron Center in No.
79-3701 (CA6), at 26-33.
81-746 & 81-1172-DISSENT
AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH 23
651 F. 2d, at 1217 (Kennedy, J., concurring in part and dis-
senting in part). It is also interesting to note that the Amer-
ican College of Obstetricians and Gynecologists recommends
that "[p]rior to abortion, the woman should have access to
special counseling that explores options for the management
of unwanted pregnancy, examines the risks, and allows suffi-
cient time for reflection prior to making an informed deci-
sion." 1982 ACOG Standards for Obstetric-Gynecologic
Services, at 54.
The waiting period does not apply in cases of medical emer-
gency. Therefore, should the physician determine that the
waiting period would increase risks significantly, he or she
need not require the woman to wait. The Court's concern in
this respect is simply misplaced. Although the waiting pe-
riod may impose an additional cost on the abortion decision,
this increased cost does not unduly burden the availability of
abortions or impose an absolute obstacle to access to abor-
tions. Further, the State is not required to "fine-tune" its
abortion statutes so as to minimize the costs of abortions.
H.L. V. Matheson, supra, 450 U.S., at 413.
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, supra, 428 U. S., at 67,
the decision to abort is "a stressful one," and the waiting pe-
riod 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 pro-
tect and preserve. "No other [medical] procedure involves
the purposeful termination of a potential life." Harris,
supra, 448 U.S., at 325. 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 conse-
quences on fetal life, and the possible effects on her own. 17
17 On the basis of this analysis of the waiting-period requirement. the
81-746 & 81-1172-DISSENT
24 AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH
E
Finally, § 1870.16 of the Akron ordinance requires that
"[a]ny physician who shall perform or induce an abortion
upon a pregnant woman shall insure that the remains of the
unborn child are disposed of in a humane and sanitary man-
ner." The Court finds this provision void-for-vagueness. I
disagree.
In Planned Parenthood Ass'n V. Fitzpatrick, 401 F. Supp.
554 (ED Pa. 1975) (three-judge court), aff'd mem. sub nom.
Franklin V. Fitzpatrick, 428 U. S. 901 (1976), the district
court upheld a "humane disposal" provision against a vague-
ness attack in light of the State's representation that the in-
tent of the act ""is to preclude the mindless dumping of
aborted fetuses on the garbage piles." 401 F. Supp., at 573.
The district court held that different concerns would be impli-
cated if the statute_were, at some point, determined to re-
quire "expensive burial." Ibid. In the present case, the
City of Akron has informed this Court that the intent of the
"humane" portion of its statute, as distinguished from the
"sanitary" portion, is merely to ensure that fetuses will not
be
"dump[ed]
on garbage piles." Br. for City of Ak-
ron in No. 81-746, at 48. In light of the fact that the City of
Akron indicates no intent to require that physicians provide
"decent burials" for fetuses, and that "humane" is no more
vague than the term "sanitary," the vagueness of which Ak-
ron Center does not question, I cannot conclude that the stat-
ute is void for vagueness.
Court charges that "the dissent would uphold virtually any abortion-inhib-
iting regulation
Ante, at 3, n. 1. The waiting-period requirement
is valid because it imposes a small cost when all relevant factors are taken
into consideration. This is precisely the reasoning that JUSTICE POWELL
employs in upholding the pathology-report requirement in Planned Par-
enthood Association V. Ashcroft. No. 81-1255, and Ashcroft V. Planned
Parenthood, No. 1623 (report requirement imposes a "comparatively small
additional cost," post, at 13).
81-746 & 81-1172-DISSENT
AKRON U. AKRON CENTER FOR REPRODUCTIVE HEALTH 25
V
For the reasons set forth above, I dissent from the judg-
ment of the Court in these cases.
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543. of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
Nos. 81-1255 AND 81-1623
PLANNED PARENTHOOD ASSOCIATION OF
KANSAS CITY, MISSOURI, INC.,
ET AL., PETITIONERS
81-1255
v.
JOHN ASHCROFT, ATTORNEY GENERAL OF
MISSOURI, ET AL.
JOHN ASHCROFT, ATTORNEY GENERAL OF
MISSOURI, ET AL., PETITIONERS
81-1623
v.
PLANNED PARENTHOOD ASSOCIATION OF
KANSAS CITY, MISSOURI, INC.,
ET AL., PETITIONERS
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[June 15, 1983]
JUSTICE POWELL delivered the opinion of the Court with
respect to Parts I, II, and VI, and an opinioin with respect to
Parts III, IV, and V, in which THE CHIEF JUSTICE joins.
These cases, like City of Akron V. Akron Center for Re-
productive Health, Inc., ante, p. — and Simopoulos V.
Virginia, post, p. — present questions as to the validity of
state statutes regulating the performance of abortions.
I
Planned Parenthood of Kansas City, Missouri, Inc., two
physicians who perform abortions, and an abortion clinic
81-1255 & 81-1623-OPINION
2
PLANNED PARENTHOOD ASSN. v. ASHCROFT
("plaintiffs") filed a complaint in the District Court for the
Western District of Missouri challenging, as unconstitutional,
several sections of the Missouri statutes regulating the per-
formance of abortions. The sections relevant here include
Mo. Rev. Stat. § 188.025 (Supp. 1982), requiring that abor-
tions after 12 weeks of pregnancy be performed in a hospi-
tal; 1 § 188.047, requiring a pathology report for each abortion
performed;2 § 188.030, requiring the presence of a second
physician during abortions performed after viability;³ and
$188.028, requiring minors to secure parental or judicial
consent.4
1 Mo. Rev. Stat. § 188.025 provides: "Every abortion performed sub-
sequent to the first twelve weeks of pregnancy shall be performed in a
hospital."
2Mo. Rev. Stat. § 188.047 provides:
"A representative sample of tissue removed at the time of abortion shall
be submitted to a board eligible or certified pathologist, who shall file a
copy of the tissue report with the state division of health, and who shall
provide a copy of the report to the abortion facility or hospital in which the
abortion was performed or induced and the pathologist's report shall be
made a part of the patient's permanent record."
3 Mo. Rev. Stat. § 188.030.3 provides:
"An abortion of a viable unborn child shall be performed or induced only
when there is in attendance a physician other than the physician perform-
ing or adducing the abortion who shall take control of and provide immedi-
ate medical care for a child born as a result of the abortion. During the
performance of the abortion, the physician performing it, and subsequent
to the abortion, the physician required by this section to be in attendance.
shall take all reasonable steps in keeping with good medical practice, con-
sistent with the procedure used, to preserve the life and health of the via-
ble unborn child; provided that it does not pose an increased risk to the life
or health of the woman."
'Mo. Rev. Stat. § 188.028 provides:
"1. No person shall knowingly perform an abortion upon a pregnant
woman under the age of eighteen years unless:
"(1) The attending physician has secured the informed written consent
of the minor and one parent or guardian: or
"(2) The minor is emancipated and the attending physician has received
the informed written consent of the minor; or
81-1255 & 81-1623-OPINION
PLANNED PARENTHOOD ASSN. v. ASHCROFT
3
After hearing testimony from a number of expert wit-
nesses, the District Court invalidated all of these sections ex-
cept the pathology requirement. 483 F. Supp. 679, 699-701
(1980).5 The Court of Appeals for the Eighth Circuit re-
"(3) The minor has been granted the right to self-consent to the abortion
by court order pursuant to subsection 2 of this section, and the attending
physician has received the informed written consent of the minor; or
"(4) The minor has been granted consent to the abortion by court order,
and the court has given its informed written consent in accordance with
subsection 2 of this section, and the minor is having the abortion willingly,
in compliance with subsection 3 of this section.
"2. The right of a minor to self-consent to an abortion under subdivision
(3) of subsection 1 of this section or court consent under subdivision (4) of
subsection 1 of this section may be granted by a court pursuant to the fol-
lowing procedures:
"(1) The minor or next friend shall make an application to the juvenile
court which shall assist the minor or next friend in preparing the petition
and notices required pursuant to this section. The minor or the next
friend of the minor shall thereafter file a petition setting forth the initials of
the minor; the age of the minor; the names and addresses of each parent,
guardian. or, if the minor's parents are deceased and no guardian has been
appointed, any other person standing in loco parentis of the minor: that the
minor has been fully informed of the risks and consequences of the abor-
tion; that the minor is of sound mind and has sufficient intellectual capacity
to consent to the abortion: that, if the court does not grant the minor ma-
jority rights for the purpose of consent to the abortion, the court should
find that the abortion is in the best interest of the minor and give judicial
consent to the abortion: that the court should appoint a guardian ad litem of
the child; and if the minor does not have private counsel, that the court
should appoint counsel. The petition shall be signed by the minor or the
next friend:
"(3) A hearing on the merits of the petition, to be held on the record,
shall be held as soon as possible within five days of the filing of the petition.
At the hearing, the court shall hear evidence relating to the emotional
development, maturity, intellect and understanding of the minor; the na-
ture, possible consequences, and alternatives to the abortion: and any
other evidence that the court may find useful in determining whether the
minor should be granted majority rights for the purpose of consenting to
[Footnote 5 is on page 4]
81-1255 & 81-1623-OPINION
4
PLANNED PARENTHOOD ASSN. v. ASHCROFT
versed the District Court's judgment with respect to
§ 188.028, thereby upholding the requirement that a minor
secure parental or judicial consent to an abortion. It also
held that the District Court erred in sustaining § 188.047, the
pathology requirement. The District Court's judgment with
respect to the second-physician requirement was affirmed,
and the case was remanded for further proceedings and find-
ings relating to the second-trimester hospitalization require-
ment. 655 F. 2d 848, 872-873 (1981). On remand, the Dis-
trict Court affirmed its holding that the second-trimester
hospitalization requirement was unconstitutional. The
Court of Appeals affirmed this judgment. 664 F. 2d 687, 691
(1981). We granted certiorari. 456 U. S. 988 (1982).
The Court today in City of Akron, ante, at 8-12, has stated
fully the principles that govern judicial review of state stat-
utes regulating abortions, and these need not be repeated
the abortion or whether the abortion is in the best interests of the minor;
"(4) In the decree, the court shall for good cause:
"(a) Grant the petition for majority rights for the purpose of consenting
to the abortion; or
"(b) Find the abortion to be in the best interests of the minor and give
judicial consent to the abortion, setting forth the grounds for so finding; or
"(c) Deny the petition, setting forth the grounds on which the petition is
denied;
"3. If a minor desires an abortion, then she shall be orally informed of
and, if possible, sign the written consent required by section 188.039 in the
same manner as an adult person. No abortion shall be performed on any
minor against her will, except that an abortion may be performed against
the will of a minor pursuant to a court order described in subdivision (4) of
subsection 1 of this section that the abortion is necessary to preserve the
life of the minor."
5 The District Court also awarded attorney's fees for all hours claimed by
the plaintiffs' attorneys. The Court of Appeals affirmed this allocation of
fees. See 655 F. 2d 848, 872 (CA8 1981). The petition for certiorari
raises the issue whether an award of attorney's fees, made pursuant to 42
U.S. C. § 1988, should be proportioned to reflect the extent to which plain-
tiffs prevailed.
81-1255 & 81-1623-OPINION
PLANNED PARENTHOOD ASSN. v. ASHCROFT
5
here. With these principles in mind, we turn to the statutes
at issue.
II
In City of Akron, we invalidated a city ordinance requiring
physicians to perform all second-trimester abortions at gen-
eral or special hospitals accredited by the Joint Commission
on Accreditation of Hospitals (JCAH) or by the American Os-
teopathic Association. Ante, at 13. Missouri's hospitaliza-
tion requirements are similar to those enacted by Akron, as
all second-trimester abortions must be performed in general,
acute-care facilities.⁶ For the reasons stated in City of
Akron, we held that such a requirement "unreasonably in-
fringes upon a woman's constitutional right to obtain an
abortion." Ante, at 20-21. For the same reasons, we af-
6 Missouri does not define the term "hospital" in its statutory provisions
regulating abortions. We therefore must assume, as did the courts below,
see 483 F. Supp., at 686, n. 10; 664 F. 2d, at 689-690, and nn. 3, 5 and 6,
that the term has its common meaning of a general, acute-care facility.
Cf. Mo. Rev. Stat. § 188.015(2) (Supp. 1982) (defining "abortion facility" as
"a clinic, physician's office, or any other place or facility in which abortions
are performed other than a hospital"). Section 197.020.2 (1978), part of
Missouri's hospital licensing laws, reads:
"Hospital' means a place devoted primarily to the maintenance and opera-
tion of facilities for the diagnosis, treatment or care for not less than
twenty-four hours in any week of three or more nonrelated individuals suf-
fering from illness, disease, injury, deformity or other abnormal physical
conditions; or a place devoted primarily to provide for not less than twenty-
four hours in any week medical
care for three or more nonrelated indi-
viduals.
Cf. Mo. Rev. Stat. § 197.200(1) (1978) (defining "ambulatory surgical cen-
ter" to include facilities "with an organized medical staff of physicians" and
"with continuous physician services and registered professional nursing
services whenever a patient is in the facility"): 13 Mo. Admin. Code
50-30.010(1)(A) (1977) (same). The regulations for the Department of So-
cial Services establish standards for the construction. physical facilities,
and administration of hospitals. Id., 50-20.010 to 50-20.030 (1977).
These are not unlike those set by JCAH. See City of Akron, ante, at 13,
and n. 16.
81-1255 & 81-1623-OPINION
6
PLANNED PARENTHOOD ASSN. v. ASHCROFT
firm the Court of Appeals' judgment that § 188.025 is
unconstitutional.
III
We turn now to the State's second-physician requirement.
In Roe V. Wade, 410 U. S. 113 (1973), the Court recognized
that the State has a compelling interest in the life of a viable
fetus: "[T]he State in promoting its interest in the potential-
ity of human life may, if it chooses, regulate, and even pro-
scribe, abortion except where it is necessary, in appropriate
medical judgment, for the preservation of the life or health of
the mother." Id., at 164-165. See Colautti V. Franklin,
439 U. S. 379, 386-387 (1979); Beal V. Doe, 432 U. S. 438,
445-446 (1977). Several of the Missouri statutes undertake
such regulation. Post-viability abortions are proscribed ex-
cept when necessary to preserve the life or the health of the
woman. Mo. Rev. Stat. § 188.030.1 (Supp. 1982). The
State also forbids the use of abortion procedures fatal to the
viable fetus unless alternative procedures pose a greater risk
to the health of the woman. § 188.030.2.
The statutory provision at issue in this case requires the
attendance of a second physician at the abortion of a viable
fetus. § 188.030.3. This section requires that the second
physician "take all reasonable steps in keeping with good
medical practice
to preserve the life and health of the via-
ble unborn child; provided that it does not pose an increased
risk to the life or health of the woman." See n. 3, supra. It
also provides that the second physician "shall take control of
and provide immediate medical care for a child born as a re-
sult of the abortion."
The lower courts invalidated § 188.030.3. The plaintiffs,
respondents here on this issue, urge affirmance on the
The courts below found, and JUSTICE BLACKMUN'S dissenting opinion
agrees. post, at 6-7, that there is no possible justification for a second-phy-
sician requirement whenever D&E is used because no viable fetus can sur-
vive a D&E procedure. 483 F. Supp., at 694: 655 F. 2d. at 865. Accord-
81-1255 & 81-1623-OPINION
PLANNED PARENTHOOD ASSN. v. ASHCROFT
7
grounds that the second-physician requirement distorts the
traditional doctor-patient relationship, and is both impracti-
cal and costly. They note that Missouri does not require two
physicians in attendance for any other medical or surgical
procedure, including childbirth or delivery of a premature
infant.
ingly, for them, § 188.030.3 is overbroad. This reasoning rests on two
assumptions. First, a fetus cannot survive a D&E abortion, and second,
D&E is the method of choice in the third trimester. There is general
agreement as to the first proposition, but not as to the second. Indeed,
almost all of the authorities disagree with JUSTICE BLACKMUN'S critical as-
sumption, and as the Court of Appeals noted, the choice of this procedure
after viability is subject to the requirements of § 188.030.2. See id., at
865, and n. 28. Nevertheless, the courts below, in conclusory language,
found that D&E is the "method of choice even after viability is possible."
655 F. 2d, at 865. No scholarly writing supporting this view is cited by
those courts or by the dissent. Reliance apparently is placed solely on the
testimony of Dr. Robert Crist, a physician from Kansas, to whom the Dis-
trict Court referred in a footnote. 483 F. Supp., at 694, n. 25. This testi-
mony provides slim support for this holding. Dr. Crist's testimony, if
nothing else, is remarkable in its candor. He is a member of the National
Abortion Federation, "an organization of abortion providers and people in-
terested in the pro-choice movement." 2 Record 415-416. He supported
the use of D&E on 28-week pregnancies, well into the third trimester. In
some circumstances, he considered it a better procedure than other meth-
ods. See 2 Record 427-428. His disinterest in protecting fetal life is evi-
denced by his agreement "that the abortion patient has a right not only to
be rid of the growth, called a fetus in her body, but also has a right to a
dead fetus." Id., at 431. He also agreed that he "[n]ever ha[s] any inten-
tion of trying to protect the fetus, if it can be saved," id., and finally that
"as a general principle" "[t]here should not be a live fetus," id., at 435.
Moreover, contrary to every other view, he thought a fetus could survive a
D&E abortion. Id., at 433-434. None of the other physicians who testi-
fied at the trial, those called both by the plaintiffs and defendants, consid-
ered that any use of D&E after viability was indicated. See 1 Record 21
(limiting use of D&E to under 18 weeks); 2 Record 381, 410-413 (Dr. Rob-
ert Kretzschmar) (D&E up to 17 weeks: would never perform D&E after
26 weeks); 4 Record 787 (almost "inconceivable" to use D&E after viabil-
ity); 7 Record 52 (D&E safest up to 18 weeks); id., at 110 (doctor not per-
forming D&E past 20 weeks); id., at 111 (risks of doing outpatient D&E
81-1255 & 81-1623-OPINION
8
PLANNED PARENTHOOD ASSN. v. ASHCROFT
The first physician's primary concern will be the life and
health of the woman. Many third-trimester abortions in
Missouri will be emergency operations,8 as the State permits
these late abortions only when they are necessary to pre-
serve the life or the health of the woman. It is not unreason-
equivalent to childbirth at 24 weeks). See also 8 Record 33, 78-81 (deposi-
tion of Dr. Willard Cates) (16 weeks latest D&E performed). Apparently
Dr. Crist performed abortions only in Kansas, 2 Record 334, 368, 428, a
state having no statutes comparable to § 188.030.1 and § 188.030.2. It is
not clear whether he was operating under or familiar with the limitations
imposed by Missouri law. Nor did he explain the circumstances when
there were "contraindications" against the use of any of the procedures
that could preserve viability, or whether his conclusory opinion was limited
to emergency situations. Indeed, there is no record evidence that D&E
ever will be the method that poses the least risk to the woman in those rare
situations where there are compelling medical reasons for performing an
abortion after viability. If there were such instances, they hardly would
justify invalidating § 188.030.3.
In addition to citing Dr. Crist in its footnote, the District Court cited—
with no elaboration-Dr. Schmidt. His testimony, reflecting no agree-
ment with Dr. Crist, is enlightening. Although he conceded that the at-
tendance of a second physician for a D&E abortion on a viable fetus was not
necessary, he considered the point mostly theoretical, because he "simply
[did] not believe that the question of viability comes up when D&E is an
elected method of abortion." 4 Record 836. When reminded of Dr.
Crist's earlier testimony, he conceded the remote possibility of third-tri-
mester D&E abortions, but stated: "I personally cannot conceive that as a
significant practical point. It may be important legally, but [not] from a
medical standpoint.
Ibid. Given that Dr. Crist's discordant testi-
mony is wholly unsupported, the State's compelling interest in protecting a
viable fetus justifies the second-physician requirement even though there
may be the rare case when a physician may think honestly that D&E is
required for the mother's health. Legislation need not accommodate
every conceivable contingency.
"There is no clearly expressed exception on the face of the statute for
the performance of an abortion of a viable fetus without the second physi-
cian in attendance. There may be emergency situations where. for exam-
ple, the woman's health may be endangered by delay. Section § 188.030.3
is qualified, at least in part, by the phrase "provided that it does not pose
an increased risk to the life or health of the woman." This clause reason-
ably could be construed to apply to such a situation. Cf. H.L. V. Math-
81-1255 & 81-1623-OPINION
PLANNED PARENTHOOD ASSN. v. ASHCROFT
9
able for the State to assume that during the operation the
first physician's attention and skills will be directed to pre-
serving the woman's health, and not to protecting the actual
life of those fetuses who survive the abortion procedure. Vi-
able fetuses will be in immediate and grave danger because of
their premature birth. A second physician, in situations
where Missouri permits third-trimester abortions, may be of
assistance to the woman's physician in preserving the health
and life of the child.
