Harry Blackmun

“ But while a State has “legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child,” ante, at 2804, legitimate interests are not enough. To overcome the burden of strict scrutiny, the interests must be compelling. The question then is how best to accommodate the State's interest in potential human life with the constitutional liberties of pregnant women. ”

“ For example, does the Eighth Amendment impose any limits on the degree or kind of punishment a State can inflict upon physicians who perform, or women who undergo, abortions? What effect would differences among States in their approaches to abortion have on a woman's right to engage in interstate travel? Does the First Amendment permit States that choose not to criminalize abortion to ban all advertising providing information about where and how to obtain abortions? ”

“ Putting aside the fact that what he advocates is nothing short of an abdication by the Court of its constitutional responsibilities, Justice SCALIA is uncharacteristically naive if he thinks that overruling Roe and holding that restrictions on a woman's right to an abortion are subject only to rational-basis review will enable the Court henceforth to avoid reviewing abortion-related issues. State efforts to regulate and prohibit abortion in a post- Roe world undoubtedly would raise a host of distinct and important constitutional questions meriting review by this Court. ”

“ II Today, no less than yesterday, the Constitution and decisions of this Court require that a State's abortion restrictions be subjected to the strictest of judicial scrutiny. Our precedents and the joint opinion's principles require us to subject all non- de-minimis abortion regulations to strict scrutiny. Under this standard, the Pennsylvania statute's provisions requiring content-based counseling, a 24-hour delay, informed parental consent, and reporting of abortion-related information must be invalidated. ”

“ Decisional autonomy must limit the State's power to inject into a woman's most personal deliberations its own views of what is best. The State may promote its preferences by funding childbirth, by creating and maintaining alternatives to abortion, and by espousing the virtues of family ”

“ The final, and more genuine, criticism of the trimester framework is that it fails to find the State's interest in potential human life compelling throughout pregnancy. No Member of this Court-nor for that matter, the Solicitor General, Tr. of Oral Arg. 42-has ever questioned our holding in Roe that an abortion is not “the termination of life entitled to Fourteenth Amendment protection.” 410 U.S., at 159, 93 S.Ct., at 729-730. Accordingly, a State's interest in protecting fetal life is not grounded in the Constitution. ”

“ Are [the distinctions entailed in the trimester framework] any finer, or more ‘regulatory,’ than the distinctions we have often drawn in our First Amendment jurisprudence, where, for example, we have held that a ‘release time’ program permitting public-school students to leave school grounds during school hours to receive religious instruction does not violate the Establishment Clause, even though a release-time program permitting religious instruction on school grounds does violate the Clause? ”

“ In Roe v. Wade, this Court correctly applied these principles to a woman's right to choose abortion.
State restrictions on abortion violate a woman's right of privacy in two ways. First, compelled continuation of a pregnancy infringes upon a woman's right to bodily integrity by imposing substantial physical intrusions and significant risks of physical harm. During pregnancy, women experience dramatic physical changes and a wide range of health consequences. Labor and delivery pose additional health risks and physical demands. ”

“ As the joint opinion recognizes, “the means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it.” Ante, at 2820.
In sum, Roe's requirement of strict scrutiny as implemented through a trimester framework should not be disturbed. No other approach has gained a majority, and no other is more protective of the woman's fundamental right. Lastly, no other approach properly accommodates the woman's constitutional right with the State's legitimate interests. ”

“ For a patient with a life-threatening pregnancy, the ‘information’ in its very rendition may be cruel as well as destructive of the physician-patient relationship. As any experienced social worker or other counselor knows, theoretical financial responsibility often does not equate with fulfillment.... Under the guise of informed consent, the Act requires the dissemination of information that is not relevant to such consent, and, thus, it advances no legitimate state interest. ”

“ The Commonwealth attempts to justify its required reports on the ground that the public has a right to know how its tax dollars are spent. A regulation designed to inform the public about public expenditures does not further the Commonwealth's interest in protecting maternal health. Accordingly, such a regulation cannot justify a legally significant burden on a woman's right to obtain an abortion. ”

“ As a practical matter, because viability follows ‘quickening’-the point at which a woman feels movement in her womb-and because viability occurs no earlier than 23 weeks gestational age, it establishes an easily applicable standard for regulating abortion while providing a pregnant woman ample time to exercise her fundamental right with her responsible physician to terminate her pregnancy. ”

“ And in applying its test, the Court remains sensitive to the unique role of women in the decisionmaking process. Whatever may have been the practice when the Fourteenth Amendment was adopted, the Court observes, “ [w] omen do not lose their constitutionally protected liberty when they marry. The Constitution protects all individuals, male or female, married or unmarried, from the abuse of governmental power, even where that power is employed for the supposed benefit of a member of the individual's family.” ”

“ In short, restrictive abortion laws force women to endure physical invasions far more substantial than those this Court has held to violate the constitutional principle of bodily integrity in other contexts. ”

“ But, we are reassured, there is always the protection of the democratic process. While there is much to be praised about our democracy, our country since its founding has recognized that there are certain fundamental liberties that are not to be left to the whims of an election. ”

“ A State may not place any restriction on a young woman's right to an abortion, however irrational, simply because it has provided a judicial bypass.↑ Obviously, I do not share THE CHIEF JUSTICE's views of homosexuality as sexual deviance. ”

“ This assumption-that women can simply be forced to accept the “natural” status and incidents of motherhood-appears to rest upon a conception of women's role that has triggered the protection of the Equal Protection Clause. ”

“ The Constitution makes no mention, for example, of the First Amendment's ‘actual malice’ standard for proving certain libels, see New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) .... Similarly, the Constitution makes no mention of the rational-basis test, or the specific verbal formulations of intermediate and strict scrutiny by which this Court evaluates claims under the Equal Protection Clause. The reason is simple. Like the Roe framework, these [p931] tests or standards are not, and do not purport to be, rights protected by the Constitution. ”

“ Moreover, the statute in Hodgson did not require any delay once the minor obtained the affirmative consent of either a parent or the court.↑ Because this information is so widely known, I am confident that a developed record can be made to show that the 24-hour delay, “in a large fraction of the cases in which [the restriction] is relevant, ... will operate as a substantial obstacle to a woman's choice to undergo an abortion.” ”

“ Leeke, 488 U.S. 272 [109 S.Ct. 594, 102 L.Ed.2d 624] (1989) . “That numerous constitutional doctrines result in narrow differentiations between similar circumstances does [p932] not mean that this Court has abandoned adjudication in favor of regulation.” ”