Constitutional and Human Rights Olin di chal Bleri 051 held that the Due Process Clause of the Fourteenth Amendment incorpo- rates most of the Bill of Rights against the States. See, e.g., Duncan v. Louisiana, 391 U.S. 145, 147-148, 88 S.Ct. 1444, 1446,20 L.Ed.2d 491 (1968). It is tempting, as a means of curbing the discretion of federal ready guaranteed to the individual against federal interference by the ex- judges, to suppose that liberty encompasses no more than those rights al- press provisions of the first eight Amendments to the Constitution. See Adamson v. California, 332 U.S. 46, 68-92, 67 S.Ct. 1672, 1683-1697, 91 L.Ed. 1903 (1947) (Black, J., dissenting). But of course this Court has never accepted that view. It is also tempting, for the same reason, to suppose that the Due Process Clause protects only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified. See Michael H. v. Gerald D., 491 U.S. 110, 127-128, n. 6, 109 S.Ct. 2333, 2344-2345, n. 6, 105 L.Ed.2d 91 (1989) (opinion of SCALIA, J.). But such a view would be inconsistent with our law. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. We have vindicated this principle before. Marriage is mentioned nowhere in the Bill of Rights and interracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia, 388 U.S. 1, 12,87 S.Ct. 1817, 1824, 18 L.Ed.2d 1010 (1967) (relying, in an opinion for eight Justices, on the Due Process Clause). Similar examples may be found in Turner v. Safley, 482 U.S. 78, 94-99, 107 S.Ct. 2254, 2265- 2267, 96 L.Ed.2d 64 (1987); in Carey v. Population Services Interna- tional, 431 U.S. 678, 684-686, 97 S.Ct. 2010, 2015-2017, 52 L.Ed.2d 675 (1977); in Griswold v. Connecticut, 381 U.S. 479, 481-482, 85 S.Ct. 1678, 1680-1681, 14 L.Ed.2d 510 (1965), as well as in the separate opin- ions of a majority of the Members of the Court in that case, id., at 486- 488, 85 S.Ct., at 1682-1683 (Goldberg, J., joined by Warren, C.J., and 502, 85 S.Ct., at 1690-1691 (Harlan, J., concurring in judgment) (same), Brennan, J., concurring) (expressly relying on due process), id., at 500- id., at 502-507, 85 S.Ct., at 1691-1694 (WHITE, J., concurring in judg- ment) (same); in Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925); and in Meyer v. Nebraska, 262 U.S. 390, 399-403, 43 S.Ct. 625, 627, 67 L.Ed. 1042 (1923). time of the adoption of the Fourteenth Amendment marks the outer limits Neither the Bill of Rights nor the specific practices of States at the of the substantive sphere of liberty which the Fourteenth Amendment pomene e faimo Justice Iterson udanzas andrell umg unu 180/1 px 333 The Clash over Legal Thinking in Contemporary Legal Issues to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effec tive right to elect the procedure. Second is a confirmation of the State's tions for pregnancies which endanger the woman's life or health. And power to restrict abortions after fetal viability, if the law contains excep third is the principle that the State has legitimate interests from the outsen of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict another; and we adhere to each. one II Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall "deprive any person of life, liberty, or property, without due process of law.” The controlling word in the cases before us is "liberty.” Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years, since Mugler v. Kansas, 123 U.S. 623, 660-661, 8 S.Ct. 273, 291, 31 L.Ed. 205 (1887), the Clause has been understood to contain a substantive component as well , one “barring certain government actions regardless of the fairness of the procedures used to implement them.” Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986). As Justice Brandeis (joined by Justice Holmes) observed, “djespite arguments to the con- trary which had seemed to me persuasive, it is settled that the due proc- ess clause of the Fourteenth Amendment applies to matters of substan- tive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitu- tion from invasion by the States.” Whitney v. California, 274 U.S. 357, 373, 47 S.Ct. 641, 647, 71 L.Ed. 1095 (1927) (concurring opinion). "[T]he guaranties of due process, though having their roots in Magna Carta's ‘per legem terrae' [by the law of the land] and considered as pro- cedural safeguards ‘against executive usurpation and tyranny,' have in this country “become bulwarks also against arbitrary legislation.'” Poe v. Ullman, 367 U.S. 497, 541, 81 S.Ct. 1752, 1776, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting from dismissal on jurisdictional grounds) (quoting Hurtado v. California, 110 U.S. 516, 532, 4 S.Ct. 111, 119, 28 L.Ed. 232 teenth Amendment are those recognized by the Bill of Rights. We have The most familiar of the substantive liberties protected by the Four- (1884)). 332 Constitutional and Human Rights with these three requirements in the event of a "medical emergency," 3209(c). In addition to the above provisions regulating the performance which is defined in § 3203 of the Act. See $$ 3203, 3205(a), 3206(a), of abortions, the Act imposes certain reporting requirements on facilities that provide abortion services. $$ 3207(b), 3214(a), 3214(f). Before any of these provisions took effect, the petitioners, who are five abortion clinics and one physician representing himself as well as a class of physicians who provide abortion services, brought this suit seek- ing declaratory and injunctive relief. Each provision was challenged as unconstitutional on its face. The District Court entered a preliminary in- junction against the enforcement of the regulations, and, after a 3-day bench trial, held all the provisions at issue here unconstitutional, entering a permanent injunction against Pennsylvania's enforcement of them. 744 F.Supp. 1323 (ED Pa.1990). The Court of Appeals for the Third Circuit affirmed in part and reversed in part, upholding all of the regulations ex- cept for the husband notification requirement. 