By giving immediate medical attention to a fetus that is de-
livered alive, the second physician will assure that the State's
interests are protected more fully than the first physician
alone would be able to do. And given the compelling inter-
est that the State has in preserving life, we cannot say that
the Missouri requirement of a second physician in those un-
usual circumstances where Missouri permits a third-trimes-
ter abortion is unconstitutional. Preserving the life of a via-
ble fetus that is aborted may not often be possible,9 but the
State legitimately may choose to provide safeguards for the
comparatively few instances of live birth that occur. We be-
lieve the second-physician requirement reasonably furthers
the State's compelling interest in protecting the lives of via-
ble fetuses, and we reverse the judgment of the Court of Ap-
peals holding that § 188.030.3 is unconstitutional.
IV
In regulating hospital services within the State, Missouri
eson, 450 U. S. 398, 407, n. 14 (1981) (rejecting argument that Utah statute
might apply to individuals with emergency health care needs).
*See ACOG Technical Bulletin No. 56, supra n. 7, at 4 (as high as 7%
live-birth rate for intrauterine instillation of uterotonic agents); Stroh &
Hinman, Reported Live Births Following Induced Abortion: Two and One-
Half Years' Experience in Upstate New York. 126 Am. J. Obstet. Gynecol.
83, 83-84 (1976) (26 live births following saline induced-abortions: 9 follow-
ing hysterotomy; 1 following oxtyocin-induced abortion) (one survival out
of 38 live births): 4 Record 728 (50-62% mortality rate for fetuses 26 and 27
weeks); id., at 729 (25-92% mortality rate for fetuses 28 and 29 weeks): id.,
at 837 (50% mortality rate at 34 weeks).
81-1255 & 81-1623-OPINION
10
PLANNED PARENTHOOD ASSN. v. ASHCROFT
requires that "[a]ll tissue surgically removed with the excep-
tion of such tissue as tonsils, adenoids, hernial sacs and pre-
puces, shall be examined by a pathologist, either on the
premises or by arrangement outside of the hospital." 13 Mo.
Admin. Code 50-20.030(3)(A)7 (1977). With respect to abor-
tions, whether performed in hospitals or in some other facil-
ity, § 188.047 requires the pathologist to "file a copy of the
tissue report with the State Division of Health.
"
See n.
2, supra. The pathologist also is required to "provide a copy
of the report to the abortion facility or hospital in which the
abortion was performed or induced." Thus, Missouri ap-
pears to require that tissue following abortions, as well as
from almost all other surgery performed in hospitals, must be
submitted to a pathologist, not merely examined by the per-
forming doctor. The narrow question before us is whether
the State lawfully also may require the tissue removed fol-
lowing abortions performed in clinics as well as in hospitals to
be submitted to a pathologist.
On its face and in effect, § 188.047 is reasonably related to
generally accepted medical standards and "further[s] impor-
tant health-related State concerns." City of Akron, ante, at
12. As the Court of Appeals recognized, pathology examina-
tions are clearly "useful and even necessary in some cases,"
because "abnormalities in the tissue may warn of serious,
possibly fatal disorders." 655 F. 2d, at 870. 10 As a rule, it is
10 A pathological examination is designed to assist in the detection of
fatal ectopic pregnancies, hydatritaforme moles or other precancerous
growths, and a variety of other problems that can be discovered only
through a pathological examination. The general medical utility of patho-
logical examinations is clear. See, e. g., American College of Obstetri-
cians and Gynecologists (ACOG), Standards for Obstetric-Gynecologic
Services 52 (5th ed. 1982): National Abortion Federation (NAF), National
Abortion Federation Standards 6 (1981) (compliance with standards obliga-
tory for NAF member facilities to remain in good standing): Brief of the
American Public Health Association as Amicus Curiae in Nos. 81-185.
81-1255 & 81-1623-OPINION
PLANNED PARENTHOOD ASSN. v. ASHCROFT
11
accepted medical practice to submit all tissue to the examina-
tion of a pathologist." This is particularly important follow-
ing abortion, because questions remain as to the long-range
complications and their effect on subsequent pregnancies.
See App. 72-73 (testimony of Dr. Willard Cates, Jr.); Levin,
et al., Association of Induced Abortion with Subsequent
Pregnancy Loss, 243 J. A.M.A. 2495, 2499 (1980). Recorded
pathology reports, in concert with abortion complication re-
ports, provide a statistical basis for studying those complica-
tions. Cf. Planned Parenthood of Central Mo. V. Danforth,
428 U. S. 52, 81 (1976).
Plaintiffs argue that the physician performing the abortion
is as qualified as a pathologist to make the examination.
This argument disregards the fact that Missouri requires a
pathologist-not the performing physician-to examine tis-
sue after almost every type of surgery. Although this re-
quirement is in a provision relating to surgical procedures in
hospitals, many of the same procedures included within the
81-746, 81-1172, at 29, n. 6 (supporting the NAF standards for non-hospi-
tal abortion facilities as constituting "minimum standards").
11 ACOG's standards at the time of the District Court's trial recom-
mended that a "tissue or operative review committee" should examine "all
tissue removed at obstetric-gynecologic operations." ACOG, Standards
for Obstetric-Gynecologic Services 13 (4th ed. 1974). The current ACOG
standards also state as a general rule that, for all surgical services per-
formed on an ambulatory basis, "[t]issue removed should be submitted to a
pathologist for an examination." ACOG, supra, at 52 (5th ed. 1982). The
dissent, however, relies on the recent modification of these standards as
they apply to abortions. ACOG now provides an "exception to the prac-
tice" of mandatory examination by a pathologist and makes such examina-
tion for abortion tissue permissive. Ibid. Not surprisingly, this change
in policy was controversial within the College. See 4 Record 799-800.
ACOG found that "[n]o consensus exists regarding routine microscopic
examination of aspirated tissue in every case," though it recognized-on
the basis of inquiries made in 29 institutions-that in a majority of them a
microscopic examination is performed in all cases. ACOG, Report of Corn-
mittee on Gynecologic Practice, Item #6.2.1 (June 27-28, 1980).
81-1255 & 81-1623-OPINION
12
PLANNED PARENTHOOD ASSN. v. ASHCROFT
Missouri statute customarily are performed also in outpatient
clinics. No reason has been suggested why the prudence re-
quired in a hospital should not be equally appropriate in such
a clinic. Indeed, there may be good reason to impose
stricter standards in this respect on clinics performing abor-
tions than on hospitals.¹² As the testimony in the District
Court indicates, medical opinion differs widely on this ques-
tion. See 3 Record 623; 4 Record 749-750, 798-800, 845-847;
n. 2, supra. There is substantial support for Missouri's re-
quirement. In this case, for example, Dr. Bernard
Nathanson, a widely experienced abortion practitioner, testi-
fied that he requires a pathologist examination after each of
the 60,000 abortions performed under his direction at the
New York Center for Reproductive and Sexual Health. He
considers it "absolutely necessary to obtain a pathologist's re-
port on each and every specimen of tissue removed for abor-
tion or for that matter from any other surgical procedure
which involved the removal of tissue from the human body."
12 The professional views that the plaintiffs find to support their position
do not disclose whether consideration was given to the fact that not all
abortion clinics, particularly inadequately regulated clinics, conform to eth-
ical or generally accepted medical standards. See Bellotti V. Baird, 443
U. S. 622, 641, n. 21 (1979) (Bellotti II) (minors may resort to "incompetent
or unethical" abortion clinics); Planned Parenthood of Central Mo. V. Dan-
forth, 428 U. S. 52, 91, n. 2 (1976) (Stewart, J., concurring). The Sun-
Times of Chicago, in a series of special reports, disclosed widespread ques-
tionable practices in abortion clinics in Chicago, including the failure to
obtain proper pathology reports. See "The Abortion Profiteers." Chicago
Sun-Times 25-26 (Special Reprint 1978). It is clear. therefore, that a
State reasonably could conclude that a pathology requirement is necessary
in abortion clinics as well as in general hospitals.
In suggesting that we make from a "comfortable perspective" the judg-
ment that a State constitutionally can require the additional cost of a pa-
thology examination. the dissent suggests that we disregard the interests
of the "woman on welfare or the unemployed teenager." Post, at 4. But
these women may be those most likely to seek the least expensive clinic
available. As the standards of medical practice in such clinics may not be
the highest, a State may conclude reasonably that a pathologist's examina-
tion of tissue is particularly important for their protection.
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PLANNED PARENTHOOD ASSN. v. ASHCROFT
13
App. 143-144. See also App. 146-147 (testimony of Dr.
Keitges); 5 Record 798-799 (testimony of Dr. Schmidt). 13
In weighing the balance between protection of a woman's
health and the comparatively small additional cost of a pa-
thologist's examination, we cannot say that the Constitution
requires that a State subordinate its interest in health to min-
imize to this extent the cost of abortions. Even in the early
weeks of pregnancy, "[c]ertain regulations that have no sig-
nificant impact on the woman's exercise of her right to decide
to have an abortion may be permissible where justified by im-
portant state health objectives." City of Akron, ante, at 11.
See Danforth, 428 U. S., at 80-81. We think the cost of a
tissue examination does not significantly burden a pregnant
woman's abortion decision. The estimated cost of compli-
ance for plaintiff Reproductive Health Services was $19.40
per abortion performed, 483 F. Supp., at 700, n. 48, and in
light of the substantial benefit's that a pathologist's examina-
tion can have, this small cost clearly is justified. In Dan-
forth, this Court unanimously upheld Missouri's
recordkeeping requirement as "useful to the State's interest
in protecting the health of its female citizens, and [as] a re-
source that is relevant to decisions involving medical experi-
ence and judgment," 428 U. S., at 81.14 We view the re-
13 The dissent appears to suggest that § 188.047 is constitutionally infirm
because it does not require microscopic examination, post. at 4, but that
misses the point of the regulation. The need is for someone other than the
performing clinic to make an independent medical judgment on the tissue.
See n. 12, supra; 4 Record 750 (Dr. Pierre Keitges, a pathologist). It is
reasonable for the State to assume that an independent pathologist is more
likely to perform a microscopic examination than the performing doctor.
See H. Cove, Surgical Pathology of the Endometrium 28 (1981) ("To the
pathologist, abortions of any sort are evaluated grossly and microscopically
for the primary purpose of establishing a diagnosis of intrauterine preg-
nancy.") (emphasis added).
The Danforth Court also noted that "[t]he added requirements for con-
fidentiality, with the sole exception for public health officers. and for reten-
tion for seven years, a period not unreasonable in length, assist and per-
suade us in our determination of the constitutional limits." 428 U.S.,
81-1255 & 81-1623-OPINION
14
PLANNED PARENTHOOD ASSN. v. ASHCROFT
quirement for a pathology report as comparable and as a
relatively insignificant burden. Accordingly, we reverse the
judgment of the Court of Appeals on this issue.
V
As we noted in City of Akron, the relevant legal standards
with respect to parental consent requirements are not in dis-
pute. See ante, at 21; Bellotti V. Baird, 443 U.S. 622,
640-642, 643-644 (1979) (plurality opinion) (Bellotti II); id.,
at 656-657 (WHITE, J., dissenting). 15 A State's interest in
protecting immature minors will sustain a requirement of a
consent substitute, either parental or judicial. It is clear,
however, that "the State must provide an alternative proce-
dure whereby a pregnant minor may demonstrate that she is
sufficiently mature to make the abortion decision herself or
that, despite her immaturity, an abortion would be in her
best interests. 16 City of Akron, ante, at 21-22. 17 The issue
at 81. Missouri extends the identical safeguards found reassuring in
Danforth to the pathology reports at issue here. See Mo. Rev. Stat.
§§ 188.055.2, 188.060 (Supp. 1982).
15 The dissenters apparently believe that the issue here is an open one,
and adhere to the views they expressed in Bellotti II. Post, at 10-11.
But those views have never been adopted by a majority of this Court,
while a majority have expressed quite differing views. See H.L. V.
Matheson, 450 U. S. 398 (1981); Bellotti II, 443 U. S. 622 (plurality opin-
ion): id., at 656-657 (WHITE, J., dissenting).
16 The plurality in Bellotti II also required that the alternative to paren-
tal consent must "assure" that the resolution of this issue "will be com-
pleted with anonymity and sufficient expedition to provide an effective
opportunity for an abortion to be obtained." Id., at 644. Confidentiality
here is assured by the statutory requirement that allows the minor to use
her initials on the petition. Mo. Rev. Stat. § 188.028.2(1) (Supp. 1982).
As to expedition of appeals, § 188.028.2(6) provides in relevant part:
"The notice of intent to appeal shall be given within twenty-four hours from
the date of issuance of the order. The record on appeal shall be completed
and the appeal shall be perfected within five days from the filing of notice
to appeal. Because time may be of the essence regarding the performance
of the abortion, the supreme court of this state shall, by court rule, provide
81-1255 & 81-1623-OPINION
PLANNED PARENTHOOD ASSN. v. ASHCROFT
15
here is one purely of statutory construction: whether Mis-
souri provides a judicial alternative that is consistent with
these established legal standards. 18
The Missouri statute, § 188.028.2,19 in relevant part,
provides:
for expedited appellate review of cases appealed under this section."
We believe this section provides the framework for a constitutionally
sufficient means of expediting judicial proceedings. Immediately after the
effective date of this statutory enactment, the District Court enjoined en-
forcement. No unemancipated pregnant minor has been required to com-
ply with this section. Thus. to this point in time, there has been no need
for the state supreme court to promulgate rules concerning appellate re-
view. There is no reason to believe that Missouri will not expedite any
appeal consistent with the mandate in our prior opinions.
17 Cf. H.L. V. Matheson, 450 U. S., at 406-407, and n. 14. 411 (upholding
a parental notification requirement but not extending the holding to ma-
ture or emancipated minors or to immature minors showing such notifica-
tion detrimental to their best interests). The lower courts found that
§ 188.028's notice requirement was unconstitutional. 655 F. 2d, at 873: 483
F. Supp., at 701. The State has not sought review of that judgment here.
Thus, in the posture in which it appears before this Court for review,
§ 188.028 contains no requirement for parental notification.
18 The Missouri statute also exempts "emancipated" women under the
age of 18 both from the requirement of parental consent and from the alter-
native requirement of a judicial proceeding. Plaintiffs argue that the
word "emancipated" in this context is void for vagueness, but we disagree.
Cf. H.L. V. Matheson, supra, at 407 (using word to describe a minor). Al-
though the question whether a minor is emancipated turns upon the facts
and circumstances of each individual case, the Missouri courts have
adopted general rules to guide that determination, and the term is one of
general usage and understanding in the Missouri common law. See Black
V. Cole, 626 S. W. 2d 397, 398 (Mo. App. 1981) (quoting 67 C. J. S. Parent
and Child § 86, at 811 (1950)); In re the Marriage of Heddy, 535 S. W. 2d
276, 279 (Mo. App. 1976) (same); Wurth V. Wurth, 313 S. W. 2d 161, 164
(Mo. App. 1958) (same), rev'd on other grounds. 322 S. W. 2d 745 (Mo.
1959).
19 See n. 4, supra. This Court in Danforth held unconstitutional Missou-
ri's parental consent requirement for all unmarried minors under the age of
18. 428 U. S., at 75. In response to our decision, Missouri enacted the
section challenged here. This new statute became effective shortly before
our decision in Bellotti II.
81-1255 & 81-1623-OPINION
16
PLANNED PARENTHOOD ASSN. v. ASHCROFT
"(4) In the decree, the court shall for good cause:
"(a) Grant the petition for majority rights for the pur-
pose of consenting to the abortion; or
"(b) Find the abortion to be in the best interests of the
minor and give judicial consent to the abortion, setting
forth the grounds for so finding; or
"(c) Deny the petition, setting forth the grounds on
which the petition is denied[.
On its face, § 188.028.2(4) authorizes juvenile courts 20 to
choose among any of the alternatives outlined in the section.
The Court of Appeals concluded that a denial of the petition
permitted in subsection (c) "would initially require the court
to find that the minor was not emancipated and was not ma-
ture enough to make her own decision and that an abortion
was not in her best interests." 655 F. 2d, at 858. Plaintiffs
contend that this interpretation is unreasonable. We do not
agree.
Where fairly possible, courts should construe a statute to
avoid a danger of unconstitutionality. The Court of Appeals
was aware, if the statute provides discretion to deny permis-
sion to a minor for any "good cause," that arguably it would
violate the principles that this Court has set forth. Ibid. It
recognized, however, that before exercising any option, the
juvenile court must receive evidence on "the emotional devel-
opment, maturity, intellect and understanding of the minor."
Mo. Rev. Stat. § 188.028.2(3) (Supp. 1982). The court then
reached the logical conclusion that "findings and the ultimate
denial of the petition must be supported by a showing of 'good
cause." 655 F. 2d, at 858. The Court of Appeals reason-
20 We have indicated in prior opinions that a minor should have access to
an "independent decisionmaker." H.L. V. Matheson, supra. at 420 (Pow-
ELL, J., concurring). Missouri has provided for a judicial decisionmaker.
We therefore need not consider whether a qualified and independent non-
judicial decisionmaker would be appropriate. Cf. Bellotti II, 443 U.S., at
643, n. 22.
81-1255 & 81-1623-OPINION
PLANNED PARENTHOOD ASSN. v. ASHCROFT
17
ably found that a court could not deny a petition "for good
cause" unless it first found-after having received the re-
quired evidence-that the minor was not mature enough to
make her own decision. See Bellotti II, 443 U.S., at
643-644, 647-648 (plurality opinion). We conclude that the
Court of Appeals correctly interpreted the statute and that
§ 188.028, as interpreted, avoids any constitutional
infirmities.21
VI
The judgment of the Court of Appeals, insofar as it invali-
dated Missouri's second-trimester hospitalization require-
ment and upheld the State's parental and juducial consent
provision, is affirmed. The judgment invalidating the re-
quirement of a pathology report for all abortions and the re-
quirement that a second physician attend the abortion of any
viable fetus is reversed. We vacate the judgment upholding
an award of attorney's fees for all hours expended by plain-
tiffs' attorneys and remand for proceedings consistent with
Hensley V. Eckerhart, - U.S. (1983).
It is so ordered.
21 Plaintiffs also argue that, in light of the ambiguity of § 188.028.2(4), as
evidenced by the differing interpretations placed upon it, the appropriate
course of judicial restraint is abstention. This Court has found such an
approach appropriate. See Bellotti V. Baird. 428 U. S. 132, 146-147
(1976) (Bellotti D. Plaintiffs did not, however, argue in the Court of Ap-
peals that the court should abstain, and Missouri has no certification proce-
dure whereby this Court can refer questions of state statutory construction
to the state supreme court. See 655 F. 2d, at 861. n. 20; 17 C. Wright, A.
Miller & E. Cooper, Federal Practice and Procedure § 4248, at 525, n. 29
(1978 and Supp. 1982). Such a procedure "greatly simplifie[d]" our analy-
sis in Bellotti I, supra, at 151. Moreover, where. as here, a statute is sus-
ceptible to a fair construction that obviates the need to have the state
courts render the saving construction, there is no reason for federal courts
to abstain.
SUPREME COURT OF THE UNITED STATES
Nos. 81-1255 AND 81-1623
PLANNED PARENTHOOD ASSOCIATION OF
KANSAS CITY, MISSOURI, INC.,
ET AL., PETITIONERS
81-1255
v.
JOHN ASHCROFT, ATTORNEY GENERAL OF
MISSOURI, ET AL.
JOHN ASHCROFT, ATTORNEY GENERAL OF
MISSOURI, ET AL., PETITIONERS
81-1623
v.
PLANNED PARENTHOOD ASSOCIATION OF
KANSAS CITY, MISSOURI, INC.,
ET AL., PETITIONERS
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[June 15, 1983]
JUSTICE O'CONNOR, with whom JUSTICE WHITE and Jus-
TICE REHNQUIST join, concurring in part in the judgment and
dissenting in part.
For reasons stated in my dissent in No. 81-746, Akron V.
Akron Center for Reproductive Health and in No. 81-1172,
Akron Center for Reproductive Health V. Akron, I believe
that the second-trimester hospitalization requirement im-
posed by § 188.025 does not impose an undue burden on the
limited right to undergo an abortion. Assuming arguendo
that the requirement was an undue burden, it would never-
theless "reasonably relate[] to the preservation and protec-
81-1255 & 81-1623-OPINION
2
PLANNED PARENTHOOD ASSN. v. ASHCROFT
tion of maternal health." Roe V. Wade, 410 U. S. 113 , 163
(1973). I therefore dissent from the Court's judgment that
the requirement is unconstitutional.
I agree that second-physician requirement contained in
§ 188.030.3 is constitutional because the State possesses a
compelling interest in protecting and preserving fetal life,
but I believe that this state interest is extant throughout
pregnancy. I therefore concur in the judgment of the Court.
I agree that pathology-report requirement imposed by
§ 188.047 is constitutional because it imposes no undue bur-
den on the limited right to undergo an abortion. Because I
do not believe that the validity of this requirement is contin-
gent in any way on the trimester of pregnancy in which it is
imposed, I concur in the judgment of the Court.
Assuming arguendo that the State cannot impose a paren-
tal veto on the decision of a minor to undergo an abortion, I
agree that the parental consent provision contained in
§ 188.028.2 is constitutional. However, I believe that the
provision is valid because it imposes no undue burden on any
right that a minor may have to undergo an abortion. I con-
cur in the judgment of the Court on this issue.
