JUSTICE BLACKMUN on Roe v. Wade

“Today, Roe v. Wade, 410 U. S. 113 (1973), and the fundamental constitutional right of women to decide whether to terminate a pregnancy, survive, but are not secure. Although the Court extricates itself from this case without making a single, even incremental, change in the law of abortion, the plurality and JUSTICE SCALIA would overrule Roe (the first silently, the other explicitly) and would return to the States virtually unfettered authority to control the quintessentially intimate, personal, and life-directing decision whether to carry a fetus to term. 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. Never in my memory has a plurality announced a judgment of this Court that so foments disregard for the law and for our standing decisions. Nor in my memory has a plurality gone about its business in such a deceptive fashion. At every level of its review, from its effort to read the real meaning out of the Missouri statute to its intended evisceration of precedents and its deafening silence about the constitutional protections that it would jettison, the plurality obscures the portent of its analysis. With feigned restraint, the plurality announces that its analysis leaves Roe "undisturbed," albeit "modif[ied] and narrow[ed]." Ante at 492 U. S. 521. But this disclaimer is totally meaningless. The plurality opinion is filled with winks, and nods, and knowing glances to those who would do away with Roe explicitly, but turns a stone face to anyone in search of what the plurality conceives as the scope of a woman's right under the Due Process Clause to terminate a pregnancy free from the coercive and brooding influence of the State. The simple truth is that Roe would not survive the plurality's analysis, and that the plurality provides no substitute for Roe's protective umbrella. I fear for the future. I fear for the liberty and equality of the millions of women who have lived and come of age in the 16 years since Roe was decided. I fear for the integrity of, and public esteem for, this Court.”

“Today, Roe v. Wade, 410 U. S. 113 (1973), and the fundamental constitutional right of women to decide whether to terminate a pregnancy, survive, but are not secure. Although the Court extricates itself from this case without making a single, even incremental, change in the law of abortion, the plurality and JUSTICE SCALIA would overrule Roe (the first silently, the other explicitly) and would return to the States virtually unfettered authority to control the quintessentially intimate, personal, and life-directing decision whether to carry a fetus to term. 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. Never in my memory has a plurality announced a judgment of this Court that so foments disregard for the law and for our standing decisions. Nor in my memory has a plurality gone about its business in such a deceptive fashion. At every level of its review, from its effort to read the real meaning out of the Missouri statute to its intended evisceration of precedents and its deafening silence about the constitutional protections that it would jettison, the plurality obscures the portent of its analysis. With feigned restraint, the plurality announces that its analysis leaves Roe "undisturbed," albeit "modif[ied] and narrow[ed]." Ante at 492 U. S. 521. But this disclaimer is totally meaningless. The plurality opinion is filled with winks, and nods, and knowing glances to those who would do away with Roe explicitly, but turns a stone face to anyone in search of what the plurality conceives as the scope of a woman's right under the Due Process Clause to terminate a pregnancy free from the coercive and brooding influence of the State. The simple truth is that Roe would not survive the plurality's analysis, and that the plurality provides no substitute for Roe's protective umbrella. I fear for the future. I fear for the liberty and equality of the millions of women who have lived and come of age in the 16 years since Roe was decided. I fear for the integrity of, and public esteem for, this Court.”

“In the plurality's view, the viability testing provision imposes a burden on second-trimester abortions as a way of furthering the State's interest in protecting the potential life of the fetus. Since, under the Roe framework, the State may not fully regulate abortion in the interest of potential life (as opposed to maternal health) until the third trimester, the plurality finds it necessary, in order to save the Missouri testing provision, to throw out Roe's trimester framework. Ante at 492 U. S. 518-520. In flat contradiction to Roe, 410 U.S. at 410 U. S. 163, the plurality concludes that the State's interest in potential life is compelling before viability, and upholds the testing provision because it "permissibly furthers" that state interest. Ante at 492 U. S. 519.”

“At the outset, I note that, in its haste to limit abortion rights, the plurality compounds the errors of its analysis by needlessly reaching out to address constitutional questions that are not actually presented. The conflict between § 188.029 and Roe's trimester framework, which purportedly drives the plurality to reconsider our past decisions, is a contrived conflict: the product of an aggressive misreading of the viability testing requirement and a needlessly wooden application of the Roe framework.”

