Sandra Day O'Connor

“ I therefore conclude that the District Judge correctly ruled that appellees are unlikely to succeed in establishing an undue burden on the abortion decision stemming from the possibility of identification.
I fully agree with Justice White that the Court has misconstrued the intended meaning of § 3210 (b) 's requirement that physicians employ the abortion method that is most likely to save the fetus unless, in the physician's good-faith judgment, that method "would present a significantly greater risk to the life or health of the pregnant woman." ”

“ The holding of the Court today thus comes at the expense of the basic principle underlying the framework set out in Camenisch for ruling on a motion for a preliminary injunction: that fairness to the parties and reliable adjudication of disputes require final, binding rulings on the merits of a controversy to be made only after each side has had an opportunity to establish its version of the disputed facts or to establish that the facts are not in dispute. ”

“ An undue burden will generally be found "in situations involving absolute obstacles or severe limitations on the abortion decision," not wherever a state regulation "may 'inhibit' abortions to some degree." ”

“ For me, then, the question is not one of "success" but of the "likelihood of success." In addition, because Pennsylvania has not asked the Court to reconsider or overrule Roe v. Wade, 410 U.S. 113 (1973) , I do not address that question.
I do, however, remain of the views expressed in my dissent in Akron, 462 U.S., at 459-466. The State has compelling interests in ensuring maternal health and in protecting potential human life, and these interests exist "throughout pregnancy." ”

“ By holding that each of the challenged provisions is facially unconstitutional as a matter of law, and that no conceivable facts appellants might offer could alter this result, the Court appears to adopt as its new test a per se rule under which any regulation touching on abortion must be invalidated if it poses "an unacceptable danger of deterring the exercise of that right." ”

“ I would apply that reasoning here even if I were not persuaded that as to several of the challenged provisions additional factual development — for example, facts concerning the costs associated with the reporting and informed consent provisions, and the extent of the problems Pennsylvania was seeking to correct — could affect the decision on the merits. Appellants should not have to prove that they are entitled to an opportunity to be heard. ”

“ Indeed, the parties expressly provided that the stipulation should be "without prejudice to any party's right to controvert any facts or to prove any additional facts at any later proceeding in this action." ”

“ I have nothing to add to Justice White's demonstration that this provision is constitutional under Ashcroft because the Act effectively provides for an exception making this requirement inapplicable in emergency situations. ”