I also concur in the Court's decision to vacate and remand
on the issue of attorney's fees in light of Hensley V.
Eckerhart, - U.S. (1983).
SUPREME COURT OF THE UNITED STATES
Nos. 81-1255 AND 81-1623
PLANNED PARENTHOOD ASSOCIATION OF
KANSAS CITY, MISSOURI, INC.,
ET AL., PETITIONERS
81-1255
v.
JOHN ASHCROFT, ATTORNEY GENERAL OF
MISSOURI, ET AL.
JOHN ASHCROFT, ATTORNEY GENERAL OF
MISSOURI, ET AL., PETITIONERS
81-1623
v.
PLANNED PARENTHOOD ASSOCIATION OF
KANSAS CITY, MISSOURI, INC., ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[June 15, 1983]
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUS-
TICE MARSHALL, and JUSTICE STEVENS join, concurring in
part and dissenting in part.
The Court's decision today in Akron V. Akron Center for
Reproductive Health, Inc., ante, invalidates the city of
Akron's hospitalization requirement and a host of other pro-
visions that infringe on a woman's decision to terminate her
pregnancy through abortion. I agree that Missouri's hos-
pitalization requirement is invalid under the Akron analysis,
and I join Parts I and II of JUSTICE POWELL'S opinion in the
present cases. I do not agree, however, that the remaining
81-1255 & 81-1623-CONCUR & DISSENT
2
PLANNED PARENTHOOD ASSN. v. ASHCROFT
Missouri statutes challenged in these cases satisfy the con-
stitutional standards set forth in Akron and the Court's prior
decisions.
I
Missouri law provides that whenever an abortion is per-
formed, a tissue sample must be submitted to a "board eligi-
ble or certified pathologist" for a report. Mo. Rev. Stat.
§ 188.047 (1983). This requirement applies to first trimester
abortions as well as to those performed later in pregnancy.
Our past decisions establish that the performance of abor-
tions during the first trimester must be left "'free of inter-
ference by the State." Akron, ante, at 12, quoting Roe
V. Wade, 410 U.S. 113, 163 (1973). As we have noted in
Akron, this does not mean that every regulation touching
upon first-trimester abortions is constitutionally impermissi-
ble. But to pass constitutional muster, regulations affecting
first-trimester abortions must "have no significant impact on
the woman's exercise of her right" and must be "justified by
important state health objectives." Akron, ante, at 11; see
ante, at 13.
Missouri's requirement of a pathologist's report is not justi-
fied by important health objectives. Although pathology
examinations may be "useful and even necessary in some
cases," ante, at 10, Missouri requires more than a pathology
examination and a pathology report; it demands that the
examination be performed and the report prepared by a
"board eligible or certified pathologist" rather than by the at-
tending physician. Contrary to JUSTICE POWELL'S asser-
tion, ante, at 10, this requirement of a report by a pathologist
is not in accord with "generally accepted medical standards."
The routine and accepted medical practice is for the attend-
ing physician to perform a gross (visual) examination of any
tissue removed during an abortion. Only if the physician de-
tects abnormalities is there a need to send a tissue sample to
a pathologist. The American College of Obstetricians and
81-1255 & 81-1623-CONCUR & DISSENT
PLANNED PARENTHOOD ASSN. v. ASHCROFT
3
Gynecologists (ACOG) does not recommend an examination
by a pathologist in every case:
"In the situation of elective termination of pregnancy,
the attending physician should record a description of
the gross products. Unless definite embryonic or fetal
parts can be identified, the products of elective interrup-
tions of pregnancy must be submitted to a pathologist for
gross and microscopic examination.
"
Aspirated tissue should be examined to ensure
the presence of villi or fetal parts prior to the patient's
release from the facility. If villi or fetal parts are not
identified with certainty, the tissue specimen must be
sent for further pathologic examination.
"
ACOG,
Standards for Obstetric-Gynecologic Services 52, 54
(1982).¹
Nor does the National Abortion Federation believe that such
an examination is necessary:
"All tissue must be examined grossly at the time of the
abortion procedure by a physician or trained assistant
and the results recorded in the chart. In the absence of
visible fetal parts or placenta upon gross examination,
obtained tissue may be examined under a low power mi-
croscope for the detection of villi. If this examination is
inconclusive, the tissue should be sent to the nearest
suitable pathology laboratory for microscopic examina-
1 See also ACOG, Standards for Obstetric-Gynecologic Services 66
(1982):
"Tissue removed should be submitted to a pathologist for examina-
tion.
An exception to the practice may be in elective terminations of
pregnancy in which definitive embryonic or fetal parts can be identified.
In such instances, the physician should record a description of the gross
products. Unless definite embryonic or fetal parts can be identified, the
products of elective interruptions of pregnancy must be submitted to a pa-
thologist for gross and microscopic examination."
81-1255 & 81-1623-CONCUR & DISSENT
4
PLANNED PARENTHOOD ASSN. V. ASHCROFT
tion." National Abortion Federation Standards 6 (1981)
(emphasis deleted).
As the Court of Appeals pointed out, there was expert tes-
timony at trial that a nonpathologist physician is as capable of
performing an adequate gross examination as is a patholo-
gist, and that the "abnormalities which are of concern". are
readily detectable by a physician. 655 F. 2d 848, 871, n. 37
(CA8 1981); see App. 135.2 While a pathologist may be bet-
ter able to perform a microscopic examination, Missouri law
does not require a microscopic examination unless "fetal
parts or placenta are not identified." 13 Mo. Admin. Code
§ 50-151.030(1) (1981). Thus, the effect of the Missouri stat-
ute is to require a pathologist to perform the initial gross
examination, which is normally the responsibility of the at-
tending physician and which will often make the pathologist's
services unnecessary.
On the record before us, I must conclude that the State has
not "met its burden of demonstrating that [the pathologist re-
quirement] further[s] important health-related State con-
cerns." Akron, ante, at 12.³ There has been no showing
that tissue examinations by a pathologist do more to protect
health than examinations by a nonpathologist physician.
Missouri does not require pathologists' reports for any other
surgical procedures performed in clinics, or for minor sur-
gery performed in hospitals. 13 Mo. Admin. Code § 50-
20.030(3)(A)(7) (1977). Moreover, I cannot agree with JUS-
TICE POWELL that Missouri's pathologist requirement has
"no significant impact" ante, at 13, on a woman's exercise of
The District Court made no findings on this point, noting only that
some witnesses for the State had testified that "pathology should be done"
for every abortion. 483 F. Supp. 679, 700, n. 49 (WD Mo. 1980).
¹JUSTICE POWELL appears to draw support from the facts that "ques-
tionable practices" occur at some abortion clinics, while at others "the
standards of medical practice
may not be the highest." Ante, at 12. n.
12. There is no evidence. höwever, that such questionable practices occur
in Missouri.
81-1255 & 81-1623-CONCUR & DISSENT
PLANNED PARENTHOOD ASSN. v. ASHCROFT
5
her right to an abortion. It is undisputed that this require-
ment may increase the cost of a first-trimester abortion by as
much as $40. See 483 F. Supp., at 700, n. 48. Although this
increase may seem insignificant from the Court's comfortable
perspective, I cannot say that it is equally insignificant to
every woman seeking an abortion. For the woman on wel-
fare or the unemployed teenager, this additional cost may
well put the price of an abortion beyond reach.4 Cf. Harper
V. Virginia Board of Elections, 383 U.S. 663, 668 (1966)
($1.50 poll tax "excludes those unable to pay"); Burns V.
Ohio, 360 U. S. 252, 255, 257 (1959) ($20 docket fee "fore-
close[s] access" to appellate review for indigents).
In Planned Parenthood of Central Mo. V. Danforth, 428
U. S. 52, 81 (1976), the Court warned that the minor record-
keeping requirements upheld in that case "perhaps ap-
proach[ed] impermissible limits." -Today in Akron, we have
struck down restrictions on first-trimester abortions that
"may in some cases add to the cost of providing abortions."
Ante, at 30; see ante, at 31-32. Missouri's requirement of a
pathologist's report unquestionably adds significantly to the
cost of providing abortions, and Missouri has not shown that
it serves any substantial health-related purpose. Under
these circumstances, I would hold that constitutional limits
have been exceeded.
II
In Missouri, an abortion may be performed after viability
only if necessary to preserve the life or health of the woman.
A $40 pathologist's fee may increase the price of a first-trimester abor-
tion by 20% or more. See 655 F. 2d, at 869, n. 35 (cost of first-trimester
abortion at Reproductive Health Services is $170); F. Jaffe, B. Lindheim,
and P. Lee, Abortion Politics: Private Morality and Public Policy 36 (1981)
(cost of first-trimester clinic abortion ranges from approximately $185
to $235); Henshaw, Freestanding Abortion Clinics: Services, Structure,
Fees, 14 Family Planning Perspectives 248, 255 (1982) (average cost of
first-trimester clinic abortion is $190): NAF Membership Directory 18-19
(1982/1983) (NAF clinics in Missouri charge $180 to $225 for first-trimester
abortion).
81-1255 & 81-1623-CONCUR & DISSENT
6
PLANNED PARENTHOOD ASSN. v. ASHCROFT
Mo. Rev. Stat. § 188.030.1 (1983). When a post-viability
abortion is performed, Missouri law provides. that "there
[must be] in attendance a [second] physician
who shall
take control of and provide immediate medical care for a child
born as a result of the abortion." Mo. Rev. Stat. § 188.030.3
(1983). The Court recognized in Roe V. Wade, 410 U.S., at
164-165, that a State's interests in preserving maternal
health and protecting the potentiality of human life may jus-
tify regulation and even prohibition of post-viability abor-
tions, except those necessary to preserve the life and health
of the mother. But regulations governing post-viability
abortions, like those at any other stage of pregnancy, must
be "tailored to the recognized state interests." Id., at 165;
see H.L. V. Matheson, 450 U. S. 398, 413 (1981) ("statute
plainly serves important state interests, [and] is narrowly
drawn to protect only those interests"); Roe, 410 U.S., at
155 ("legislative enactments must be narrowly drawn to ex-
press only the legitimate state interests at stake").
A
The second physician requirement is upheld in this case on
the basis that it "reasonably furthers the State's compelling
interest in protecting the lives of viable fetuses." Ante, at 9.
While I agree that a second physician indeed may aid in pre-
serving the life of a fetus born alive, this type of aid is possi-
ble only when the abortion method used is one that may re-
sult in a live birth. Although Missouri ordinarily requires a
physician performing a post-viability abortion to use the
abortion method most likely to preserve fetal life, this re-
striction does not apply when this method "would present a
greater risk to the life and health of the woman." Mo. Rev.
Stat. § 188.030.2 (1983).
The District Court found that the dilatation and evacuation
(D&E) method of abortion entails no chance of fetal survival,
and that it will nevertheless be the method of choice for some
women who need post-viability abortions. In some cases, in
81-1255 & 81-1623-CONCUR & DISSENT
PLANNED PARENTHOOD ASSN. v. ASHCROFT
7
other words, maternal health considerations will preclude the
use of procedures that might result in a live birth. 483 F.
Supp., at 694.5 When a D&E abortion is performed, the
second physician can do nothing to further the State's com-
pelling interest in protecting potential life. His presence
is superfluous. The second-physician requirement thus is
overbroad and "imposes a burden on women in cases where
the burden is not justified by any possibility of survival of the
fetus." 655 F. 2d, at 865-866.
JUSTICE POWELL apparently believes that the State's in-
terest in preserving potential life justifies the State in requir-
ing a second physician at all post-viability abortions because
some methods other than D&E may result in live births.
But this fact cannot justify requiring a second physician to at-
tend an abortion at which the chance of a live birth is nonexis-
tent. The choice of method presumably will be made in ad-
The District Court relied on the testimony of Doctors Robert Crist and
Richard Schmidt. Doctor Crist testified that in some instances abortion
methods other than D&E would be "absolutely contraindicated" by the
woman's health condition, 2 Record 438-439, giving the example of a recent
patient with hemolytic anemia that would have been aggravated by the use
of prostaglandins or other labor-inducing abortion methods, id., at 428.
Doctor Schmidt testified that "[t]here very well may be" situations in
which D&E would be used because other methods were contraindicated.
4 Record 836. Although Doctor Schmidt previously had testified that a
post-viability D&E abortion was "almost inconceivable," this was in re-
sponse to a question by the State's attorney regarding whether D&E
would be used "[a]bsent the possibility that there is extreme contraindica-
tion for the use of prostaglandins or saline, or of hysterotomy." Id., at
787. Any inconsistencies in Doctor Schmidt's testimony apparently were
resolved by the District Court in the plaintiffs' favor.
The Court of Appeals upheld the District Court's factual finding that
health reasons sometimes would require the use of D&E for post-viability
abortions. 665 F. 2d, at 865. Absent the most exceptional circum-
stances, we do not review a District Court's factual findings in which the
Court of Appeals has concurred. Branti V. Finkel, 445 U. S. 507, 512, n.
6 (1980).
81-1255 & 81-1623-CONCUR & DISSENT
8
PLANNED PARENTHOOD ASSN. v. ASHCROFT
vance,⁶ and any need for a second physician disappears when
the woman's health requires that the choice be D&E. Be-
cause the statute is not tailored to protect the State's legiti-
mate interests, I would hold it invalid.¹
B
In addition, I would hold that the statute's failure to pro-
vide a clear exception for emergency situations renders it un-
constitutional. As JUSTICE POWELL recognizes, ante, at 8,
n. 8, an emergency may arise in which delay could be danger-
ous to the life or health of the woman. A second physician
may not always be available in such a situation; yet the stat-
ute appears to require one. It states, in unqualified terms,
that a post-viability abortion "shall be performed
only
when there is in attendance" a second physician who "shall
take control of" any child born as a result of the abortion, and
it imposes certain duties on "the physician required by this
6 In addition to requiring the physician to select the method most likely
to preserve fetal life, so long as it presents no greater risk to the pregnant
woman, Missouri requires that the physician "certify in writing the avail-
able method or techniques considered and the reasons for choosing the
method or technique employed." Mo. Rev. Stat. § 188.030.2 (1983). This
ensures that the choice of method will be a reasoned one.
The State argues that its second-physician requirement is justified
even when D&E is used, because "[i]f the statute specifically excepted
D&E procedures, abortionists would be encouraged to use it more fre-
quently to avoid the expense of a second physician, to ensure a dead fetus.
to prevent the presence of a second professional to observe malpractice or
the choice of a questionable procedure from a safety viewpoint, a fetus-
destroying procedure, or to avoid their own awakening to concern for the
newborn." Brief for Cross-Petitioners in No. 81-1623, p. 44. The Court
rejected this purported justification for a second physician in Doe V.
Bolton, 410 U. S. 179, 199 (1973): "If a physician is licensed by the State,
he is recognized by the State as capable of exercising acceptable clinical
judgment. If he fails in this, professional censure and deprivation of his
license are available remedies. Required acquiescence by co-practitioners
has no rational connection with a patient's needs and unduly infringes on
the physician's right to practice."
81-1255 & 81-1623-CONCUR & DISSENT
PLANNED PARENTHOOD ASSN. v. ASHCROFT
9
section to be in attendance." Mo. Rev. Stat. § 188.030.3
(emphasis added). By requiring the attendance of a second
physician even when the resulting delay may be harmful to
the health of the pregnant woman, the statute impermissibly
fails to make clear "that the woman's life and health must al-
ways prevail over the fetus' life and health when they con-
flict." Colautti V. Franklin, 439 U. S. 379, 400 (1979).
JUSTICE POWELL attempts to cure this defect by asserting
that the final clause of the statute, requiring the two physi-
cians to "take all reasonable steps
to preserve the life and
health of the viable unborn child; provided that it does not
pose an increased risk to the life or health of the woman,"
could be construed to permit emergency post-viability abor-
tions without a second physician. Ante, at 8, n. 8. This
construction is contrary to the plain language of the statute;
the clause upon which JUSTICE POWELL relies refers to the
duties of both physicians during the performance of the abor-
tion, but it in no way suggests that the second physician may
be dispensed with.
Moreover, since JUSTICE POWELL's proposed construction
is not binding on the courts of Missouri,* a physician per-
forming an emergency post-viability abortion cannot rely on
it with any degree of confidence. The statute thus remains
impermissibly vague; it fails to inform the physician whether
he may proceed with a post-viability abortion in an emer-
gency, or whether he must wait for a second physician even if
the woman's life or health will be further imperiled by the de-
lay. This vagueness may well have a severe chilling effect
on the physician who perceives the patient's need for a post-
viability abortion. In Colautti V. Franklin, we considered a
statute that failed to specify whether it "require[d] the physi-
*"Only the [Missouri] courts can supply the requisite construction. since
of course 'we lack jurisdiction authoritatively to construe state legisla-
tion." Gooding V. Wilson, 405 U. S. 518, 520 (1972), quoting United
States V. Thirty-seven Photographs, 402 U. S. 363, 369 (1971).
81-1255 & 81-1623-CONCUR & DISSENT
10
PLANNED PARENTHOOD ASSN. v. ASHCROFT
cian to make a 'trade-off' between the woman's health and ad-
ditional percentage points of fetal survival." 439 U.S., at
400. The Court held there that "where conflicting duties of
this magnitude are involved, the State, at the least, must
proceed with greater precision before it may subject a physi-
cian to possible criminal sanctions." Id., at 400-401.9 I
would apply that reasoning here, and hold Missouri's second-
physician requirement invalid on this ground as well.10
III
Missouri law prohibits the performance of an abortion on
an unemancipated minor absent parental consent or a court
order. Mo. Rev. Stat. § 188.028 (1983).
Until today, the Court has never upheld "a requirement of
a consent substitute, either parental or judicial," ante, at 14.
In Planned Parenthood of Central Mo. V. Danforth, 428
U. S., at 74, the Court invalidated a parental consent re-
quirement on the ground that "the State does not have the
9 A physician who fails to comply with Missouri's second-physician re-
quirement faces criminal penalties and the loss of his license. Mo. Rev.
Stat. §§ 188.065, 188.075 (1983).
10 Because I would hold the statute unconstitutional on these grounds.
I do not reach the question whether Missouri's second-physician require-
ment impermissibly interferes with the doctor-patient relationship. I
note. however, that Missouri does not require attendance of a second phy-
sician at any other medical procedure. including a premature birth. There
was testimony at trial that a newborn infant. whether the product of a nor-
mal birth or an abortion, ordinarily remains the responsibility of the wom-
an's physician until he turns its care over to another. App. 133: see
ACOG, Standards for Obstetric-Gynecologic Services 31 (1982) ("The indi-
vidual who delivers the baby is responsible for the immediate post-delivery
care of the newborn until another person assumes this duty").
This allocation of responsibility makes sense. Consultation and team-
work are fundamental in medical practice. but in an operating room a pa-
tient's life or health may depend on split-second decisions by the physician.
If responsibility and control must be shared between two physicians with
the lines of authority unclear. precious moments may be lost to the detri-
ment of both woman and child.
81-1255 & 81-1623-CONCUR & DISSENT
PLANNED PARENTHOOD ASSN. v. ASHCROFT
11
constitutional authority to give a third party an absolute, and
possibly arbitrary, veto over the decision of the physician and
his patient, regardless of the reason for withholding the con-
sent." In Bellotti V. Baird, 443 U. S. 622 (1979) (Bellotti II),
eight Justices agreed that a Massachusetts statute permit-
ting a judicial veto of a mature minor's decision to have an
abortion was unconstitutional. See id., at 649-650 (opinion
of POWELL, J.); id., at 654-656 (opinion of STEVENS, J.). Al-
though four Justices stated in Bellotti II that an appropri-
ately structured judicial consent requirement would be con-
stitutional, id., at 647-648 (opinion of POWELL, J.), this
statement was not necessary to the result of the case and did
not command a majority. Four other Justices concluded
that any judicial-consent statute would suffer from the same
flaw the Court identified in Danforth: it would give a third
party an absolute veto over the decision of the physician and
his patient. Id., at 655-656 (opinion of STEVENS. J.).
I continue to adhere to the views expressed by JUSTICE
STEVENS in Bellotti II:
"It is inherent in the right to make the abortion decision
that the right may be exercised without public scrutiny
and in defiance of the contrary opinion of the sovereign
or other third parties
As a practical matter, I would
suppose that the need to commence judicial proceedings
in order to obtain a legal abortion would impose a burden
at least as great as, and probably greater than, that im-
posed on the minor child by the need to obtain the con-
sent of the parent. Moreover, once this burden is met.
the only standard provided for the judge's decision is the
best interest of the minor. That standard provides little
real guidance to the judge, and his decision must neces-
sarily reflect personal and societal values and mores
whose enforcement upon the minor-particularly when
contrary to her own informed and reasonable decision—
is fundamentally at odds with privacy interests underly-
81-1255 & 81-1623-CONCUR & DISSENT
12
PLANNED PARENTHOOD ASSN. v. ASHCROFT
ing the constitutional protection afforded to her deci-
sion." 443 U.S., at 655-656 (footnote omitted).