“No one contests that, under the Roe framework, the State, in order to promote its interest in potential human life, may regulate and even proscribe nontherapeutic abortions once the fetus becomes viable. Roe, 410 U.S. at 410 U. S. 164-165. If, as the plurality appears to hold, the testing provision simply requires a physician to use appropriate and medically sound tests to determine whether the fetus is actually viable when the estimated gestational age is greater than 20 weeks (and therefore within what the District Court found to be the margin of error for viability, ante at 492 U. S. 515-516), then I see little or no conflict with Roe. [Footnote 2/5] Nothing in Roe, or any of its progeny, holds that a State may not effectuate its compelling interest in the potential life of a viable fetus by seeking to ensure that no viable fetus is mistakenly aborted because of the inherent lack of precision in estimates of gestational age. A requirement that a physician make a finding of viability, one way or the other, for every fetus that falls within the range of possible viability does no more than preserve the State's recognized authority. Although, as the plurality correctly points out, such a testing requirement would have the effect of imposing additional costs on second-trimester abortions where the tests indicated that the fetus was not viable, these costs would be merely incidental to, and a necessary accommodation of, the State's unquestioned right to prohibit nontherapeutic abortions after the point of viability. In short, the testing provision, as construed by the plurality, is consistent with the Roe framework, and could be upheld effortlessly under current doctrine. [Footnote 2/6]”

“Having set up the conflict between § 188.029 and the Roe trimester framework, the plurality summarily discards Roe's analytic core as "unsound in principle and unworkable in practice.'" Ante at 492 U. S. 518, quoting Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 469 U. S. 546 (1985). This is so, the plurality claims, because the key elements of the framework do not appear in the text of the Constitution, because the framework more closely resembles a regulatory code than a body of constitutional doctrine, and because, under the framework, the State's interest in potential human life is considered compelling only after viability, when, in fact, that interest is equally compelling throughout pregnancy. Ante at 492 U. S. 519-520. The plurality does not bother to explain these alleged flaws in Roe. Bald assertion masquerades as reasoning. The object, quite clearly, is not to persuade, but to prevail.”

“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 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. See, e.g., Eisenstadt v. Baird, 405 U. S. 438 (1972) (contraception); Loving v. Virginia, 388 U. S. 1 (1967) (marriage); Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942) (procreation); Pierce v. Society of Sisters, 268 U. S. 510 (1925) (childrearing). [Footnote 2/7] These are questions of unsurpassed significance in this Court's interpretation of the Constitution, and mark the battleground upon which this case was fought by the parties, by the Solicitor General as amicus on behalf of petitioners, and by an unprecedented number of amici. On these grounds, abandoned by the plurality, the Court should decide this case. But rather than arguing that the text of the Constitution makes no mention of the right to privacy, the plurality complains that the critical elements of the Roe framework -- trimesters and viability -- do not appear in the Constitution, and are, therefore, somehow inconsistent with a Constitution cast in general terms. Ante at 492 U. S. 518-519. Were this a true concern, we would have to abandon most of our constitutional jurisprudence. As the plurality well knows, or should know, the "critical elements" of countless constitutional doctrines nowhere appear in the Constitution's text. 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 (1964), or of the standard for determining when speech is obscene. See Miller v. California, 413 U. S. 15 (1973). 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 tests or standards are not, and do not purport to be, rights protected by the Constitution. Rather, they are judge-made methods for evaluating and measuring the strength and scope of constitutional rights or for balancing the constitutional rights of individuals against the competing interests of government.”

“With respect to the Roe framework, the general constitutional principle, indeed the fundamental constitutional right, for which it was developed is the right to privacy, see, e.g., Griswold v. Connecticut, 381 U. S. 479 (1965), a species of "liberty" protected by the Due Process Clause, which under our past decisions safeguards the right of women to exercise some control over their own role in procreation. As we recently reaffirmed in Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747 (1986), few decisions are "more basic to individual dignity and autonomy" or more appropriate to that "certain private sphere of individual liberty" that the Constitution reserves from the intrusive reach of government than the right to make the uniquely personal, intimate, and self-defining decision whether to end a pregnancy. Id. at 476 U. S. 772. It is this general principle, the "moral fact that a person belongs to himself and not others nor to society as a whole,'" id. at 476 U. S. 777, n. 5 (STEVENS, J., concurring), quoting Fried, Correspondence, 6 Phil. & Pub.Aff. 288-289 (1977), that is found in the Constitution. See Roe, 410 U.S. at 410 U. S. 152-153. The trimester framework simply defines and limits that right to privacy in the abortion context to accommodate, not destroy, a State's legitimate interest in protecting the health of pregnant women and in preserving potential human life. Id. at 410 U. S. 154-162. Fashioning such accommodations between individual rights and the legitimate interests of government, establishing benchmarks and standards with which to evaluate the competing claims of individuals and government, lies at the very heart of constitutional adjudication. To the extent that the trimester framework is useful in this enterprise, it is not only consistent with constitutional interpretation, but necessary to the wise and just exercise of this Court's paramount authority to define the scope of constitutional rights.”

