CHIEF JUSTICE REHNQUIST on Roe v. Wade

“In our view, the Court of Appeals misconceived the meaning of the Akron dictum, which was only that a State could not "justify" an abortion regulation otherwise invalid under Roe v. Wade on the ground that it embodied the State's view about when life begins. Certainly the preamble does not, by its terms, regulate abortion or any other aspect of appellees' medical practice. The Court has emphasized that Roe v. Wade "implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion." Maher v. Roe, 432 U.S. at 432 U. S. 474. The preamble can be read simply to express that sort of value judgment.”

“Having held that the State's refusal to fund abortions does not violate Roe v. Wade, it strains logic to reach a contrary result for the use of public facilities and employees. If the State may "make a value judgment favoring childbirth over abortion and . . . implement that judgment by the allocation of public funds," Maher, supra, at 432 U. S. 474, surely it may do so through the allocation of other public resources, such as hospitals and medical staff. The Court of Appeals sought to distinguish our cases on the additional ground that "[t]he evidence here showed that all of the public facility's costs in providing abortion services are recouped when the patient pays." 851 F.2d at 1083. Absent any expenditure of public funds, the court thought that Missouri was "expressing" more than "its preference for childbirth over abortions," but rather was creating an "obstacle to exercise of the right to choose an abortion [that could not] stand absent a compelling state interest." Ibid. We disagree. "Constitutional concerns are greatest," we said in Maher, supra, at 432 U. S. 476, "when the State attempts to impose its will by the force of law; the State's power to encourage actions deemed to be in the public interest is necessarily far broader." Nothing in the Constitution requires States to enter or remain in the business of performing abortions. Nor, as appellees suggest, do private physicians and their patients have some kind of constitutional right of access to public facilities for the performance of abortions. Brief for Appellees 46-47. Indeed, if the State does recoup all of its costs in performing abortions, and no state subsidy, direct or indirect, is available, it is difficult to see how any procreational choice is burdened by the State's ban on the use of its facilities or employees for performing abortions. [Footnote 8]”

“In Roe v. Wade, the Court recognized that the State has "important and legitimate" interests in protecting maternal health and in the potentiality of human life. 410 U.S. at 410 U. S. 162. During the second trimester, the State "may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health." Id. at 410 U. S. 164. After viability, when the State's interest in potential human life was held to become compelling, the State "may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." Id. at 165.”

“We think that the doubt cast upon the Missouri statute by these cases is not so much a flaw in the statute as it is a reflection of the fact that the rigid trimester analysis of the course of a pregnancy enunciated in Roe has resulted in subsequent cases like Colautti and Akron making constitutional law in this area a virtual Procrustean bed. Statutes specifying elements of informed consent to be provided abortion patients, for example, were invalidated if they were thought to "structur[e] . . . the dialogue between the woman and her physician." Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747, 476 U. S. 763 (1986). As the dissenters in Thornburgh pointed out, such a statute would have been sustained under any traditional standard of judicial review, id. at 476 U. S. 802 (WHITE, J., dissenting), or for any other surgical procedure except abortion. Id. at 476 U. S. 783 (Burger, C.J., dissenting).”

“Stare decisis is a cornerstone of our legal system, but it has less power in constitutional cases, where, save for constitutional amendments, this Court is the only body able to make needed changes. See United States v. Scott, 437 U. S. 82, 437 U. S. 101 (1978). We have not refrained from reconsideration of a prior construction of the Constitution that has proved "unsound in principle and unworkable in practice." Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 469 U. S. 546 (1985); see Solorio v. United States, 483 U. S. 435, 483 U. S. 448-450 (1987); Erie R. Co. v. Tompkins, 304 U. S. 64, 304 U. S. 74-78 (1938). We think the Roe trimester framework falls into that category. In the first place, the rigid Roe framework is hardly consistent with the notion of a Constitution cast in general terms, as ours is, and usually speaking in general principles, as ours does. The key elements of the Roe framework -- trimesters and viability -- are not found in the text of the Constitution, or in any place else one would expect to find a constitutional principle. Since the bounds of the inquiry are essentially indeterminate, the result has been a web of legal rules that have become increasingly intricate, resembling a code of regulations rather than a body of constitutional doctrine. [Footnote 15] AS JUSTICE WHITE has put it, the trimester framework has left this Court to serve as the country's "ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States." Planned Parenthood of Central Mo. v. Danforth, 428 U.S. at 428 U. S. 99 (opinion concurring in part and dissenting in part). Cf. Garcia, supra, at 469 U. S. 547. In the second place, we do not see why the State's interest in protecting potential human life should come into existence only at the point of viability, and that there should therefore be a rigid line allowing state regulation after viability but prohibiting it before viability. The dissenters in Thornburgh, writing in the context of the Roe trimester analysis, would have recognized this fact by positing against the "fundamental right" recognized in Roe the State's "compelling interest" in protecting potential human life throughout pregnancy. "[T]he State's interest, if compelling after viability, is equally compelling before viability." Thornburgh, 476 U.S. at 476 U. S. 795 (WHITE, J., dissenting); see id. at 476 U. S. 828 (O'CONNOR, J., dissenting) ("State has compelling interests in ensuring maternal health and in protecting potential human life, and these interests exist throughout pregnancy'") (citation omitted).”

“JUSTICE BLACKMUN takes us to task for our failure to join in a "great issues" debate as to whether the Constitution includes an "unenumerated" general right to privacy as recognized in cases such as Griswold v. Connecticut, 381 U. S. 479 (1965), and Roe. But Griswold v. Connecticut, unlike Roe, did not purport to adopt a whole framework, complete with detailed rules and distinctions, to govern the cases in which the asserted liberty interest would apply. As such, it was far different from the opinion, if not the holding, of Roe v. Wade, which sought to establish a constitutional framework for judging state regulation of abortion during the entire term of pregnancy. That framework sought to deal with areas of medical practice traditionally subject to state regulation, and it sought to balance once and for all by reference only to the calendar the claims of the State to protect the fetus as a form of human life against the claims of a woman to decide for herself whether or not to abort a fetus she was carrying. The experience of the Court in applying Roe v. Wade in later cases, see supra at 492 U. S. 518, n. 15, suggests to us that there is wisdom in not unnecessarily attempting to elaborate the abstract differences between a "fundamental right" to abortion, as the Court described it in Akron, 462 U.S. at 462 U. S. 420, n. 1, a "limited fundamental constitutional right," which JUSTICE BLACKMUN today treats Roe as having established, post at 492 U. S. 555, or a liberty interest protected by the Due Process Clause, which we believe it to be. The Missouri testing requirement here is reasonably designed to ensure that abortions are not performed where the fetus is viable -- an end which all concede is legitimate -- and that is sufficient to sustain its constitutionality.”