Because Mo. Rev. Stat. § 188.028 permits a parental or judi-
cial veto of a minor's decision to obtain an abortion, I would
hold it unconstitutional.
NOTE: Where it is feasible. a syllabus (headnote) will be released. as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been pre-
pared by the Reporter of Decisions for the convenience of the reader. See
United States V. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
SIMOPOULOS v. VIRGINIA
APPEAL FROM THE SUPREME COURT OF VIRGINIA
No. 81-185. Argued November 30, 1982-Decided June 15, 1983
Appellant, an obstetrician-gynecologist, was convicted after a Virginia
state-court trial for violating Virginia statutory provisions that make it
unlawful to perform an abortion during the second trimester of preg-
nancy outside of a licensed hospital. "Hospital" is defined to include
outpatient hospitals, and State Department of Health regulations define
"outpatient hospital" as including institutions that primarily furnish facil-
ities for the performance of surgical procedures on outpatients. The
regulations also provide that second-trimester abortions may be per-
formed in an outpatient surgical clinic licensed as a "hospital" by the
State. The evidence at appellant's trial established, inter alia, that he
performed a second-trimester abortion on an unmarried minor by an in-
jection of saline solution at his unlicensed clinic; that the minor under-
stood appellant to agree to her plan to deliver the fetus in a motel and did
not recall being advised to go to a hospital when labor began, although
such advice was included in an instruction sheet provided her by appel-
lant; and that the minor, alone in a motel, aborted her fetus 48 hours
after the saline injection. The Virginia Supreme Court affirmed appel-
lant's conviction.
Held:
1. The Virginia abortion statute was not unconstitutionally applied to
appellant on the asserted ground that the State failed to allege in the in-
dictment and to prove lack of medical necessity for the abortion. Under
the authoritative construction of the statute by the Virginia Supreme
Court, the prosecution was not obligated to prove lack of medical neces-
sity beyond a reasonable doubt until appellant invoked medical necessity
as a defense. Placing upon the defendant the burden of going forward
with evidence on an affirmative defense is normally permissible. And
appellant's contention that the prosecution failed to prove that his acts in
fact caused the fetus' death is meritless, in view of the undisputed facts
proved at trial. Pp. 3-4.
I
II
SIMOPOULOS v. VIRGINIA
Syllabus
2. Virginia's requirement that second-trimester abortions be per-
formed in licensed outpatient clinics is not an unreasonable means of fur-
thering the State's important and legitimate interest in protecting the
woman's health, which interest becomes "compelling" at approximately
the end of the first trimester. In Akron V. Akron Center for Reproduc-
tive Health, Inc., ante, p. — and Planned Parenthood Assn. of Kan-
sas City V. Ashcroft, ante, p. - constitutional challenges were upheld
with regard to requirements mandating that all second-trimester abor-
tions be performed in "general, acute-care facilities." In contrast, the
Virginia statutes and regulations do not require that such abortions be
performed exclusively in full-service hospitals, but permit their perform-
ance at licensed outpatient clinics. Thus, the decisions in Akron and
Ashcroft are not controlling here. Although a State's discretion in
determining standards for the licensing of medical facilities does not per-
mit it to adopt abortion regulations that depart from accepted medical
practice, the Virginia regulations on their face are compatible with ac-
cepted medical standards governing outpatient second-trimester abor-
tions. Pp. 4-13.
221 Va. 1059, 227 S. E. 2d 194, affirmed.
POWELL, J., delivered the opinion of the Court, in which BURGER, C. J.,
and BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, and in Parts I and
II of which WHITE, REHNQUIST. and O'CONNOR. JJ., joined. O'CONNOR,
J., filed an opinion concurring in part and concurring in the judgment, in
which WHITE and REHNQUIST. JJ., joined. STEVENS, J., filed a dissent-
ing opinion.
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions. Supreme Court of the United States. Wash-
ington. D. C. 20543. of any typographical or other formal errors. in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 81-185
CHRIS SIMOPOULOS, APPELLANT v. VIRGINIA
ON APPEAL FROM THE SUPREME COURT OF VIRGINIA
[June 15, 1983]
JUSTICE POWELL delivered the opinion of the Court.
We have considered today mandatory hospitalization re-
quirements for second-trimester abortions in City of Akron
V. Akron Center for Reproductive Health, Inc., ante, p.
,
and Planned Parenthood Assn. of Kansas City, Mo., Inc. V.
Ashcroft, ante, p.
-
The principal issue here is whether
Virginia's mandatory hospitalization requirement is constitu-
tional.
I
Appellant is a practicing obstetrician-gynecologist certified
by the American Board of Obstetrics and Gynecology. In
November, 1979, he practiced at his office in Woodbridge,
Virginia, at four local hospitals, and at his clinic in Falls
Church, Virginia. The Falls Church clinic has an operating
room and facilities for resuscitation and emergency treat-
ment of cardiac/respiratory arrest. Replacement and sta-
bilization fluids are on hand. Appellant customarily per-
forms first-trimester abortions at his clinic. During the time
relevant to this case, the clinic was not licensed, nor had ap-
pellant sought any license for it.
P.M. was a 17-year old high-school student when she went
to appellant's clinic on November 8, 1979. She was unmar-
ried, and told appellant that she was approximately 22 weeks
pregnant. She requested an abortion but did not want her
parents to know. Examination by appellant confirmed that
81-185-OPINION
2
SIMOPOULOS v. VIRGINIA
P.M. was five months pregnant, well into the second trimes-
ter. Appellant testified that he encouraged her to confer
with her parents and discussed with her the alternative of
continuing the pregnancy to term. She did return home, but
never advised her parents of her decision.
Two days later, P.M. returned to the clinic with her boy
friend. The abortion was performed by an injection of saline
solution. P.M. told appellant that she planned to deliver the
fetus in a motel, and understood him to agree to this course.
Appellant gave P.M. a prescription for an analgesic and a
"Post-Injection Information" sheet that stated that she had
undergone "a surgical procedure" and warned of a "wide
range of normal reactions." App. 199. The sheet also ad-
vised that she call the physician if "heavy" bleeding began.
Although P.M. did not recall being advised to go to a hospital
when labor began, this was included on the instruction sheet.
Id., at 200.
P.M. went to a motel. Alone, she aborted her fetus in the
motel bathroom 48 hours after the saline injection. She left
the fetus, follow-up instructions, and pain medication in the
wastebasket at the motel. Her boy friend took her home.
Police found the fetus later that day and began an investiga-
tion.¹
Appellant was indicted² for unlawfully performing an
abortion during the second trimester of pregnancy outside of
I Except as permitted by statute, persons performing an abortion are
guilty of a Class 4 felony under Virginia law and subject to mandatory li-
cense revocation. Va. Code §§ 18.2-71, 54-316(3), 54-317(1), 54.321.2
(1982). A Class 4 felony is punishable by a sentence of two to ten years in
prison. Va. Code § 18.2-10(d).
The indictment alleges a violation of Va. Code § 18.2-71. which
provides:
"Except as provided in other sections of this article, if any person admin-
ister to, or cause to be taken by a woman, any drug or other thing, or use
means, with intent to destroy her unborn child, or to produce abortion or
miscarriage. and thereby destroy such child, or produce such abortion or
81-185-OPINION
SIMOPOULOS v. VIRGINIA
3
a licensed hospital and was convicted by the Circuit Court of
Fairfax County sitting without a jury. The Supreme Court
of Virginia unanimously affirmed the conviction. Simop-
oulos V. Commonwealth, 221 Va. 1059, 277 S. E. 2d 194
(1981). This appeal followed. We noted probable jurisdic-
tion, 456 U. S. 988, and now affirm.
II
Appellant raises two issues that do not require extended
treatment. He first contends that Va. Code § 18.2-71 was
applied unconstitutionally to him, because lack of medical ne-
cessity for the abortion was not alleged in the indictment, ad-
dressed in the prosecution's case, or mentioned by the trier of
fact. Appellant contends that this failure renders his convic-
tion unconstitutional for two reasons: (i) the State failed to
meet its burden of alleging necessity in the indictment, as re-
quired by United States V. Vuitch, 402 U. S. 62 (1971); and
(ii) the prosecution failed to meet its burden of persuasion, as
required by Patterson V. New York, 432 U. S. 197 (1977).
The authoritative construction of § 18.2-71 by the Supreme
Court of Virginia makes it clear that, at least with respect to
the defense of medical necessity, the prosecution was not ob-
ligated to prove lack of medical necessity beyond a reason-
able doubt until appellant invoked medical necessity as a
defense. See 221 Va., at 1069, 277 S. E. 2d, at 200. Appel-
lant's reliance on Vuitch thus is misplaced: the District of Co-
miscarriage, he shall be guilty of a Class 4 felony."
The Virginia Code sets forth four exceptions to this statute: there is no
criminal liability if the abortion (i) is performed within the first trimester,
§ 18.2-72; (ii) is performed in a licensed hospital in the second trimester,
§ 18.2-73; (iii) is performed during the third trimester under certain cir-
cumstances, § 18.2-74; and (iv) is necessary to save the woman's life,
§ 18.2-74.1. The indictment here alleged a violation of § 18.2-71 and ex-
pressly negated any defense of hospitalization under § 18.2-73 and any
first-trimester defense under § 18.2-72. The indictment did not, however,
rebut the other defenses.
81-185-OPINION
4
SIMOPOULOS v. VIRGINIA
lumbia statute in Vuitch, as construed by this Court, re-
quired the prosecution to make this allegation. See 402
U.S., at 70. Placing upon the defendant the burden of go-
ing forward with evidence on an affirmative defense is nor-
mally permissible. See Engle V. Isaac, 456 U.S. 107,
120-121, and n. 20 (1982); Mullaney V. Wilbur, 421 U. S. 684,
701-703, nn. 28, 30, 31 (1975).
Appellant also contends that the prosecution failed to
prove that his acts in fact caused the death of the fetus. In
view of the undisputed facts proved at trial, summarized
above, this contention is meritless. See 221 Va., at 1069-
1070, 277 S. E. 2d, at 200-201.
III
We consistently have recognized and reaffirm today that a
State has an "important and legitimate interest in the health
of the mother" that becomes "compelling"
at approxi-
mately the end of the first trimester." Roe V. Wade, 410
U. S. 113, 163 (1973). See City of Akron, ante, at 10. This
interest embraces the facilities and circumstances in which
abortions are performed. See id., at 150. Appellant ar-
gues, however, that Virginia prohibits all non-hospital sec-
ond-trimester abortions and that such a requirement imposes
an unconstitutional burden on the right of privacy. In City
of Akron and Ashcroft, we upheld such a constitutional chal-
lenge to the acute-care hospital requirements at issue there.
The State of Virginia argues here that its hospitalization re-
quirement differs significantly from the hospitalization re-
quirements considered in City of Akron and Ashcroft and
that it reasonably promotes the State's interests.
A
In furtherance of its compelling interest in maternal
health, Virginia has enacted a hospitalization requirement for
abortions performed during the second trimester. As a gen-
eral proposition, physicians' offices are not regulated under
81-185-OPINION
SIMOPOULOS v. VIRGINIA
5
Virginia law.³ Virginia law does not, however, permit a
physician licensed in the practice of medicine and surgery to
perform an abortion during the second trimester of preg-
nancy unless "such procedure is performed in a hospital li-
censed by the State Department of Health." Va. Code
§ 18.2-73 (1982). The Virginia abortion statute itself does
not define the term "hospital." This definition is found in
Va. Code § 32.1-123.1,* that defines "hospital" to include
3 A physician's office is explicitly excluded from the hospital licensing
statutes and regulations unless the office is used principally for performing
surgery. Va. Code § 32.1-124(5). "Surgery" is not defined. Appellant
contends that whether his facility principally performs surgery is a ques-
tion of fact that has not been resolved. and that it is uncertain whether his
clinic may be licensed as a "hospital." He notes that after he performed
the abortion on P.M. he requested a certificate of need, see id.,
§ 32.1-102.3, but was informed by the Office of the Attorney General that
his "clinic-office cannot be licensed as a hospital" and that "if you wish to
perform this type of procedure, you must, in essence, build a hospital to do
it." App. to Reply Brief for Appellant 3a, 4a. Appellant did not seek a
license before he performed the abortion at issue here, nor does he now
argue that his clinic would meet the requirements of the Virginia statute
and regulations. Rather, he broadly attacks the validity of the state hos-
pitalization requirements as applied to second-trimester abortions. Thus,
it is irrelevant to the issue before us whether appellant's clinic and his pro-
cedures would have complied with the Virginia regulations.
The Supreme Court of Virginia views the word "hospital" in § 18.2-73
as referring to the definition of that term in § 32.1-123.1. This is made
clear by the court's general reference in its opinion to title 32.1 of the Vir-
ginia Code, the title of the Code that contains many of Virginia's health
laws:
"The state is empowered to license and regulate hospitals, clinics, home
health agencies, and other medical care facilities, see generally, Title 32.1
of the Code, and to fix and enforce different standards of medical care for
different facilities. The General Assembly has decided that medical proce-
dures employed in second-trimester abortions must be performed in hospi-
tals. Based upon the evidence in this record, we are of the opinion that
the hospital requirement is reasonably related to the State's compelling in-
terest in preserving and protecting maternal health." 221 Va., at 1075.
277 S. E. 2d. at 204.
81-185-OPINION
6
SIMOPOULOS v. VIRGINIA
"outpatient
hospitals."
Section 20.2.11 of the Depart-
ment of Health's Rules and Regulations for the Licensure of
Outpatient Hospitals in Virginia (1977) ("regulations") de-
fines outpatient hospital in pertinent part as "[i]nstitutions
There is no basis for assuming that the court interpreted "hospital" in
§ 18.2-73 any differently from its interpretation in title 32.1, and specifi-
cally in § 32.1-123.1. See n. 5, infra.
-5 Section 32.1-123.1 provides:
"Hospital" means any facility in which the primary function is the provi-
sion of diagnosis, of treatment, and of medical and nursing services, surgi-
cal or nonsurgical, for two or more nonrelated individuals, including hospi-
tals known by varying nomenclature or designation such as sanatoriums,
sanitariums and general, acute, short-term, long-term. outpatient and
maternity hospitals."
The definition of hospital in effect in 1975 when § 18.2-73 was enacted is
similar. See Va. Code § 32.298(2) (1973) (repealed by 1979 Acts, c. 711).
It specifically included at that time "out-patient surgical hospitals (which
term shall not include the office or offices of one or more physicians or
surgeons unless such office or offices are used principally for performing
surgery)."
The regulations were promulgated pursuant to the State Board of
Health's general authority to adopt rules and regulations prescribing mini-
mum standards for hospitals. This authority permits it to
"classify hospitals in accordance with the character of treatment, care. or
service rendered or offered, and prescribe the minimum standards and re-
quirements for each class in conformity with provisions of this chapter,
with the guiding principles expressed or implied herein, and with due re-
gard to and in reasonable conformity to the standards of health, hygiene,
sanitation, and safety as established and recognized by the medical profes-
sion and by specialists in matters of public health and safety, having due
regard to the availability of physicians, surgeons, nurses and other assis-
tants, and the cost and expense to the hospital and the resulting costs to
the patients." Va. Code § 32-301 (1973) (repealed by 1979 Acts, C. 711)
(similar rulemaking authority currently is granted in Va. Code §§ 32.1-12
and 32.1-127 (1979)).
The first draft of the regulations differed considerably from the regula-
tions that the Board finally approved. See Department of Health, Draft I,
Rules and Regulations for the Licensure of Outpatient Hospitals in Vir-
ginia (October 27, 1976). The most important difference was that the re-
quirements now in Part II of the regulations were applicable to all outpa-
81-185-OPINION
SIMOPOULOS v. VIRGINIA
7
which primarily provide facilities for the performance of
surgical procedures on outpatients" and provides that sec-
ond-trimester abortions may be performed in these clinics.8
Thus, under Virginia law, a second-trimester abortion may
tient facilities in which abortions could be performed, regardless of the
trimester.
The State Board of Health gave preliminary approval to the proposed
regulations on December 1, 1976, and a public hearing was held January
26, 1977. Dr. William R. Hill, a member of the Board, presided at this
hearing, and staff present from the Department included two doctors and
the Director of the Bureau of Medical and Nursing Facilities Services.
Witnesses included the Associate Executive Director of the Virginia Hos-
pital Association; a representative of five outpatient abortion clinics in the
State; representatives of two abortion clinics. the Richmond Medical Cen-
ter and the Hillcrest Clinic; a professor from Eastern Virginia Medical
School representing Planned. Parenthood of Southside Tidewater and the
Tidewater OBGYN Society: the Medical Director of the Ambulatory Surgi-
cal Center of Leigh Memorial Hospital; the Administrator of Leigh Memo-
rial Hospital; a representative of the Virginia Society for Human Life: and
a representative of the Northern Virginia Medical Center. See Common-
wealth of Virginia Department of Health, Public Hearing In Re: Proposed
Rules and Regulations for the Licensure of Outpatient Hospitals in Vir-
ginia (January 26, 1977). The Executive Director of the Virginia Hospital
Association stated that "[i]n general, they are a good set of standards and
have our support." Id., at 4. The abortion clinics were concerned, how-
ever, about the imposition of the regulations on outpatient abortion clinics
then performing first-trimester abortions. The clinics acknowledged that
during the second trimester "the State may regulate the [abortion] proce-
dure in the interest of maternal health." Id., at 7. But the clinics specifi-
cally "propose[d] that clinics or other facilities that perform abortions
during the first trimester be specifically excluded from the Rules and
Regulations for the Licensure of Outpatient Hospitals in Virginia." Id., at
26. See also id., at 28. The Medical Director of the Ambulatory Surgical
Center of Leigh Memorial Hospital. concerned about the need to set high
standards for outpatient surgical hospitals in the State, agreed that the
Board should not "compromise" the strict standards needed for outpatient
surgical hospitals in order to include these first-trimester outpatient abor-
tion clinics within the same set of regulations. See id., at 30. Following
the hearing, the Board added Part III, the regulations of which apply only
[Footnotes 7 and 8 are on page 8]
81-185-OPINION
8
SIMOPOULOS v. VIRGINIA
be performed in an outpatient surgical hospital provided that
facility has been licensed as a "hospital" by the State.
The Virginia regulations applicable to the performance of
second-trimester abortions in outpatient surgical hospitals
are, with few exceptions, the same regulations applicable to
all outpatient surgical hospitals in Virginia, and may be
grouped for purposes of discussion into three main catego-
ries. The first grouping relates to organization, manage-
to clinics doing first-trimester abortions. See nn. 8. 12, infra. It there-
fore is clear that Virginia has recognized the need for discrete and different
sets of regulations for the two periods. The Board gave its final approval,
and the regulations became effective on June 30, 1977. The abortion for
which appellant was prosecuted was performed on November 10, 1979,
some two years and five months later.
We note that new but similar regulations now supersede the regulations
in effect when appellant performed the abortion for which he was prose-
cuted. See Department of Health, Rules and Regulations for the Licen-
sure of Hospitals in Virginia, pt. IV (1982). These new regulations were
promulgated pursuant to Va. Code §§ 32.1-12, 32.1-127, enacted in 1979.
7 Section 32.1-125 of the Code provides: "No person shall establish, con-
duct, maintain, or operate in this Commonwealth any hospital
unless
such hospital
is licensed as provided in this article." See also Va.
Regs. (Outpatient Hospitals) § 30.1 (similar provision specifically govern-
ing outpatient surgical hospitals).
*
Part II of the regulations sets minimum standards for outpatient surgi-
cal hospitals that may perform second-trimester abortions. This interpre-
tation is confirmed by several sections in Part II. i. e., §§ 43.6.2, 43.6.3,
43.7.3(c), 43.8.4. 43.8.5, 43.9.5, all of which refer to abortion services, and
by the history of Part III. see n. 6. supra. Moreover, the State's counsel
at oral argument represented that facilities licensed pursuant to Part II
legally may perform second-trimester abortions. Tr. of Oral Arg. 33.
Virginia uses the term "outpatient abortion clinics" to refer specifically
to those facilities meeting the minimum standards of Part III of the reg-
ulations. See Va. Regs. (Outpatient Hospitals), p. i. Facilities meet-
ing these standards are limited to performing abortions only during the
first trimester of pregnancy. Ibid. See id., § 62.1.2 ("Any procedure
performed to terminate a pregnancy [in an outpatient abortion clinic] shall
be performed prior to the end of the first trimester (12th week
amenorrhea).").