947 F.2d 682 (1991). We granted certiorari. 502 U.S. 1056, 112 S.Ct. 931, 117 L.Ed.2d 104 (1992). The Court of Appeals found it necessary to follow an elaborate course of reasoning even to identify the first premise to use to determine whether the statute enacted by Pennsylvania meets constitutional stan- dards. See 947 F.2d, at 687-698. And at oral argument in this Court, the attorney for the parties challenging the statute took the position that none of the enactments can be upheld without overruling Roe v. Wade. Tr. of Oral Arg. 5-6. We disagree with that analysis; but we acknowledge that our decisions after Roe cast doubt upon the meaning and reach of its holding. Further, THE CHIEF JUSTICE admits that he would overrule the central holding of Roe and adopt the rational relationship test as the sole criterion of constitutionality. See post, at 2855, 2867. State and fed- eral courts as well as legislatures throughout the Union must have guid- ance as they seek to address this subject in conformance with the Consti- procedures. tution. Given these premises, we find it imperative to review once more the principles that define the rights of the woman and the legitimate au- thority of the State respecting the termination of pregnancies by abortion After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, We are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed. holding, the holding we reaffirm, has three parts. First is a recognition of It must be stated at the outset and with clarity that Roe's essential the right of the woman to choose to have an abortion before viability and 331 The Clash over Legal Thinking in Contemporary Legal Issues with any of the three rights. In the United States, due process has been interpreted to enable courts to strike down certain laws based on their substance, even if the procedure by which those laws were enacted and enforced was just. Following Casey is another excerpt from Michael Paulsen's article, “Accusing Justice.” In it, Paulsen makes a natural law argument against abortion. As you read, compare the worldview expressed in the article with the worldview expressed in Casey. Planned Parenthood v. Casey" Justice O'CONNOR, Justice KENNEDY, and Justice SOUTER an- nounced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, V-A, V-C, and VI, an opinion with respect to Part V-E, in which Justice STEVENS joins, and an opinion with respect to Parts IV, V-B, and V-D. I Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years af- ter our holding that the Constitution protects a woman's right to termi- nate her pregnancy in its early stages, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), that definition of liberty is still ques- tioned. Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe. See Brief for Respondents 104-117; Brief for United States as Amicus Curiae 8. At issue in these cases are five provisions of the Pennsylvania Abor- tion Control Act of 1982, as amended in 1988 and 1989. 18 Pa. Cons. Stat. $$ 3203-3220 (1990). Relevant portions of the Act are set forth in the Appendix. Infra, at 2833. The Act requires that a woman seeking an specifies that she be provided with certain information at least 24 hours abortion give her informed consent prior to the abortion procedure, and provides for a judicial bypass option if the minor does not wish to of requires that, unless certain exceptions apply, a married woman seeking before the abortion is performed. § 3205. For a minor to obtain an abor- tion, the Act requires the informed consent of one of her parents, but cannot obtain a parent's consent. § 3206. Another provision of the Act an abortion must sign a statement indicating that she has notified her husband of her intended abortion. § 3209. The Act exempts compliance * Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992). 330 Chapter 7 Constitutional and Human Rights A. Abortion Rights Introduction In the last 60 years or so, many of the most significant and contro- versial legal issues have involved rights claims by individuals or groups. In the United States, claimants have increasingly requested legal protec- tion for constitutional rights based on the Bill of Rights or the Fourteenth Amendment. Around the world, individuals have increasingly sought en- forcement of human rights enumerated in international conventions rati- fied since the end of World War II. This chapter examines the way courts have responded to both sets of rights claims. Section A addresses the claim that the Fourteenth Amendment to the constitution protects a woman's right to obtain an abortion. The Supreme Court first concluded that the Fourteenth Amendment protects such a right in its 1973 decision, Roe v. Wade, 410 U.S. 113 (1973). In later de- cisions, the Court considered the extent to which states could put limita- tions on that right. The next piece is an excerpt from one of those deci- sions, Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). In it, the Supreme Court considered whether certain re- strictions placed by Pennsylvania on abortion violated the Due Process clause of the Fourteenth Amendment. The case is included here for the legal philosophy seen in the deci- sion, not for the details of the constitutional analysis. Nonetheless, the following may be helpful as background. The Fourteenth Amendment states in relevant part: “nor shall any state deprive any person of life, lib- erty, or property without due process of law.” The readings in Chapter 2 reveal that this amendment comes from the common law, which pro- tected citizens' life, liberty, and property from government oppression by לל requiring the government to follow just procedures before interfering 329
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