Harry Blackmun

“ In my view, a State may not expand indefinitely the scope of its abortion regulations by creating interests in fetal life that are limited solely by reference to the decisional law of this Court. Such a statutory scheme, whose scope is dependent on the uncertain and disputed limits of our holdings, will have the unconstitutional effect of chilling the exercise of a woman's right to terminate a pregnancy and of burdening the freedom of health professionals to provide abortion services. ”

“ The plurality does so either oblivious or insensitive to the fact that millions of women, and their families, have ordered their lives around the right to reproductive choice, and that this right has become vital to the full participation of women in the economic and political walks of American life. ”

“ And if distinctions may be drawn between a fetus and a human being in terms of the state interest in their protection — even though the fetus represents one of "those who will be citizens" — it seems to me quite odd to argue that distinctions may not also be drawn between the state interest in protecting the freshly fertilized egg and the state interest in protecting the 9-month-gestated, fully sentient fetus on the eve of birth. ”

“ At the same time, the viability standard takes account of the undeniable fact that, as the fetus evolves into its postnatal form, and as it loses its dependence on the uterine environment, the State's interest in the fetus' potential human life, and in fostering a regard for human life in general, becomes compelling. ”

“ Although today, no less than yesterday, the Constitution and the decisions of this Court prohibit a State from enacting laws that inhibit women from the meaningful exercise of that right, a plurality of this Court implicitly invites every state legislature to enact more and more restrictive abortion regulations in order to provoke more and more test cases, in the hope that, sometime down the line, the Court will return the law of procreative freedom to the severe limitations that generally prevailed in this country before January 22, 1973. ”

“ Abruptly setting aside the construction of § 188.029 adopted by both the District Court and Court of Appeals as "plain error," the plurality reads the viability testing provision as requiring only that, before a physician may perform an abortion on a woman whom he believes to be carrying a fetus of 20 or more weeks gestational age, the doctor must determine whether the fetus is viable and, as part of that exercise, must, to the extent feasible and consistent with sound medical practice, conduct tests necessary to make findings of gestational age, weight, and lung maturity. ”

“ The plurality opinion is far more remarkable for the arguments that it does not advance than for those that it does. The plurality does not even mention, much less join, the true jurisprudential debate underlying this case: whether the Constitution includes an "unenumerated" general right to [p547] privacy as recognized in many of our decisions, most notably Griswold v. Connecticut, 381 U.S. 479 (1965) , and Roe, and, more specifically, whether, and to what extent, such a right to privacy extends to matters of childbearing and family life, including abortion. ”

“ The Court in Roe adopted the framework of which the plurality complains as a mechanism necessary to give effect both to the constitutional rights of the pregnant woman and to the State's significant interests in maternal health and potential life. Concededly, Griswold does not adopt a framework for determining the permissible scope of state regulation of contraception. The reason is simple: in Griswold (and Eisenstadt) , the Court held that the challenged statute, regulating the use of medically safe contraception, did not properly serve any significant state interest. ”

“ By mandating tests to determine fetal weight and lung maturity for every fetus thought to be more than 20 weeks gestational age, the statute requires physicians to undertake procedures, such as amniocentesis, that, in the situation presented, have no medical justification, impose significant additional health risks on both the pregnant woman and the fetus, and bear no rational relation to the State's interest in protecting fetal life. ”

“ With the certain knowledge that a substantial percentage of private health care providers will fall under the public facility ban, see Brief for National Association of Public Hospitals as Amicus Curiae 10-11, Missouri does not "leav [e] a pregnant woman with the same choices as if the State had chosen not to operate any public hospitals at all," ante at 509; rather, the public facility ban leaves the pregnant woman with far fewer choices, or, for those too sick or too poor to travel, perhaps no choice at all. ”

“ The doctrine of stare decisis
permits society to presume that bedrock principles are founded in the law, rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact. ”

“ II For today, at least, the law of abortion stands undisturbed. For today, the women of this Nation still retain the liberty to control their destinies. But the signs are evident and very ominous, and a chill wind blows. ”

“ To the extent that the plurality may be reading the provision to require tests other than those that a doctor, exercising reasonable professional judgment, would deem necessary to a finding of viability, the provision bears no rational relation to a legitimate governmental interest, and cannot stand. ”

“ D Thus, "not with a bang, but a whimper," the plurality discards a landmark case of the last generation and casts into darkness the hopes and visions of every woman in this country who had come to believe that the Constitution guaranteed her the right to exercise some control over her unique ability to bear children. ”

“ 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 [p554] providing a pregnant woman ample time to exercise her fundamental right with her responsible physician to terminate her pregnancy. ”

“ Although I disagree with the Court's consideration [p540] of §§ 1.205, 188.210, and 188.215, and am especially disturbed by its misapplication of our past decisions in upholding Missouri's ban on the performance of abortions at [p541] "public facilities," its discussion of these provisions is merely prologue to the plurality's consideration of the statute's viability testing requirement, § 188.029 — the only section of the Missouri statute that the plurality construes as implicating Roe itself. ”

“ Every year, many women, especially poor and minority women, would die or suffer debilitating physical trauma, all in the name of enforced morality or religious dictates or lack of compassion, as it may be. ”

“ Whatever one may think of Maher, Poelker, and Harris, however, they most certainly do not control this case, where the State not only has withdrawn from the business of abortion, but has taken affirmative steps to assure that abortions are not performed by private physicians in private institutions. ”

“ Virginia, 462 U.S. 506 (1983) , [p550] and Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983) . Are these distinctions 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? ”