81-185-OPINION
SIMOPOULOS v. VIRGINIA
9
ment, policies, procedures, and staffing. These regulations
require personnel and facilities "necessary to meet patient
and program needs." Va. Regs. (Outpatient Hospitals)
§ 40.3; see also § 40.1. They also require a policy and proce-
dures manual, § 43.2, an administrative officer, § 40.6, a li-
censed physician who must supervise clinical services and
perform surgical procedures, § 42.1, and a registered nurse to
be on duty at all times while the facility is in use, § 42.2. The
second category of requirements outlines construction stand-
ards for outpatient surgical clinics, but also provides that
"deviations from the requirements prescribed herein may be
approved if it is determined that the purposes of the mini-
mum requirements have been fulfilled," § 50.2.1. There are
also construction requirements that set forth standards for
the public areas, clinical areas, laboratory and radiology serv-
ices, §§ 52.1, 52.2, 52.3, and general building, §§ 50.6.1,
50.7.1, 50.8.1, 52.4. The final group of regulations relates to
patient care services. Most of these set the requirements
for various services that the facility may offer, such as an-
esthesia, § 43.1, laboratory, 43.6.1, 64.1.3, 64.1.4, and pa-
thology, 43.6.3, 64.2.4. Some of the requirements relate
to sanitation, laundry, and the physical plant. 43.2, 43.10,
43.11, 43.12.6. There are also guidelines on medical records,
§ 43.7, pre-operative admission, § 43.8, and post-operative re-
covery, § 43.9. Finally, the regulations mandate some emer-
gency services and evacuation planning. 43.4.1, 43.5.
B
It is readily apparent that Virginia's second-trimester hos-
pitalization requirement differs from those at issue in City of
Akron, ante, at 13, and Planned Parenthood Assn. of Kan-
sas City, Mo., Inc. V. Ashcroft, ante, at 4-5. In those cases,
we recognized the medical fact that, "at least during the early
weeks of the second trimester[,] D&E abortions may be per-
formed as safely in an outpatient clinic as in a full-service hos-
pital." City of Akron, ante, at 19. The requirements at
81-185-OPINION
10
SIMOPOULOS v. VIRGINIA
issue, however, mandated that "all second-trimester abor-
tions must be performed in general, acute-care facilities."
Ashcroft, ante, at 5. In contrast, the Virginia statutes and
regulations do not require that second-trimester abortions be
performed exclusively in full-service hospitals. Under Vir-
ginia's hospitalization requirement, outpatient surgical hospi-
tals may qualify for licensing as "hospitals" in which second-
trimester abortions lawfully may be performed. Thus, our
decisions in City of Akron and Ashcroft are not controlling
here.
In view of its interest in protecting the health of its citi-
zens, the State necessarily has considerable discretion in
determining standards for the licensing of medical facilities.
Although its discretion does not permit it to adopt abortion
regulations that depart from accepted medical practice, it
does have a legitimate interest in regulating second-trimes-
ter abortion and setting forth the standards for facilities in
which such abortions are performed.
On their face, the Virginia regulations appear to be gener-
ally compatible with accepted medical standards governing
outpatient second-trimester abortions. The American Pub-
lic Health Association (APHA), although recognizing "that
greater use of the dilatation and evacuation procedure
make[s] it possible to perform the vast majority of second tri-
mester abortions during or prior to the 16th [w]eek after the
last menstrual period," still "[u]rges endorsement of the pro-
vision of second trimester abortion in free-standing qualified
clinics that meet the state standards required for certifica-
tion." APHA, The Right to Second Trimester Abortion 1, 2
(1979). The medical profession has not thought that a
State's standards need be relaxed merely because the facility
performs abortions: "Ambulatory care facilities providing
abortion services should meet the same standards of care as
those recommended for other surgical procedures performed
in the physician's office and outpatient clinic or the free-
standing and hospital-based ambulatory setting." American
81-185-OPINION
SIMOPOULOS v. VIRGINIA
11
College of Obstetricians and Gynecologists (ACOG), Stand-
ards for Obstetric-Gynecologic Services 54 (5th ed. 1982).
See also id., at 52 ("Free-standing or hospital-based ambula-
tory surgical facilities should be licensed to conform to re-
quirements of state or federal legislation."). Indeed, the
medical profession's standards for outpatient surgical facili-
ties are stringent: "Such facilities should maintain the same
surgical, anesthetic, and personnel standards as recom-
mended for hospitals." Ibid.
We need not consider whether Virginia's regulations are
constitutional in every particular. Despite personal knowl-
edge of the regulations at least by the time of trial, appellant
has not attacked them as being insufficiently related to the
State's interest in protecting health.9 His challenge
throughout this litigation appears to have been limited to an
assertion that the State cannot require all second-trimester
abortions to be performed in full-service general hospitals.
In essence, appellant has argued that Virginia's hospitaliza-
tion requirements are no different in substance from those
reviewed in the City of Akron and Ashcroft cases. 10 At the
See nn. 3, 6, supra; 5 Record 55-56 (appellant acknowledging exist-
ence of the outpatient hospital license: stating that he was seeking a li-
cense; but denying that he knew of the licensing program when the abor-
tion was performed).
10 Appellant's reply brief does criticize the Virginia regulations, but not
individually or on specific grounds, instead making only facial challenges in
the broadest language and in conclusory terms: that the record is silent on
the applicability of those regulations to his facility: that the record does not
show whether any outpatient surgical hospitals exist in Virginia or
whether. if they exist, they allow second-trimester abortions; that the
record is silent on the reasonableness of the regulations: that he had no
opportunity to, defend against the regulations at trial: that it is uncertain
whether, if he had applied for an outpatient hospital license, it would have
been granted: that obtaining a license is an arduous process: that Virginia
courts have had no opportunity to construe the "licensing statutes and
regulations"; and that Part II of the regulations does not cover an outpa-
tient surgical hospital where second-trimester abortions are performed.
81-185-OPINION
12
SIMOPOULOS v. VIRGINIA
same time, however, appellant took the position-both be-
fore the Virginia courts and this Court-that a state licensing
requirement for outpatient abortion facilities would be con-
stitutional. 11 We can only assume that by continuing to chal-
lenge the Virginia hospitalization requirement petitioner ei-
ther views the Virginia regulations in some unspecified way
as unconstitutional or challenges a hospitalization require-
ment that does not exist in Virginia. Yet, not until his reply
brief in this Court did he elect to criticize the regulations
apart from his broadside attack on the entire Virginia hos-
pitalization requirement.
Given the plain language of the Virginia regulations and
the history of their adoption, see n. 6, supra, we see no rea-
son to doubt that an adequately equipped clinic could, upon
proper application, obtain an outpatient hospital license per-
mitting the performance of second-trimester abortions.
We conclude that Virginia's requirement that second-trimes-
ter abortions be performed in licensed clinics is not an unrea-
sonable means of furthering the State's compelling interest in
"protecting the woman's own health and safety." Roe, 410
U.S., at 150. 12 As we emphasized in Roe, "[t]he State has a
legitimate interest in seeing to it that abortion, like any other
medical procedure, is performed under circumstances that in-
Some of these arguments are simply meritless. see n. 8, supra, and others
are irrelevant, see n. 3, supra, and none has been raised below.
11 See 8 Record 196a, 214a; Brief for Appellant in No. 801107 (Va. S.
Ct.), p. 35; Juris. Statement 16: Brief for Appellant 32, 43 n. 75, 46.
12 Appellant argues that Part III of the regulations. covering first-
trimester abortion clinics, requires the same services and equipment as
Part II. In fact, Part III has detailed regulations that do not appear in
Part II. See, e. g., Va. Regs. (Outpatient Hospitals) §§ 63.1.1(b). § 63.3,
64.2.5(a)-(m). Appellant contends that, given these extensive regulations
for first-trimester abortion clinics, the only way to require more techno-
logical support for second-trimester abortions would be to restrict them to
acute-care. general hospitals. The only issue before us, however. relates
to second-trimester abortions.
81-185-OPINION
SIMOPOULOS v. VIRGINIA
13
sure maximum safety for the patient." Ibid. Unlike the
provisions at issue in City of Akron and Ashcroft, Virginia's
statute and regulations do not require that the patient be
hospitalized as an inpatient or that the abortion be performed
in a full-service, acute-care hospital. Rather, the State's re-
quirement that second-trimester abortions be performed in
licensed clinics appears to comport with accepted medical
practice, and leaves the method and timing of the abortion
precisely where they belong-with the physician and the
patient.
IV
The judgment of the Supreme Court of Virginia is
Affirmed.
SUPREME COURT OF THE UNITED STATES
No. 81-185
CHRIS SIMOPOULOS, APPELLANT v. VIRGINIA
ON APPEAL FROM THE SUPREME COURT OF VIRGINIA
[June 15, 1983]
JUSTICE O'CONNOR, with whom JUSTICE WHITE and JUS-
TICE REHNQUIST join, concurring in part and concurring in
the judgment.
I agree with the Court's treatment of the appellant's argu-
ments based on United States V. Vuitch, 402 U.S. 62 (1971)
and Patterson V. New York, 432 U. S. 197 (1977). Accord-
ingly, I join parts I and II of the Court's opinion.
I concur in the judgment of the Court insofar as it affirms
the conviction. For reasons stated in my dissent in No.
81-746, Akron V. Akron Center for Reproductive Health and
in No. 81-1172, Akron Center for Reproductive Health V. Ak-
ron, I do not agree that the constitutional validity of the Vir-
ginia mandatory hospitalization requirement is contingent in
any way on the trimester in which it is imposed. Rather, I
believe that the requirement in this case is not an undue bur-
den on the decision to undergo an abortion.
NOTE: Where it is feasible. a syllabus (headnote) will be released. as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been pre-
pared by the Reporter of Decisions for the convenience of the reader. See
United States V. Detroit Lumber Co., 200 U. S. 321. 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
PLANNED PARENTHOOD ASSOCIATION OF KANSAS
CITY, MISSOURI, INC., ET AL. v. ASHCROFT, ATTOR-
NEY GENERAL OF MISSOURI, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE EIGHTH CIRCUIT
No. 81-1255. Argued November 30, 1982-Decided June 15, 1983 *
Missouri statutes require abortions after 12 weeks of pregnancy to be per-
formed in a hospital (§ 188.025); require a pathology report for each abor-
tion performed (§ 188.047); require the presence of a second physician
during abortions performed after viability (§ 188.030.3); and require mi-
nors to secure parental consent or consent from the juvenile court for an
abortion (§ 188.028). In an action challenging the constitutionality of
these provisions, the District Court invalidated all provisions except
§ 188.047. The Court of Appeals reversed as to §§ 188.028 and 188.047
but affirmed as to §§ 188.030.3 and 188.025.
Held: Section 188.025 is unconstitutional, but §§ 188.047, 188.030.3, and
188.028 are constitutional.
655 F. 2d 848, affirmed in part, reversed in part, vacated in part, and re-
manded; 664 F. 2d 687, affirmed.
JUSTICE POWELL delivered the opinion of the Court with respect to
Parts I, II, and VI, concluding that the second-trimester hospitalization re-
quirement of § 188.025 "unreasonably infringes upon a woman's constitu-
tional right to obtain an abortion." City of Akron V. Akron Center of Re-
productive Health, Inc., ante, at
-
Pp. 45.
JUSTICE POWELL, joined by THE CHIEF JUSTICE, concluded in Parts III,
IV, and V that:
*Together with No. 81-1623, Ashcroft, Attorney General of Missouri,
et al. V. Planned Parenthood Association of Kansas City, Missouri, Inc.,
et al., also on certiorari to the same court.
I
II
PLANNED PARENTHOOD ASSN. v. ASHCROFT
Syllabus
1. The second-physician requirement of § 188.030.3 is constitutional as
reasonably furthering the State's compelling interest in protecting the lives
of viable fetuses. Pp. 5-9.
2. The pathology-report requirement of § 188.047 is constitutional. On
its face and in effect, such requirement is reasonably related to generally
accepted medical standards and furthers important health-related state
concerns. In light of the substantial benefits that a pathologist's examina-
tion can have, the small additional cost of such an examination does not sig-
nificantly burden a pregnant woman's abortion decision. Pp. 9-14.
3. Section 188.028 is constitutional. A State's interest in protecting im-
mature minors will sustain a requirement of a consent substitute, either
parental or judicial. And as interpreted by the Court of Appeals to mean
that the juvenile court cannot deny a minor's application for consent to an
abortion "for good cause" unless the court first finds that the minor was not
mature enough to make her own decision, § 188.028 provides a judicial al-
ternative that is consistent with established legal standards. See City of
Akron V. Akron Center for Reproductive Health, Inc., ante, at
Pp.
14-17.
JUSTICE O'CONNOR, joined by JUSTICE WHITE and JUSTICE REHN-
QUIST. concluded that:
1. The second-physician requirement of § 188.030.3 is constitutional be-
cause the State has a compelling interest, extant throughout pregnancy, in
protecting and preserving fetal life. P. 2.
2. The pathology-report requirement of § 188.047 is constitutional be-
cause it imposes no undue burden on the limited right to undergo an abor-
tion, and its validity is not contingent on the trimester of pregnancy in
which it is imposed. P. 2.
3. Assuming, arguendo, that the State cannot impose a parental veto on
a minor's decision to undergo an abortion, the parental consent provision of
§ 188.028.2 is constitutional because it imposes no undue burden on any
right that a minor may have to undergo an abortion. P.2.
POWELL. J., announced the Court's judgment and delivered the opinion
of the Court with respect to Parts I, II. and VI, in which BURGER, C. J.,
and BRENNAN, MARSHALL, BLACKMUN, and STEVENS. JJ., joined, and an
opinion with respect to Parts III, IV, and V, in which BURGER, C. J.,
joined. BLACKMUN, J., filed an opinion concurring in part and dissenting
in part, in which BRENNAN, MARSHALL. and STEVENS, JJ., joined.
O'CONNOR, J., filed an opinion concurring in part in the judgment and dis-
senting in part, in which WHITE and REHNQUIST, JJ., joined.
SUPREME COURT OF THE UNITED STATES
No. 81-185
CHRIS SIMOPOULOS, APPELLANT V. VIRGINIA
ON APPEAL FROM THE SUPREME COURT OF VIRGINIA
[June 15, 1983]
JUSTICE STEVENS, dissenting.
Prior to this Court's decision in Roe V. Wade, 410 U. S. 113
(1973), it was a felony to perform any abortion in Virginia ex-
cept in a hospital accredited by the Joint Committee on Ac-
creditation of Hospitals and licensed by the Department of
Health, and with the approval of the hospital's Abortion Re-
view Board (a committee of three physicians).* In 1975,
the Virginia Code was amended to authorize additional abor-
tions, including any second trimester abortion performed by
a physician "in a hospital licensed by the State Department of
Health or under the control of the State Board of Mental
Health and Mental Retardation." Va. Code § 18.2-73 (1982).
The amended statute might be interpreted in either of two
ways. It might be read to prohibit all second trimester abor-
tions except those performed in a full-service, acute-care hos-
pital facility. Or it might be read to permit any abortion per-
formed in a facility licensed as a "hospital" in accord with any
regulations subsequently adopted by the Department of
Health. The Court today chooses the latter interpretation.
See ante, at 5-6.
*An in-hospital abortion was also unlawful unless (a) it was necessary to
protect the life or health of the mother. (b) the pregnancy was the product
of rape or incest, or (c) there was a substantial medical likelihood that the
child would be born with an irremediable and incapacitating mental or
physical defect. 1970 Va. Acts, ch. 508.
81-185-DISSENT
2
SIMOPOULOS v. VIRGINIA
There is reason to think the Court may be wrong. At the
time the statute was enacted, there were no regulations iden-
tifying abortion clinics as "hospitals." The structure of the
1975 amendment suggests that the Virginia General Assem-
bly did not want to make any greater change in its law than it
believed necessary to comply with Roe V. Wade, and it may
well have thought a full-service acute-care hospitalization re-
quirement constitutionally acceptable. Moreover, the opin-
ion below does not suggest that the Supreme Court of Vir-
ginia believed the term "hospital" to incorporate licensed
abortion clinics. It only discussed testimony pertaining to
full-service, acute-care hospitals like Fairfax Hospital. See
Juris. Statement 16a. And it stated that "two hospitals in
Northern Virginia and 24 hospitals located elsewhere in the
State were providing abortion services in 1977," Juris. State-
ment 19a, again referring to acute-care facilities. The opin-
ion refers to "clinics" only once, as part of a general state-
ment concerning the variety of medical care facilities the
state licenses and regulates; even there, the term is included
in the list as a category that is distinct from "hospitals." Ju-
ris. Statement 18a.
On the other hand, the Court may well be correct in its in-
terpretation of the Virginia statute. The word "hospital" in
§ 18.2-73 could incorporate by reference any institution li-
censed in accord with Va. Code § 32.1-123.1 and its imple-
menting regulations. See ante, at 5-6. It is not this
Court's role, however, to interpret state law. We should not
rest our decision on an interpretation of state law that was
not endorsed by the court whose judgment we are reviewing.
The Virginia Supreme Court's opinion was written on the as-
sumption that the Commonwealth could constitutionally re-
quire all second trimester abortions to be performed in a full-
service, acute-care hospital. Our decision today in City of
Akron V. Akron Center for Reproductive Health, Inc., ante,
p.
- proves that assumption to have been incorrect. The
proper disposition of this appeal is therefore to vacate the
81-185-DISSENT
SIMOPOULOS v. VIRGINIA
3
judgment of the Supreme Court of Virginia and to remand
the case to that court to reconsider its holding in the light of
our opinion in Akron.
I respectfully dissent.
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
Nos. 81-746 AND 81-1172
CITY OF AKRON, PETITIONER
81-746
v.
AKRON CENTER FOR REPRODUCTIVE HEALTH,
INC., ET AL.
AKRON CENTER FOR REPRODUCTIVE HEALTH,
INC., ET AL., PETITIONERS
81-1172
v.
CITY OF AKRON ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[June 15, 1983]
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.
Today we also review abortion regulations enacted by the
State of Missouri, see Planned Parenthood Ass'n of Kansas
City, Mo., Inc. V. Ashcroft, post, p.
I
,
and by the State of
Virginia, see Simopoulos V. Virginia, post, p.
-
These cases come to us a decade after we held in Roe
V. Wade, 410 U.S. 113 (1973), 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
81-746 & 81-1172-OPINION
2 AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH
regulate the performance of abortions. And arguments con-
tinue to be made, in these cases as well, that we erred in in-
terpreting 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.¹ We respect it today,
and reaffirm Roe V. Wade.
1 There are especially compelling reasons for adhering to stare decisis in
applying the principles of Roe V. Wade. That case was considered with
special care. It was first argued during the 1971 Term, and reargued—
with extensive briefing-the following Term. The decision was joined by
the Chief Justice and six other Justices. Since Roe was decided in Febru-
ary 1973, the Court repeatedly and consistently has accepted and applied
the basic principle that a woman has a fundamental right to make the
highly personal choice whether or not to terminate her pregnancy. See
Connecticut V. Menillo, 423 U. S. 9 (1975); Planned Parenthood of Central
Mo. V. Danforth, 428 U. S. 52 (1976); Bellotti V. Baird, 428 U.S. 132
(1976); Beal V. Doe, 432 U. S. 438 (1977); Maher V. Roe, 432 U.S. 464
(1977); Colautti V. Franklin, 439 U.S. 379 (1979); Bellotti V. Baird,
443 U. S. 622 (1979); Harris V. McRae, 448 U.S. 297 (1980); H.L. V.
Matheson, 450 U. S. 398 (1981).
Today, however, the dissenting opinion rejects the basic premise of Roe
and its progeny. The dissent stops short of arguing flatly that Roe should
be overruled. Rather, it adopts reasoning that, for all practical purposes,
would accomplish precisely that result. The dissent states that "[e]ven as-
suming that there is a fundamental right to terminate pregnancy in some
situations," the State's compelling interests in maternal health and poten-
tial human life "are present throughout pregnancy." Post, at 8 (emphasis
in original). The existence of these compelling interests turns out to be
largely unnecessary, however, for the dissent does not think that even one
of the numerous abortion regulations at issue imposes a sufficient burden
on the "limited" fundamental right, post, at 15, n. 10, to require heightened
scrutiny. Indeed, the dissent asserts that, regardless of cost, "[a] health
regulation, such as the hospitalization requirement, simply does not rise to
the level of 'official interference' with the abortion decision." Post, at 16
(quoting Harris V. McRae, 448 U. S. 297, 328 (1980) (WHITE, J., concur-
ring)). The dissent therefore would hold that a requirement that all abor-
tions be performed in an acute-care, general hospital does not impose an
unacceptable burden on the abortion decision. It requires no great fa-
miliarity with the cost and limited availability of such hospitals to appreci-
ate that the effect of the dissent's views would be to drive the performance
81-746 & 81-1172-OPINION
AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH 3
I
In February 1978 the city council of Akron enacted Ordi-
nance No. 160-1978, entitled "Regulation of Abortions."
The ordinance sets forth 17 provisions that regulate the per-
of many abortions back underground free of effective regulation and often
without the attendance of a physician.
In sum, it appears that the dissent would uphold virtually any abortion
regulation under a rational-basis test. It also appears that even where
heightened scrutiny is deemed appropriate, the dissent would uphold virtu-
ally any abortion-inhibiting regulation because of the State's interest in
preserving potential human life. See post, at 23 (arguing that a 24-hour
waiting period is justified in part because the abortion decision "has grave
consequences for the fetus"). This analysis is wholly incompatible with
the existence of the fundamental right recognized in Roe V. Wade.
"The ordinance was prefaced by several findings:
"WHEREAS, the citizens of Akron are entitled to the highest standard
of health care; and
WHEREAS, abortion is a major surgical procedure which can result in
complications, and adequate equipment and personnel should be required
for its safe performance in order to insure the highest standards of care for
the protection of the life and health of the pregnant woman; and
WHEREAS, abortion should be performed only in a hospital or in such
other special outpatient facility offering the maximum safeguards to the
life and health of the pregnant woman; and
WHEREAS, it is the finding of Council that there is no point in time
between the union of sperm and egg, or at least the blastocyst stage and
the birth of the infant at which point we can say the unborn child is not a
human life, and that the changes occurring between implantation, a six-
weeks embryo, a six-month fetus, and a one-week-old child, or a mature
adult are merely stages of development and maturation; and
WHEREAS, traditionally the physician has been responsible for the
welfare of both the pregnant woman and her unborn child, and that while
situations of conflict may arise between a pregnant woman's health inter-
ests and the welfare of her unborn child, the resolution of such conflicts by
inducing abortion in no way implies that the physician has an adversary
relationship towards the unborn child; and
WHEREAS, Council therefore wishes to affirm that the destruction of
the unborn child is not the primary purpose of abortion and that conse-
quently Council recognizes a continuing obligation on the part of the physi-
cian towards the survival of a viable unborn child where this obligation
can be discharged without additional hazard to the health of the pregnant
woman; and
81-746 & 81-1172-OPINION
4 AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH
formance of abortions, see Akron Codified Ordinances ch.
1870, five of which are at issue in this case:
(i) Section 1870.03 requires that all abortions performed
after the first trimester of pregnancy be performed in a
hospital.³
(ii) Section 1870.05 sets forth requirements for notification
of and consent by parents before abortions may be performed
on unmarried minors.4
(iii) Section 1870.06 requires that the attending physician
WHEREAS, Council, after extensive public hearings and investigations
concludes that enactment of this ordinance is a reasonable and prudent ac-
tion which will significantly contribute to the preservation of the public life,
health, safety, morals, and welfare." Akron Ordinance No. 160-1978.
'"1870.03 ABORTION IN HOSPITAL
No person shall perform or induce an abortion upon a pregnant woman
subsequent to the end of the first trimester of her pregnancy, unless such
abortion is performed in a hospital."
Section 1870.1(B) defines "hospital" as "a general hospital or special hos-
pital devoted to gynecology or obstetrics which is accredited by the Joint
Commission on Accreditation of Hospitals or by the American Osteopathic
Association."
'"1870.05 NOTICE AND CONSENT
(A) No physician shall perform or induce an abortion upon an unmarried
pregnant woman under the age of 18 years without first having given at
least twenty-four (24) hours actual notice to one of the parents or the legal
guardian of the minor pregnant woman as to the intention to perform such
abortion, or if such parent or guardian cannot be reached after a reasonable
effort to find him or her, without first having given at least seventy-two
(72) hours constructive notice to one of the parents or the legal guardian of
the minor pregnant woman by certified mail to the last known address of
one of the parents or guardian, computed from the time of mailing, unless
the abortion is ordered by a court having jurisdiction over such minor preg-
nant woman.
(B) No physician shall perform or induce an abortion upon a minor preg-
nant woman under the age of fifteen (15) years without first having ob-
tained the informed written consent of the minor pregnant woman in ac-
cordance with Section 1870.06 of this Chapter, and
(1) First having obtained the informed written consent of one of her par-
ents or her legal guardian in accordance with Section 1870.06 of this Chap-
ter, or
(2) The minor pregnant woman first having obtained an order from a
court having jurisdiction over her that the abortion be performed or
induced."
81-746 & 81-1172-OPINION
AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH 5
make certain specified statements to the patient "to insure
that the consent for an abortion is truly informed consent.
(iv) Section 1870.07 requires a 24-hour waiting period be-
tween the time the woman signs a consent form and the time
the abortion is performed.6
$"1870.06 INFORMED CONSENT
(A) An abortion otherwise permitted by law shall be performed or in-
duced only with the informed written consent of the pregnant woman, and
one of her parents or her legal guardian whose consent is required in ac-
cordance with Section 1870.05(B) of this Chapter, given freely and without
coercion.
(B) In order to insure that the consent for an abortion is truly informed
consent, an abortion shall be performed or induced upon a pregnant woman
only after she, and one of her parents or her legal guardian whose consent
is required in accordance with Section 1870.05(B) of this Chapter, have
been orally informed by her attending physician of the following facts, and
have signed a consent form acknowledging that she, and the parent or legal
guardian where applicable, have been informed as follows:
(1) That according to the best judgment of the attending physician she is
pregnant.
(2) The number of weeks elapsed from the probable time of conception of
her unborn child, based upon the information provided by her as to the
time of her last menstrual period and after a history and physical examina-
tion and appropriate laboratory test.
(3) That the unborn child is a human life from the moment of conception
and that there has been described in detail the anatomical and physiological
characteristics of the particular unborn child at the gestational point of
development at which time the abortion is to be performed, including, but
not limited to, appearance, mobility, tactile sensitivity, including pain, per-
ception or response, brain and heart function, the presence of internal or-
gans and the presence of external members.
(4) That her unborn child may be viable, and thus capable of surviving
outside of her womb, if more than twenty-two (22) weeks have elapsed
from the time of conception, and that her attending physician has a legal
obligation to take all reasonable steps to preserve the life and health of her
viable unborn child during the abortion.
(5) That abortion is a major surgical procedure, which can result in seri-
ous complications, including hemorrhage, perforated uterus, infection,
menstrual disturbances, sterility and miscarriage and prematurity in sub-
sequent pregnancies; and that abortion may leave essentially unaffected or
may worsen any existing psychological problems she may have, and can re-
sult in severe emotional disturbances.
(6) That numerous public and private agencies and services are available
[Footnotes 6 and 7 are on page 6]
81-746 & 81-1172-OPINION
6 AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH
(v) Section 1870.16 requires that fetal remains be "dis-
posed of in a humane and sanitary manner."1
A violation of any section of the ordinance is punishable as
a criminal misdemeanor. § 1870.18. If any provision is in-
validated, it is to be severed from the remainder of the ordi-
nance.8 The ordinance became effective on May 1, 1978.
to provide her with birth control information, and that her physician will
provide her with a list of such agencies and the services available if she S0
requests.
(7) That numerous public and private agencies and services are available
to assist her during pregnancy and after the birth of her child, if she
chooses not to have the abortion, whether she wishes to keep her child or
place him or her for adoption, and that her physician will provide her with a
list of such agencies and the services available if she SO requests.
(C) At the same time the attending physician provides the information
required by paragraph (B) of this Section, he shall, at least orally, inform
the pregnant woman, and one of her parents or her legal guardian whose
consent is required in accordance with Section 1870.05(B) of this Chapter,
of the particular risks associated with her own pregnancy and the abortion
technique to be employed including providing her with at least a general
description of the medical instructions to be followed subsequent to the
abortion in order to insure her safe recovery, and shall in addition provide
her with such other information which in his own medical judgment is rele-
vant to her decision as to whether to have an abortion or carry her preg-
nancy to term.
(D) The attending physician performing or inducing the abortion shall
provide the pregnant woman, or one of her parents or legal guardian sign-
ing the consent form where applicable, with a duplicate copy of the consent
form signed by her, and one of her parents or her legal guardian where
applicable, in accordance with paragraph (B) of this Section."
""1870.07 WAITING PERIOD
No physician shall perform or induce an abortion upon a pregnant woman
until twenty-four (24) hours have elapsed from the time the pregnant
woman, and one of her parents or her legal guardian whose consent is re-
quired in accordance with Section 1870.05(B) of this Chapter, have signed
the consent form required by Section 1870.06 of this Chapter, and the phy-
sician so certifies in writing that such time has elapsed."
1"1870.16 DISPOSAL OF REMAINS
Any physician who shall perform or induce an abortion upon a pregnant
woman shall insure that the remains of the unborn child are disposed of in a
humane and sanitary manner."
'"1870.19 SEVERABILITY
Should any provision of this Chapter be construed by any court of law to
81-746 & 81-1172-OPINION
AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH 7
On April 19, 1978, a lawsuit challenging virtually all of the
ordinance's provisions was filed in the District Court for the
Northern District of Ohio. The plaintiffs, respondents and
cross-petitioners in this Court, were three corporations that
operate abortion clinics in Akron and a physician who has
performed abortions at one of the clinics. The defendants,
petitioners and cross-respondents here, were the city of
Akron and three city officials ("Akron"). Two individuals
("intervenors") were permitted to intervene as co-defendants
"in their individual capacity as parents of unmarried daugh-
ters of child-bearing age." 479 F. Supp. 1172, 1181 (ND
Ohio 1979). On April 27, 1978, the District Court prelimi-
narily enjoined enforcement of the ordinance.
In August 1979, after hearing evidence, the District Court
ruled on the merits. It found that plaintiffs lacked standing
to challenge seven provisions of the ordinance, none of which
is before this Court. The District Court invalidated four
provisions, including § 1870.05 (parental notice and consent),
§ 1870.06(B) (requiring disclosure of facts concerning the
woman's pregnancy, fetal development, the complications of
abortion, and agencies available to assist the woman), and
§ 1870.16 (disposal of fetal remains). The court upheld the
constitutionality of the remainder of the ordinance, including
§ 1870.03 (hospitalization for abortions after the first trimes-
ter), § 1870.06(C) (requiring disclosure of the particular risks
of the woman's pregnancy and the abortion technique to be
employed), and § 1870.07 (24-hour waiting period).
All parties appealed some portion of the District Court's
judgment. The Court of Appeals for the Sixth Circuit af-
firmed in part and reversed in part. 651 F. 2d 1198 (1981).
It affirmed the District Court's decision that § 1870.03's hos-
pitalization requirement is constitutional. It also affirmed
be invalid, illegal, unconstitutional, or otherwise unenforcible, such invalid-
ity, illegality, unconstitutionality, or unenforcibility shall not extend to any
other provision or provisions of this Chapter."
81-746 & 81-1172-OPINION
8 AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH
the ruling that §§ 1870.05, 1870.06(B), and 1870.16 are un-
constitutional. The Court of Appeals reversed the District
Court's decision on $ 1870.06(C) and 1870.07, finding these
provisions to be unconstitutional.
Three separate petitions for certiorari were filed. In light
of the importance of the issues presented, and in particular
the conflicting decisions as to whether a State may require
that all second-trimester abortions be performed in a hospi-
tal, we granted both Akron's and the plaintiffs' petitions.
456 U. S. 988 (1982). We denied the intervenors' petition,
Seguin V. Akron Center for Reproductive Health, Inc., 456
U. S. 989 (1982), but they have participated in this Court as
respondents under our Rule 19.6. We now reverse the judg-
ment of the Court of Appeals upholding Akron's hospitaliza-
tion requirement, but affirm the remainder of the decision
invalidating the provisions on parental consent, informed
consent, waiting period, and disposal of fetal remains.
II
In Roe V. Wade, the Court held that the "right of privacy,
founded in the Fourteenth Amendment's concept of per-
sonal liberty and restrictions upon state action,
is broad
enough to encompass a woman's decision whether or not to
terminate her pregnancy." 410 U. S., at 153. Although the
Constitution does not specifically identify this right, the his-
tory of this Court's constitutional adjudication leaves no
doubt that "the full scope of the liberty guaranteed by the
Due Process Clause cannot be found in or limited by the pre-
cise terms of the specific guarantees elsewhere provided in
'Compare Planned Parenthood Assn. of Kansas City, Mo., Inc. V.
Ashcroft, 655 F. 2d 848 (CA8), supplemented, 664 F. 2d 687 (CA8 1981)
(invalidating hospital requirement), with Simopoulos V. Commonwealth,
221 Va. 1059, 277 S. E. 2d 194 (1981) (upholding hospital requirement).
Numerous States require that second-trimester abortions be performed in
hospitals. See Brief for Americans United for Life as Amicus Curiae in
No. 81-185, at 4 n. 1 (listing 23 States).
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AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH 9
the Constitution." Poe V. Ullman, 367 U. S. 497, 543 (1961)
(Harlan, J., dissenting from dismissal of appeal). Central
among these protected liberties is an individual's "freedom of
personal choice in matters of marriage and family life." Roe,
410 U. S., at 169 (Stewart, J., concurring). See, e. g.,
Eisenstadt V. Baird, 405 U. S. 438 (1972); Loving V. Vir-
ginia, 388 U. S. 1 (1967); Griswold V. Connecticut, 381 U. S.
479 (1965); Pierce V. Society of Sisters, 268 U. S. 510 (1925);
Meyer V. Nebraska, 262 U. S. 390 (1923). The decision in
Roe was based firmly on this long-recognized and essential el-
ement of personal liberty.
The Court also has recognized, because abortion is a medi-
cal procedure, that the full vindication of the woman's funda-
mental right necessarily requires that her physician be given
"the room he needs to make his best medical judgment."
Doe V. Bolton, 410 U.S. 179, 192 (1973). See Whalen V.
Roe, 429 U. S. 589, 604-605, n. 33 (1977). The physician's
exercise of this medical judgment encompasses both assisting
the woman in the decisionmaking process and implementing
her decision should she choose abortion. See Colautti V.
Franklin, 439 U. S. 379, 387 (1979).
At the same time, the Court in Roe acknowledged that the
woman's fundamental right "is not unqualified and must be
considered against important state interests in abortion."
Roe, 410 U. S., at 154. But restrictive state regulation of
the right to choose abortion, as with other fundamental
rights subject to searching judicial examination, must be sup-
ported by a compelling state interest. Id., at 155. We have
recognized two such interests that may justify state regula-
tion of abortions.
10 In addition, the Court repeatedly has recognized that, in view of the
unique status of children under the law, the States have a "significant" in-
terest in certain abortion regulations aimed at protecting children "that is
not present in the case of an adult." Planned Parenthood of Central Mo.
V. Danforth, 428 U. S. 52, 75 (1976). See Carey V. Population Services
International, 431 U.S. 678, 693, n. 15 (1977) (plurality opinion). The
81-746 & 81-1172-OPINION
10 AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH
First, a State has an "important and legitimate interest in
protecting the potentiality of human life." Id., at 162. Al-
though this interest exists "throughout the course of the
woman's pregnancy," Beal V. Doe, 432 U. S. 438, 446 (1977),
it becomes compelling only at viability, the point at which the
fetus "has the capability of meaningful life outside the moth-
er's womb," Roe, 410 U.S., at 163. See Planned Parent-
hood of Central Mo. V. Danforth, 428 U. S. 52, 63-65 (1976).
At viability this interest in protecting the potential life of the
unborn child is so important that the State may proscribe
abortions altogether, "except when it is necessary to pre-
serve the life or health of the mother." Roe, 410 U.S.,
at 164.
Second, because a State has a legitimate concern with the
health of women who undergo abortions, "a State may prop-
erly assert important interests in safeguarding health [and]
in maintaining medical standards." Id., at 154. We held in
Roe, however, that this health interest does not become com-
pelling until "approximately the end of the first trimester"
of pregnancy. 11 Id., at 163. Until that time, a pregnant
right of privacy includes "independence in making certain kinds of impor-
tant decisions," Whalen V. Roe, 429 U. S. 589, 599-600 (1977), but this
Court has recognized that many minors are less capable than adults of mak-
ing such important decisions. See Bellotti V. Baird, 443 U.S. 622,
633-635 (1979) (plurality opinion) (Bellotti II); Danforth, supra, at 102
(STEVENS, J., concurring in part and dissenting in part). Accordingly, we
have held that the States have a legitimate interest in encouraging paren-
tal involvement in their minor children's decision to have an abortion. See
H.L. V. Matheson, 450 U. S. 398 (1981) (parental notice); Bellotti II,
supra, at 639, 648 (plurality opinion) (parental consent). A majority of the
Court, however, has indicated that these state and parental interests must
give way to the constitutional right of a mature minor or of an immature
minor whose best interests are contrary to parental involvement. See,
e. g., Matheson, supra, at 420 (POWELL, J., concurring); id., at 450-451
(MARSHALL, J., dissenting). The plurality in Bellotti II concluded that a
State choosing to encourage parental involvement must provide an alterna-
tive procedure through which a minor may demonstrate that she is mature
enough to make her own decision or that the abortion is in her best inter-
est. See Bellotti II, supra, at 643-644.
11 Roe identified the end of the first trimester as the compelling point
81-746 & 81-1172-OPINION
AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH 11
woman must be permitted, in consultation with her physi-
cian, to decide to have an abortion and to effectuate that deci-
sion "free of interference by the State." 12 Id., at 163.
because until that time-according to the medical literature available in
1973-"mortality in abortion may be less than mortality in normal child-
birth." 410 U.S., at 163. There is substantial evidence that develop-
ments in the past decade, particularly the development of a much safer
method for performing second-trimester abortions, see infra, at 17-18,
have extended the period in which abortions are safer than childbirth.
See, e. g., LeBolt, et al., Mortality from Abortion and Childbirth: Are the
Populations Comparable?, 248 J. A. M. A. 188, 191 (1982) (abortion may be
safer than childbirth up to gestational ages of 16 weeks).
We think it prudent, however, to retain Roe's identification of the begin-
ning of the second trimester as the approximate time at which the State's
interest in maternal health becomes sufficiently compelling to justify sig-
nificant regulation of abortion. We note that the medical evidence sug-
gests that until approximately the end of the first trimester, the State's
interest in maternal health would not be served by regulations that restrict
the manner in which abortions are performed by a licensed physician.
See, e. g., American College of Obstetricians and Gynecologists (ACOG),
Standards for Obstetric-Gynecologic Services 54 (5th ed. 1982) (hereinafter
ACOG Standards) (uncomplicated abortions generally may be performed in
a physician's office or an outpatient clinic up to 14 weeks from the first day
of the last menstrual period); ACOG Technical Bulletin No. 56, Methods of
Mid-Trimester Abortion (Dec. 1979) ("Regardless of advances in abortion
technology, midtrimester terminations will likely remain more hazardous,
expensive, and emotionally disturbing for women than earlier abortions.")
The Roe trimester standard thus continues to provide a reasonable legal
framework for limiting a State's authority to regulate abortions. Where
the State adopts a health regulation governing the performance of abor-
tions during the second trimester, the determinative question should be
whether there is a reasonable medical basis for the regulation. See Roe,
supra, at 163. The comparison between abortion and childbirth mortality
rates may be relevant only where the State employs a health rationale as a
justification for a complete prohibition on abortions in certain circum-
stances. See Danforth, 428 U. S., at 78-79 (invalidating state ban on sa-
line abortions, a method that was "safer, with respect to maternal mortal-
ity, than even continuation of the pregnancy until normal childbirth").
12 Of course, the State retains an interest in ensuring the validity of
Roe's factual assumption that "the first trimester abortion [is] as safe for
the woman as normal childbirth at term," an assumption that "holds true
only if the abortion is performed by medically competent personnel un-
der conditions insuring maximum safety for the woman." Connecticut V.
Menillo, 423 U. S. 9, 11 (1975) (per curiam). On this basis, for example, it
81-746 & 81-1172-OPINION
12 AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH
This does not mean that a State never may enact a regula-
tion touching on the woman's abortion right during the first
weeks of pregnancy. Certain regulations that have no sig-
nificant impact on the woman's exercise of her right may be
permissible where justified by important state health objec-
tives. In Danforth, supra, we unanimously upheld two Mis-
souri statutory provisions, applicable to the first trimester,
requiring the woman to provide her informed written consent
to the abortion and the physician to keep certain records,
even though comparable requirements were not imposed on
most other medical procedures. See 428 U.S., at 65-67,
79-81. The decisive factor was that the State met its burden
of demonstrating that these regulations furthered important
health-related State concerns.¹³ But even these minor regu-
lations on the abortion procedure during the first trimester
may not interfere with physician-patient consultation or with
the woman's choice between abortion and childbirth. See
id., at 81.
From approximately the end of the first trimester of preg-
nancy, the State "may regulate the abortion procedure to the
extent that the regulation reasonably relates to the preserva-
tion and protection of maternal health." Roe, 410 U. S., at
163. The State's discretion to regulate on this basis does
not, however, permit it to adopt abortion regulations that
is permissible for the States to impose criminal sanctions on the perform-
ance of an abortion by a nonphysician. Ibid.
13 For example, we concluded that recordkeeping, "if not abused or over-
done, can be useful to the State's interest in protecting the health of its
female citizens, and may be a resource that is relevant to decisions involv-
ing medical experience and judgment." 428 U. S., at 81. See infra, at
24-26 (discussing the State's interest in requiring informed consent).
"Examples of permissible state regulation in this area are require-
ments as to the qualifications of the person who is to perform the abortion;
as to the licensure of that person; as to the facility in which the procedure is
to be performed, that is, whether it must be a hospital or may be a clinic or
some other place of less-than-hospital status; as to the licensing of the facil-
ity; and the like." Roe, 410 U. S., at 163-164.
81-746 & 81-1172-OPINION
AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH 13
depart from accepted medical practice. We have rejected a
State's attempt to ban a particular second-trimester abortion
procedure, where the ban would have increased the costs and
limited the availability of abortions without promoting impor-
tant health benefits. See Danforth, 428 U. S., at 77-78. If
a State requires licensing or undertakes to regulate the per-
formance of abortions during this period, the health stand-
ards adopted must be "legitimately related to the objective
the State seeks to accomplish." Doe, 410 U. S., at 195.
III
Section 1870.03 of the Akron ordinance requires that any
abortion performed "upon a pregnant woman subsequent to
the end of the first trimester of her pregnancy"¹⁵ must be
"performed in a hospital." A "hospital" is "a general hospital
or special hospital devoted to gynecology or obstetrics which
is accredited by the Joint Commission on Accreditation of
Hospitals or by the American Osteopathic Association."
§ 1870.1(B). Accreditation by these organizations requires
compliance with comprehensive standards governing a wide
variety of health and surgical services.¹⁶ The ordinance thus
"The Akron ordinance does not define "first trimester," but elsewhere
suggests that the age of the fetus should be measured from the date of con-
ception. See § 1870.06(B)(2) (physician must inform woman of the number
of weeks elapsed since conception); § 1870.06(B)(4) (physician must inform
woman that a fetus may be viable after 22 weeks from conception). An
average pregnancy lasts approximately 38 weeks from the time of concep-
tion or, as more commonly measured, 40 weeks from the beginning of the
woman's last menstrual period. Under both methods there may be more
than a two-week deviation either way.
Because of the approximate nature of these measurements, there is no
certain method of delineating "trimesters." Frequently, the first trimes-
ter is estimated as 12 weeks following conception, or 14 weeks following
the last menstrual period. We need not attempt to draw a precise line, as
this Court-for purposes of analysis-has identified the "compelling point"
for the State's interest in health as "approximately the end of the first tri-
mester." Roe, 410 U.S., at 163. Unless otherwise indicated, all refer-
ences in this opinion to gestational age are based on the time from the be-
ginning of the last menstrual period.
"The Joint Commission on Accreditation of Hospitals (JCAH), for ex-
81-746 & 81-1172-OPINION
14 AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH
prevents the performance of abortions in outpatient facilities
that are not part of an acute-care, full-service hospital."
In the District Court plaintiffs sought to demonstrate that
this hospitalization requirement has a serious detrimental im-
pact on a woman's ability to obtain a second-trimester abor-
tion in Akron and that it is not reasonably related to the
State's interest in the health of the pregnant woman. The
District Court did not reject this argument, but rather found
the evidence "not
so convincing that it is willing to dis-
card the Supreme Court's formulation in Roe" of a line be-
tween impermissible first-trimester regulation and permissi-
ble second-trimester regulation. 479 F. Supp., at 1215.
The Court of Appeals affirmed on a similar basis. It ac-
cepted plaintiffs' argument that Akron's hospitalization re-
quirement did not have a reasonable health justification dur-
ing at least part of the second trimester, but declined to
"retreat from the 'bright line' in Roe V. Wade." 651 F. 2d, at
1210.18 We believe that the courts below misinterpreted this
ample, has established guidelines for the following services: dietetic, emer-
gency, home care, nuclear medicine, pharmaceutical, professional library,
rehabilitation, social work, and special care. See generally JCAH, Ac-
creditation Manual for Hospitals, 1983 Edition (1982).
17 Akron's ordinance distinguishes between "hospitals" and outpatient
clinics. Section 1870.02 provides that even first-trimester abortions must
be performed in "a hospital or an abortion facility." "Abortion facility" is
defined as "a clinic, physician's office, or any other place or facility in which
abortions are performed, other than a hospital." § 1870.01(G).
The Court of Appeals believed that it was bound by Gary-Northwest
Indiana Women's Services, Inc. V. Bowen, 496 F. Supp. 894 (ND Ind.
1980) (three-judge court), aff'd sub nom. Gary-Northwest Indiana Wom-
en's Services, Inc. V. Orr, 451 U. S. 931 (1981), in which an Indiana second-
trimester hospitalization requirement was upheld. Although the District
Court in that case found that "Roe does not render the constitutionality of
second trimester regulations subject to either the availability of abortions
or the improvements in medical techniques and skills," 496 F. Supp., at
901-902, it also rested the decision on the alternative ground that the plain-
tiffs had failed to provide evidence to support their theory that it was un-
reasonable to require hospitalization for dilatation and evacuation abor-
tions performed early in the second trimester. See id., at 902-903. Our
81-746 & 81-1172-OPINION
AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH 15
Court's prior decisions, and we now hold that § 1870.03 is
unconstitutional.
A
In Roe V. Wade the Court held that after the end of the
first trimester of pregnancy the State's interest becomes
compelling, and it may "regulate the abortion procedure to
the extent that the regulation reasonably relates to the pres-
ervation and protection of maternal health." 410 U. S., at
163. We noted, for example, that States could establish re-
quirements relating "to the facility in which the procedure is
to be performed, that is, whether it must be in a hospital or
may be a clinic or some other place of less-than-hospital sta-
tus." Ibid. In the companion case of Doe V. Bolton the
Court invalidated a Georgia requirement that all abortions be
performed in a hospital licensed by the State Board of Health
and accredited by the Joint Commission on Accreditation
of Hospitals. See 410 U.S., at 201. We recognized the
State's legitimate health interests in establishing, for second-
trimester abortions, "standards for licensing all facili-
ties where abortions may be performed." Id., at 195. We
found, however, that "the State must show more than [was
shown in Doe] in order to prove that only the full resources of
a licensed hospital, rather than those of some other appropri-
ately licensed institution, satisfy these health interests."
Ibid.19
We reaffirm today, see supra, at 10, n. 11, that a State's
interest in health regulation becomes compelling at approxi-
summary affirmance therefore is not binding precedent on the hospitaliza-
tion issue. See Illinois State Board of Elections V. Socialist Workers
Party, 440 U. S. 173, 180-181, 182-183 (1979).
19 We also found that the additional requirement that the licensed hospi-
tal be accredited by the JCAH was "not 'based on differences that are rea-
sonably related to the purposes of the Act in which it is found." Doe, 410
U.S., at 194 (quoting Morey V. Doud, 354 U. S. 457, 465 (1957)). We con-
cluded that, in any event, Georgia's hospital requirement was invalid be-
cause it applied to first-trimester abortions.
81-746 & 81-1172-OPINION
16 AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH
mately the end of the first trimester. The existence of a
compelling state interest in health, however, is only the be-
ginning of the inquiry. The State's regulation may be up-
held only if it is reasonably designed to further that state in-
terest. See Doe, 410 U. S., at 195. 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 tri-
mester. 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 sec-
ond trimester the State's regulation "depart[s] from accepted
medical practice," supra, at 12, the regulation may not be up-
held 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.
B
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.
The Court of Appeals noted that there was testimony that a
second-trimester abortion costs more than twice as much in a
hospital as in a clinic. See 651 F. 2d, at 1209 (in-hospital
abortion costs $850-$900, whereas a dilatation-and-evacua-
tion (D&E) abortion performed in a clinic costs $350-$400). 20
Moreover, the court indicated that second-trimester abor-
tions were rarely performed in Akron hospitals. Ibid. (only
20 National statistics indicate a similar cost difference. In 1978 the aver-
age clinic charged $284 for a D&E abortion, whereas the average hospital
charge was $435. The hospital charge did not include the physician's fee,
which ran as high as $300. See Rosoff, The Availability of Second-Trimes-
ter Abortion Services in the United States, published in Second Trimester
Abortion: Perspectives After a Decade of Experience 35 (Berger, Brenner
& Keith eds. 1981) (hereinafter Second Trimester Abortion).
81-746 & 81-1172-OPINION
AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH 17
nine second-trimester abortions performed in Akron hospi-
tals in the year before trial). 21 Thus, a second-trimester hos-
pitalization requirement may force women to travel to find
available facilities, resulting in both financial expense and ad-
ditional 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 in-
significant 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, as hospitaliza-
tion for second-trimester abortions was recommended by the
American Public Health Association (APHA), see Roe, 410
U. S., at 143-146, and the American College of Obstetricians
and Gynecologists (ACOG), see Standards for Obstetric-
Gynecologic Services 65 (4th ed. 1974). Since then, how-
ever, the safety of second-trimester abortions has increased
dramatically." The principal reason is that the D&E proce-
dure is now widely and successfully used for second-trimester
abortions. The Court of Appeals found that there was "an
abundance of evidence that D&E is the safest method of per-
forming post-first trimester abortions today." 651 F. 2d, at
1209. The availability of the D&E procedure during the in-
terval between approximately 12 and 16 weeks of pregnancy,
21 The Akron situation is not unique. In many areas of this country,
few, if any, hospitals perform second-trimester abortions. See, e. g.,
Planned Parenthood of Kansas City, Mo., Inc. V. Ashcroft, 664 F. 2d 687,
689 (CA8 1981) (second-trimester D&E abortions available at only one
hospital in Missouri); Wolfe V. Stumbo, 519 F. Supp. 22, 23 (WD Ky. 1980)
(no elective post-first-trimester abortion performed in Kentucky hospitals);
Margaret S. V. Edwards, 488 F. Supp. 181, 192 (ED La. 1980) (no hospitals
in Louisiana perform abortions after first trimester).
22 The death-to-case ratio for all second-trimester abortions in this coun-
try fell from 14.4 deaths per 100,000 abortions in 1972 to 7.6 per 100,000 in
1977. See Tyler, et al., Second-Trimester Induced Abortion in the United
States, published in Second Trimester Abortion 17-20.
23 At the time Roe was decided, the D&E procedure was used only to
perform first-trimester abortions.
81-746 & 81-1172-OPINION
18 AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH
a period during which other second-trimester abortion tech-
niques generally cannot be used,24 has meant that women de-
siring an early second-trimester abortion no longer are forced
to incur the health risks of waiting until at least the sixteenth
week of pregnancy.
For our purposes, an even more significant factor is that
experience indicates that D&E may be performed safely on
an outpatient basis in appropriate nonhospital facilities. The
evidence is strong enough to have convinced the APHA to
abandon its prior recommendation of hospitalization for all
second-trimester abortions:
"Current data show that abortions occurring in the
second trimester can be safely performed by the Dilata-
tion and Evacuation (D and E) procedure.
Require-
ments that all abortions after 12 weeks of gestation be
performed in hospitals increase the expense and inconve-
nience to the woman without contributing to the safety
of the procedure." APHA Recommended Program
Guide for Abortion Services (Revised 1979), 70 Am. J.
Public Health 652, 654 (1980) (hereinafter APHA Rec-
ommended Guide).
Similarly, the ACOG no longer suggests that all second-tri-
mester abortions be performed in a hospital. It recommends
that abortions performed in a physician's office or outpatient
clinic be limited to 14 weeks of pregnancy, but it indicates
that abortions may be performed safely in "a hospital-based
or in a free-standing ambulatory surgical facility, or in an out-
patient clinic meeting the criteria required for a free-standing
surgical facility," until 18 weeks of pregnancy. ACOG,
Standards for Obstetric-Gynecologic Services 54 (5th ed.
1982).
24 Instillation procedures, the primary means of performing a second-
trimester abortion before the development of D&E, generally cannot be
performed until approximately the 16th week of pregnancy because until
that time the amniotic sac is too small. See Grimes & Cates, Dilatation
and Evacuation, published in Second Trimester Abortion 121.
81-746 & 81-1172-OPINION
AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH 19
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," Roe, 410 U. S., at 163, con-
vincingly undercuts Akron's justification for requiring that
all second-trimester abortions be performed in a hospital.
Akron nonetheless urges that "[t]he fact that some mid-tri-
mester abortions may be done in a minimally equipped clinic
does not invalidate the regulation." Brief for Respondents
25 See also Planned Parenthood of Kansas City, Mo., Inc. V. Ashcroft,
664 F. 2d 687, 690 n. 6 (CA8 1981) (discussing testimony by Dr. Willard
Cates, Chief of Federal Abortion Surveillance for the National Centers for
Disease Control, that D&E second-trimester abortions are as safely per-
formed outside of hospitals up to the sixteenth week); APHA Recom-
mended Guide 654 (out-patient D&E is safer than all in-hospital non-D&E
abortion procedures during the second trimester).
28 At trial Akron relied largely on the former position of the various med-
ical organizations concerning hospitalization during the second trimester.
See 651 F. 2d, at 1209. The revised position of the ACOG did not occur
until after trial.
Akron also argues that the safety of nonhospital D&E abortions de-
pends on adherence to minimum standards such as those adopted by ACOG
for free-standing surgical facilities, see ACOG Standards 51-62, and that
there is no evidence that plaintiffs' clinics operate in this manner. But the
issue in this case is not whether these clinics would meet such standards if
they were prescribed by the city. Rather, Akron has gone much further
by banning all second-trimester abortions in all clinics, a regulation that
does not reasonably further the city's interest in promoting health. We
continue to hold, as we did in Doe V. Bolton, that a State may, "from and
after the end of the first trimester, adopt standards for licensing all facili-
ties where abortions may be performed so long as those standards are le-
gitimately related to the objective the State seeks to accomplish." 410
U.S., at 194-195. This includes standards designed to correct any de-
ficiencies that Akron reasonably believes exist in the clinics' present
operation.
27 The city thus implies that its hospital requirement may be sustained
because it is reasonable as applied to later D&E abortions or to all second-
trimester instillation abortions. We do not hold today that a State in no
circumstances may require that some abortions be performed in a full-serv-
ice hospital. Abortions performed by D&E are much safer, up to a point
in the development of the fetus, than those performed by instillation meth-
81-746 & 81-1172-OPINION
20 AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH
in No. 81-1172, p. 19. It is true that a state abortion regula-
tion is not unconstitutional simply because it does not corre-
spond perfectly in all cases to the asserted state interest.
But the lines drawn in a state regulation must be reasonable,
and this cannot be said of § 1870.03. By preventing the per-
formance of D&E abortions in an appropriate nonhospital
setting, Akron has imposed a heavy, and unnecessary, bur-
den 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," Danforth, 428 U.S., at 79, and
therefore unreasonably infringes upon a woman's constitu-
tional right to obtain an abortion.
IV
We turn next to § 1870.05(B), the provision prohibiting a
physician from performing an abortion on a minor pregnant
woman under the age of 15 unless he obtains "the informed
written consent of one of her parents or her legal guardian"
or unless the minor obtains "an order from a court having ju-
risdiction over her that the abortion be performed or in-
duced." The District Court invalidated this provision be-
cause "[i]t does not establish a procedure by which a minor
can avoid a parental veto of her abortion decision by demon-
strating that her decision is, in fact, informed. Rather, it re-
quires, in all cases, both the minor's informed consent and ei-
ods. See Cates & Grimes, Morbidity and Mortality, published in Second
Trimester Abortion 166-169. The evidence before us as to the need for
hospitalization concerns only the D&E method performed in the early
weeks of the second trimester. See 651 F. 2d, at 1208-1210.
23 In the United States during 1978, 82.1% of all abortions from 13-15
weeks and 24.6% of all abortions from 16-20 weeks were performed by the
D&E method. See Department of Health and Human Services, Centers
for Disease Control, Abortion Surveillance: Annual Summary 1978, Table
14, at 43 (1980).
81-746 & 81-1172-OPINION
AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH 21
ther parental consent or a court order." 479 F. Supp., at
1201. The Court of Appeals affirmed on the same basis.
The relevant legal standards are not in dispute. The
Court has held that "the State may not impose a blanket pro-
vision
requiring the consent of a parent or person in loco
parentis as a condition for abortion of an unmarried minor."
Danforth, 428 U. S., at 74. In Bellotti V. Baird, 443 U.S.
622 (1979) (Bellotti II), a majority of the Court indicated that
a State's interest in protecting immature minors will sustain
a requirement of a consent substitute, either parental or judi-
cial. See id., at 640-642 (plurality opinion for four Justices);
id., at 656-657 (WHITE, J., dissenting) (expressing approval
of absolute parental or judicial consent requirement). See
also Danforth, 428 U.S., at 102-105 (STEVENS, J., concur-
ring in part and dissenting in part). The Bellotti II plurality
cautioned, however, that the State must provide an alterna-
tive procedure whereby a pregnant minor may demonstrate
that she is sufficiently mature to make the abortion decision
herself or that, despite her immaturity, an abortion would be
in her best interests. 443 U. S., at 643-644. Under these
decisions, it is clear that Akron may not make a blanket de-
termination that all minors under the age of 15 are too imma-
ture to make this decision or that an abortion never may be in
the minor's best interests without parental approval.
Akron's ordinance does not create expressly the alterna-
tive procedure required by Bellotti II. But Akron contends
that the Ohio Juvenile Court will qualify as a "court having
jurisdiction" within the meaning of § 1870.05(B), and that "it
is not to be assumed that during the course of the juvenile
proceedings the Court will not construe the ordinance in a
manner consistent with the constitutional requirement of a
determination of the minor's ability to make an informed con-
29 The Court of Appeals upheld § 1870.05(A)'s notification requirement.
See 651 F. 2d, at 1206. The validity of this ruling has not been challenged
in this Court.
81-746 & 81-1172-OPINION
22 AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH
sent." Brief for Petitioners in No. 81-746, p. 28. Akron
concludes that the courts below should not have invalidated
§ 1870.05(B) on its face. The city relies on Bellotti V. Baird,
428 U. S. 132 (1976) (Bellotti I), in which the Court did not
decide whether a State's parental consent provisions were
unconstitutional as applied to mature minors, holding instead
that "abstention is appropriate where an unconstrued state
statute is susceptible of a construction by the state judiciary
'which might avoid in whole or in part the necessity for fed-
eral constitutional adjudication, or at least materially change
the nature of the problem." Id., at 146-147 (quoting Harri-
son V. NAACP, 360 U.S. 167, 177 (1959)). See also H.L. V.
Matheson, 450 U. S. 398 (1981) (refusing to decide whether
parental notice statute would be constitutional as applied to
mature minors).30
We do not think that the abstention principle should have
been applied here. It is reasonable to assume, as we did in
Bellotti I, supra, and Matheson, supra, that a state court
presented with a state statute specifically governing abortion
consent procedures for pregnant minors will attempt to con-
strue the statute consistently with constitutional require-
ments. This suit, however, concerns a municipal ordinance
that creates no procedures for making the necessary deter-
minations. Akron seeks to invoke the Ohio statute govern-
ing juvenile proceedings, but that statute neither mentions
minors' abortions nor suggests that the Ohio Juvenile Court
has authority to inquire into a minor's maturity or emancipa-
30 The Court's primary holding in Matheson was that the pregnant minor
who questioned Utah's abortion consent requirement on the ground that it
impermissibly applied to mature or emancipated minors lacked standing to
raise that argument since she had not alleged that she or any member of
her class was mature or emancipated. 450 U. S., at 406. No such stand-
ing problem exists here, however, as the physician plaintiff, who is subject
to potential criminal liability for failure to comply with the requirements of
§ 1870.05(B), has standing to raise the claims of his minor patients. See
Danforth, 428 U. S., at 62; Doe V. Bolton, 410 U. S., at 188-189; Bellotti
II, 443 U. S., at 627 n. 5 (plurality opinion).
81-746 & 81-1172-OPINION
AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH 23
tion.³ 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." Bellotti II, 443 U. S., at 643, n. 23 (plu-
rality opinion). We therefore affirm the Court of Appeals'
judgment that § 1870.05(B) is unconstitutional.
V
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 con-
sent 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 com-
plications that may result from an abortion, and the availabil-
ity of agencies to provide her with assistance and information
31 The Ohio Juvenile Court has jurisdiction over any child "alleged to be a
juvenile traffic offender, delinquent, unruly, abused, neglected, or depend-
ent." Ohio Rev. Code Ann. § 2151.23. The only category that arguably
could encompass a pregnant minor desiring an abortion would be the "ne-
glected" child category. A neglected child is defined as one ]hose par-
ents, guardian or custodian neglects or refuses to provide him with proper
or necessary subsistence, education, medical or surgical care, or other care
necessary for his health, morals, or well being." § 2151.03. Even assum-
ing that the Ohio courts would construe these provisions as permitting a
minor to obtain judicial approval for the "proper or necessary
medical
or surgical care" of an abortion, where her parents had refused to provide
that care, the statute makes no provision for a mature or emancipated
minor completely to avoid hostile parental involvement by demonstrating
to the satisfaction of the court that she is capable of exercising her constitu-
tional right to choose an abortion. On the contrary, the statute requires
that the minor's parents be notified once a petition has been filed,
§ 2151.28, a requirement that in the case of a mature minor seeking an
abortion would be unconstitutional. See H.L. V. Matheson, 450 U. S. 398,
420 (1981) (POWELL, J., concurring); id., at 428, n. 3 (MARSHALL, J.,
dissenting).
81-746 & 81-1172-OPINION
24 AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH
with respect to birth control, adoption, and childbirth.
§ 1870.06(B). In addition, the attending physician must in-
form 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).
The District Court found that § 1870.06(B) was unconstitu-
tional, but that § 1870.06(C) was related to a valid state inter-
est in maternal health. See 479 F. Supp., at 1203-1204.
The Court of Appeals concluded that both provisions were
unconstitutional. See 651 F. 2d, at 1207. We affirm.
A
In Danforth, supra, we upheld a Missouri law requiring a
pregnant woman to "certif[y] in writing her consent to the
abortion and that her consent is informed and freely given
and is not the result of coercion." 428 U.S., at 85. We
explained:
"The decision to abort
is an important, and often a
stressful one, and it is desirable and imperative that it
be made with full knowledge of its nature and conse-
quences. The woman is the one primarily concerned,
and her awareness of the decision and its significance
may be assured, constitutionally, by the State to the ex-
tent of requiring her prior written consent." Id., at 67.
We rejected the view that "informed consent" was too vague
a term, construing it to mean "the giving of information to
the patient as to just what would be done and as to its conse-
quences. To ascribe more meaning than this might well con-
fine the attending physician in an undesired and uncomfort-
able straitjacket in the practice of his profession." Id., at 67,
n. 8.
The validity of an informed consent requirement thus rests
on the State's interest in protecting the health of the preg-
81-746 & 81-1172-OPINION
AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH 25
nant woman. The decision to have an abortion has "implica-
tions far broader than those associated with most other kinds
of medical treatment," Bellotti II, 443 U. S., at 649 (plurality
opinion), and thus the State legitimately may seek to ensure
that it has been made "in the light of all attendant
circumstances-psychological and emotional as well as physi-
cal-that might be relevant to the well-being of the patient."
Colautti V. Franklin, 439 U. S. 379, 394 (1979). 32 This does
not mean, however, that a State has unreviewable authority
to decide what information a woman must be given before she
chooses to have an abortion. It remains primarily the
responsibility of the physician to ensure that appropriate in-
formation is conveyed to his patient, depending on her par-
ticular circumstances. Danforth's recognition of the State's
interest in ensuring that this information be given will not
justify abortion regulations designed to influence the wom-
an's informed choice between abortion or childbirth.
B
Viewing the city's regulations in this light, we believe that
§ 1870.06(B) attempts to extend the State's interest in ensur-
ing "informed consent" beyond permissible limits. First, it
is fair to say that much of the information required is de-
signed not to inform the woman's consent but rather to per-
#2 In particular, we have emphasized that a State's interest in protecting
immature minors and in promoting family integrity gives it a special inter-
est in ensuring that the abortion decision is made with understanding and
after careful deliberation. See, e. g., H.L. V. Matheson, 450 U.S. 398,
411 (1981); id., at 419-420 (POWELL, J., concurring); id., at 421-424 (STE-
VENS, J., concurring in judgment).
33 A State is not always foreclosed from asserting an interest in whether
pregnancies end in abortion or childbirth. In Maher V. Roe, 432 U. S. 464
(1977), and Harris V. McRae, 448 U. S. 297 (1980), we upheld govern-
mental spending statutes that reimbursed indigent women for childbirth
but not abortion. This legislation to further an interest in preferring
childbirth over abortion was permissible, however, only because it did not
add any "restriction on access to abortion that was not already there."
Maher, 432 U. S., at 474.
81-746 & 81-1172-OPINION
26 AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH
suade 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. See 410 U.S., at 159-162.
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 specu-
lation 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 pyschological complications of abortion,* is a
"parade of horribles" intended to suggest that abortion is a
particularly dangerous procedure.
An additional, and equally decisive, objection to
§ 1870.06(B) is its intrusion upon the discretion of the preg-
nant woman's physician. This provision specifies a litany of
information that the physician must recite to each woman re-
gardless of whether in his judgment the information is rele-
vant to her personal decision. For example, even if the phy-
34 This description must include, but not be limited to, "appearance, mo-
bility, tactile sensitivity, including pain, perception or response, brain and
heart function, the presence of internal organs and the presence of external
members." The District Court found that "there was much evidence that
it is impossible to determine many of [these] items,
such as the 'unborn
child's' sensitivity to pain." 479 F. Supp., at 1203.
35 The District Court found that "there was much evidence that rather
than being 'a major surgical procedure' as the physician is required to state
an abortion generally is considered a 'minor surgical procedure."
479 F. Supp., at 1203.
36 Section 1870.06(B)(5) requires the physician to state
"That abortion is a major surgical procedure which can result in serious
complications, including hemorrhage, perforated uterus, infection, men-
strual disturbances, sterility and miscarriage and prematurity in subse-
quent pregnancies; and that abortion may leave essentially unaffected or
may worsen any existing psychological problems she may have, and can re-
sult in severe emotional disturbances."
81-746 & 81-1172-OPINION
AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH 27
sician believes that some of the risks outlined in subsection
(5) are nonexistent for a particular patient, he remains ob-
ligated to describe them to her. In Danforth the Court
warned against placing the physician in just such an "unde-
sired and uncomfortable straitjacket." 428 U. S., at 67, n. 8.
Consistent with its interest in ensuring informed consent, a
State may require that a physician make certain that his pa-
tient understands the physical and emotional implications of
having an abortion. But Akron has gone far beyond merely
describing the general subject matter relevant to informed
consent. By insisting upon recitation of a lengthy and inflex-
ible list of information, Akron unreasonably has placed "ob-
stacles in the path of the doctor upon whom [the woman is]
entitled to rely for advice in connection with her decision."
Whalen V. Roe, 429 U. S. 589, 604 n. 33 (1977).37
C
Section 1870.06(C) presents a different question. Under
this provision, the "attending physician" must inform the
woman
"of the particular risks associated with her own preg-
nancy and the abortion technique to be employed includ-
ing providing her with at least a general description of
37 Akron has made little effort to defend the constitutionality of
§§ 1870.06(B)(3), (4), and (5), but argues that the remaining four subsec-
tions of the provision are valid and severable. These four subsections
require that the patient be informed by the attending physician of the fact
that she is pregnant, § 1870.06(B)(1), the gestational age of the fetus,
§ 1870.06(B)(2), the availability of information on birth control and adop-
tion, § 1870.06(B)(6), and the availability of assistance during pregnancy
and after childbirth, § 1870.06(B)(7). This information, to the extent it is
accurate, certainly is not objectionable, and probably is routinely made
available to the patient. We are not persuaded, however, to sever these
provisions from the remainder of § 1870.06(B). They require that all of the
information be given orally by the attending physician when much, if not all
of it, could be given by a qualified person assisting the physician. See
infra, at 30-32.
81-746 & 81-1172-OPINION
28 AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH
the medical instructions to be followed subsequent to the
abortion in order to insure her safe recovery, and shall in
addition provide her with such 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."
The information required clearly is related to maternal
health and to the State's legitimate purpose in requiring in-
formed consent. Nonetheless, the Court of Appeals deter-
mined that it interfered with the physician's medical judg-
ment "in exactly the same way as section 1870.06(B). It
requires the doctor to make certain disclosures in all cases,
regardless of his own professional judgment as to the de-
sirability of doing so." 651 F. 2d, at 1207. This was a mis-
application of Danforth. There we construed "informed con-
sent" to mean "the giving of information to the patient as to
just what would be done and as to its consequences." 428
U.S., at 67 n. 8. We see no significant difference in Akron's
requirement that the woman be told of the particular risks of
her pregnancy and the abortion technique to be used, and be
given general instructions on proper post-abortion care.
Moreover, in contrast to subsection (B), § 1870.06(C) merely
describes in general terms the information to be disclosed.
It properly leaves the precise nature and amount of this dis-
closure to the physician's discretion and "medical judgment."
The Court of Appeals also held, however, that § 1870.06(C)
was invalid because it required that the disclosure be made
by the "attending physician." The court found that "the
practice of all three plaintiff clinics has been for the counsel-
ing to be conducted by persons other than the doctor who
performs the abortion," 651 F. 2d, at 1207, and determined
that Akron had not justified requiring the physician person-
ally to describe the health risks. Akron challenges this hold-
ing as contrary to our cases that emphasize the importance of
the physician-patient relationship. In Akron's view, as in
81-746 & 81-1172-OPINION
AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH 29
the view of the dissenting judge below, the "attending physi-
cian" requirement "does no more than seek to ensure that
there is in fact a true physician-patient relationship even for
the woman who goes to an abortion clinic." 651 F. 2d, at
1217 (Kennedy, J., concurring in part and dissenting in part).
Requiring physicians personally to discuss the abortion de-
cision, its health risks, and consequences with each patient
may in some cases add to the cost of providing abortions,
though the record here does not suggest that ethical physi-
cians will charge more for adhering to this typical element of
the physician-patient relationship. Yet in Roe and subse-
quent cases we have "stressed repeatedly the central role of
the physician, both in consulting with the woman about
whether or not to have an abortion, and in determining how
any abortion was to be carried out." Colautti V. Franklin,
439 U. S. 379, 387 (1979). Moreover, we have left no doubt
that, to ensure the safety of the abortion procedure, the
States may mandate that only physicians perform abortions.
See Connecticut V. Menillo, 423 U. S. 9, 11 (1975); Roe, 410
U. S., at 165.
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 un-
pressured; the critical factor is whether she obtains the nec-
essary information and counseling from a qualified person,
not the identity of the person from whom she obtains it.38
38 We do not suggest that appropriate counseling consists simply of a re-
cital of pertinent medical facts. On the contrary, it is clear that the needs
of patients for information and an opportunity to discuss the abortion deci-
sion will vary considerably. It is not disputed that individual counseling
should be available for those persons who desire or need it. See, e. g.,
National Abortion Federation Standards 1 (1981) (hereinafter NAF Stand-
ards); Planned Parenthood of Metropolitan Washington, D. C., Inc., Guide-
lines for Operation, Maintenance, and Evaluation of First Trimester Out-
patient Abortion Facilities 5 (1980). Such an opportunity may be
81-746 & 81-1172-OPINION
30 AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH
Akron and intervenors strongly urge that the nonphysician
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 be-
fore us we cannot say that the woman's consent to the abor-
tion will not be informed if a physician delegates the counsel-
ing task to another qualified individual.
In so holding, we do not suggest that the State is powerless
to vindicate its interest in making certain the "important"
and "stressful" decision to abort "is made with full knowledge
of its nature and consequences." Danforth, 428 U. S., at 67.
Nor do we imply that a physician may abdicate his essential
role as the person ultimately responsible for the medical as-
pects of the decision to perform the abortion.³ A State may
define the physician's responsibility to include verification
that adequate counseling has been provided and that the
woman's consent is informed. In addition, the State may
establish reasonable minimum qualifications for those people
who perform the primary counseling function. See, e. g.,
Doe, 410 U.S., at 195 (State may require a medical facility
especially important for minors alienated or separated from their parents.
See APHA Recommended Guide 654. Thus, for most patients, mere pro-
vision of a printed statement of relevant information is not counseling.
This Court's consistent recognition of the critical role of the physician
in the abortion procedure has been based on the model of the competent,
conscientious, and ethical physician. See Doe, 410 U. S., at 196-197. We
have no occasion in this case to consider conduct by physicians that may
depart from this model. Cf. Danforth, 428 U. S., at 91-92, n. 2 (Stewart,
J., concurring).
Cf. ACOG Standards 54 ("If counseling has been provided elsewhere,
the physician performing the abortion should verify that the counseling has
taken place."
41 The importance of well-trained and competent counselors is not in dis-
pute. See, e. g., APHA Recommended Guide 654 ("Abortion counselors
may be highly skilled physicians as well as trained, sympathetic individuals
working under appropriate supervision."); NAF Standards 2 (counselors
must be trained initially at least in the following subjects: sexual and re-
productive health; abortion technology; contraceptive technology; short-
term counseling skills; community resources and referrals; informed con-
sent; agency policies and practices.").
81-746 & 81-1172-OPINION
AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH 31
"to possess all the staffing and services necessary to perform
an abortion safely"). In light of these alternatives, we be-
lieve that it is unreasonable for a State to insist that only a
physician is competent to provide the information and coun-
seling relevant to informed consent. We affirm the judg-
ment of the Court of Appeals that § 1870.06(C) is invalid.
VI
The Akron ordinance prohibits a physician from perform-
ing an abortion until 24 hours after the pregnant woman signs
a consent form. § 1870.07.4 The District Court upheld this
provision on the ground that it furthered Akron's interest in
ensuring "that a woman's abortion decision is made after
careful consideration of all the facts applicable to her particu-
lar situation." 479 F. Supp., at 1204. The Court of Appeals
reversed, finding that the inflexible waiting period had "no
medical basis," and that careful consideration of the abortion
decision by the woman "is beyond the state's power to re-
quire." 651 F. 2d, at 1208. We affirm the Court of Appeals'
judgment.
The District Court found that the mandatory 24-hour wait-
ing period increases the cost of obtaining an abortion by re-
quiring the woman to make two separate trips to the abortion
facility. See 479 F. Supp., at 1204. Plaintiffs also contend
that because of scheduling difficulties the effective delay may
be longer than 24 hours, and that such a delay in some cases
could increase the risk of an abortion. Akron denies that
any significant health risk is created by a 24-hour waiting pe-
riod, and argues that a brief period of delay-with the oppor-
tunity for reflection on the counseling received-often will be
beneficial to the pregnant woman.
We find that Akron has failed to demonstrate that any le-
42 This provision does not apply if the physician certifies in writing that
"there is an emergency need for an abortion to be performed or ind-
uced such that continuation of the pregnancy poses an immediate threat
and grave risk to the life or physical health of the pregnant woman."
§ 1870.12.
81-746 & 81-1172-OPINION
32 AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH
gitimate state interest is furthered by an arbitrary and in-
flexible 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 re-
quiring 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." Colautti V. Frank-
lin, 439 U. S. 379, 387 (1979). In accordance with the ethical
standards of the profession, a physician will advise the pa-
tient to defer the abortion when he thinks this will be benefi-
cial 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.
VII
Section § 1870.16 of the Akron ordinance requires physi-
cians performing abortions to "insure that the remains of the
unborn child are disposed of in a humane and sanitary man-
ner." 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 provi-
sion, declining to sever the word "humane" in order to uphold
the requirement that disposal be "sanitary." See 651 F. 2d,
at 1211. We affirm this judgment.
Akron contends that the purpose of § 1870.16 is simply "to
preclude the mindless dumping of aborted fetuses on garbage
piles." Planned Parenthood Ass'n V. Fitzpatrick, 401
"The ACOG recommends that a clinic allow "sufficient time for reflec-
tion prior to making an informed decision." ACOG Standards 54. In con-
trast to § 1870.07's mandatory waiting period, this standard recognizes
that the time needed for consideration of the decision varies depending on
the particular situation of the patient and how much prior counseling she
has received.
81-746 & 81-1172-OPINION
AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH 33
F. Supp. 554, 573 (ED Pa. 1975) (three-judge court) (quoting
State's characterization of legislative purpose), aff'd mem.
sub nom. Franklin V. Fitzpatrick, 428 U. S. 901 (1976).4 It
is far from clear, however, that this provision has such a lim-
ited intent. The phrase "humane and sanitary" does, as the
Court of Appeals noted, suggest a possible intent to "man-
date some sort of 'decent burial' of an embryo at the earliest
stages of formation." 651 F. 2d, at 1211. This level of un-
certainty is fatal where criminal liability is imposed. See
Colautti V. Franklin, 439 U. S. 379, 396 (1979). Because
§ 1870.16 fails to give a physician "fair notice that his contem-
plated conduct is forbidden," United States V. Harriss, 347
U. S. 612, 617 (1954), we agree that it violates the Due Proc-
ess Clause.
VIII
We affirm the judgment of the Court of Appeals invalidat-
ing those sections of Akron's "Regulations of Abortions" ordi-
nance 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 per-
formed in a hospital, is reversed.
It is 80 ordered.
44 In Fitzpatrick the District Court accepted Pennsylvania's contention
that its statute governing the "humane" disposal of fetal remains was de-
signed only to prevent such "mindless dumping." That decision is distin-
guishable because the statute did not impose criminal liability, but merely
provided for the promulgation of regulations to implement the disposal re-
quirement. See 401 F. Supp., at 572-573.
45 We are not persuaded by Akron's argument that the word "humane"
should be severed from the statute. The uncertain meaning of the phrase
"humane and sanitary" leaves doubt as to whether the city would have en-
acted § 1870.16 with the word "sanitary" alone. Akron remains free, of
course, to enact more carefully drawn regulations that further its legiti-
mate interest in proper disposal of fetal remains.
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been pre-
pared by the Reporter of Decisions for the convenience of the reader. See
United States V. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
CITY OF AKRON v. AKRON CENTER FOR
REPRODUCTIVE HEALTH, INC., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 81-746. Argued November 30, 1982-Decided June 15, 1983*
An Akron, Ohio, ordinance, inter alia, (1) requires all abortions performed
after the first trimester of pregnancy to be performed in a hospital
(§ 1870.03); (2) prohibits a physician from performing an abortion on an
unmarried minor under the age of 15 unless he obtains the consent of one
of her parents or unless the minor obtains an order from a court having
jurisdiction over her that the abortion be performed (§ 1870.05(B)); (3)
requires that the attending physician inform his patient of the status of
her pregnancy, the development of her fetus, the date of possible viabil-
ity, 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)), and also inform her of the particular risks associated with
her pregnancy and the abortion technique to be employed (§ 1870.06(C));
(4) prohibits a physician from performing an abortion until 24 hours after
the pregnant woman signs a consent form (§ 1870.07); and (5) requires
physicians performing abortions to ensure that fetal remains are dis-
posed of in a "human and sanitary manner" (§ 1870.16). A violation of
the ordinance is punishable as a misdemeanor. Respondents and cross-
petitioners filed an action in Federal District Court against petition-
ers and cross-respondents, challenging the ordinance. The District
Court invalidated §§ 1870.05(B), 1870.06(B), and 1870.16, but upheld
§§ 1870.03, 1870.06(C), and 1870.07. The Court of Appeals affirmed as
to §§ 1870.03, 1870.05(B), 1870.06(B), and 1870.16, but reversed as to
§§ 1870.06(C) and 1870.07.
Held:
1. Section 1870.03 is unconstitutional. Pp. 12-20.
(a) While a State's interest in health regulation becomes compelling
*Together with No. 81-1172, Akron Center for Reproductive Health,
Inc., et al. V. City of Akron et al., also on certiorari to same court.
I
II
AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH
Syllabus
at approximately the end of the first trimester, the State's regulation
may be upheld only if it is reasonably designed to further that interest.
If during a substantial portion of the second trimester the State's regula-
tion departs from accepted medical practice, it 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 may be furthered. Pp. 14-16.
(b) It cannot be said that the lines drawn in § 1870.03 are reason-
able. By preventing the performance of dilatation-and-evacuation abor-
tions 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 tri-
mester and therefore unreasonably infringes upon a woman's constitu-
tional right to obtain an abortion. Pp. 16-20.
2. Section 1870.05(B) is unconstitutional as making a blanket deter-
mination that all minors under the age of 15 are too immature to make an
abortion decision or that an abortion never may be in the minor's best
interests without parental approval. Under circumstances where the
Ohio statute governing juvenile proceedings does not mention minors'
abortions nor suggest that the Ohio Juvenile Court has authority to in-
quire into a minor's maturity or emancipation, § 1870.05(B), as applied in
juvenile proceedings, is not reasonably susceptible of being construed to
create an opportunity for case-by-case evaluations of the maturity of
pregnant minors. Pp. 20-23.
3. Sections 1870.06(B) and 1870.06(C) are unconstitutional. Pp.
23-31.
(a) The validity of an informed consent requirement rests on the
State's interest in protecting the pregnant woman's health. But this
does not mean that a State has unreviewable authority to decide what
information a woman must be given before she chooses to have an abor-
tion. A State may not adopt regulations designed to influence the wom-
an's informed choice between abortion or childbirth. Pp. 24-25.
(b) Section 1870.06(B) attempts to extend the State's interest in en-
suring "informed consent" beyond permissible limits, and intrudes upon
the discretion of the pregnant woman's physician. While a State may
require a physician to make certain that his patient understands the
physical and emotional implications of having an abortion, § 1870.06(B)
goes far beyond merely describing the general subject matter relevant to
informed consent. By insisting upon recitation of a lengthy and inflex-
ible list of information, the section unreasonably has placed obstacles in
the path of the physician. Pp. 25-27.
AKRON v. AKRON CENTER FOR REPRODUCTIVE HEALTH
III
Syllabus
(c) With respect to § 1870.06(C)'s requirement that the "attending
physician" must inform the woman of the specified information, it is un-
reasonable for a State to insist that only a physician is competent to pro-
vide the information and counseling relevant to informed consent. Pp.
27-31.
4. Section 1870.07 is unconstitutional. Akron has failed to demon-
strate that any legitimate state interest is furthered by an arbitrary and
inflexible waiting period. There is no evidence that the abortion proce-
dure will be performed more safely. Nor does it appear 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. Pp. 31-32.
5. Section 1870.16 violates the Due Process Clause by failing to give a
physician fair notice that his contemplated conduct is forbidden. Pp.
32-33.
651 F. 2d 1198, affirmed in part and reversed in part.
POWELL, J., delivered the opinion of the Court, in which BURGER, C. J.,
and BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined.
O'CONNOR, J., filed a dissenting opinion, in which WHITE and REHNQUIST,
JJ., joined.