“For my own part, I remain convinced, as six other Members of this Court 16 years ago were convinced, that the Roe framework, and the viability standard in particular, fairly, sensibly, and effectively functions to safeguard the constitutional liberties of pregnant women while recognizing and accommodating the State's interest in potential human life. The viability line reflects the biological facts and truths of fetal development; it marks that threshold moment prior to which a fetus cannot survive separate from the woman and cannot reasonably and objectively be regarded as a subject of rights or interests distinct from, or paramount to, those of the pregnant woman. 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. 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. [Footnote 2/9] Although I have stated previously for a majority of this Court that "[c]onstitutional rights do not always have easily ascertainable boundaries," to seek and establish those boundaries remains the special responsibility of this Court. Thornburgh, 476 U.S. at 476 U. S. 771. In Roe, we discharged that responsibility as logic and science compelled. The plurality today advances not one reasonable argument as to why our judgment in that case was wrong and should be abandoned.”

“The "permissibly furthers" standard completely disregards the irreducible minimum of Roe: the Court's recognition that a woman has a limited fundamental constitutional right to decide whether to terminate a pregnancy. That right receives no meaningful recognition in the plurality's written opinion. Since, in the plurality's view, the State's interest in potential life is compelling as of the moment of conception, and is therefore served only if abortion is abolished, every hindrance to a woman's ability to obtain an abortion must be "permissible." Indeed, the more severe the hindrance, the more effectively (and permissibly) the State's interest would be furthered. A tax on abortions or a criminal prohibition would both satisfy the plurality's standard. So, for that matter, would a requirement that a pregnant woman memorize and recite today's plurality opinion before seeking an abortion. The plurality pretends that Roe survives, explaining that the facts of this case differ from those in Roe: here, Missouri has chosen to assert its interest in potential life only at the point of viability, whereas, in Roe, Texas had asserted that interest from the point of conception, criminalizing all abortions except where the life of the mother was at stake. Ante at 492 U. S. 521. This, of course, is a distinction without a difference. The plurality repudiates every principle for which Roe stands; in good conscience, it cannot possibly believe that Roe lies "undisturbed" merely because this case does not call upon the Court to reconsider the Texas statute or one like it. If the Constitution permits a State to enact any statute that reasonably furthers its interest in potential life, and if that interest arises as of conception, why would the Texas statute fail to pass muster? One suspects that the plurality agrees It is impossible to read the plurality opinion, and especially its final paragraph, without recognizing its implicit invitation to every State to enact more and more restrictive abortion laws, and to assert their interest in potential life as of the moment of conception. All these laws will satisfy the plurality's nonscrutiny until, sometime, a new regime of old dissenters and new appointees will declare what the plurality intends: that Roe is no longer good law.”

“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. 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. The plurality would clear the way once again for government to force upon women the physical labor and specific and direct medical and psychological harms that may accompany carrying a fetus to term. The plurality would clear the way again for the State to conscript a woman's body and to force upon her a "distressful life and future." Roe, 410 U.S. at 410 U. S. 153. The result, as we know from experience, see Cates & Rochat, Illegal Abortions in the United States: 1972-1974, 8 Family Planning Perspectives 86, 92 (1976), would be that, every year, hundreds of thousands of women, in desperation, would defy the law and place their health and safety in the unclean and unsympathetic hands of back-alley abortionists, or they would attempt to perform abortions upon themselves, with disastrous results. 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. Of the aspirations and settled understandings of American women, of the inevitable and brutal consequences of what it is doing, the tough-approach plurality utters not a word. This silence is callous. It is also profoundly destructive of this Court as an institution. To overturn a constitutional decision is a rare and grave undertaking. To overturn a constitutional decision that secured a fundamental personal liberty to millions of persons would be unprecedented in our 200 years of constitutional history. Although the doctrine of stare decisis applies with somewhat diminished force in constitutional cases generally, ante at 492 U. S. 518, even in ordinary constitutional cases, "any departure from . . . stare decisis demands special justification." Arizona v. Rumsey, 467 U. S. 203, 467 U. S. 212 (1984). See also Vasquez v. Hillery, 474 U. S. 254, 474 U. S. 266 (1986) ("[T]he careful observer will discern that any detours from the straight path of stare decisis in our past have occurred for articulable reasons, and only when the Court has felt obliged to bring its opinions into agreement with experience and with facts newly ascertained,'" quoting Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 285 U. S. 412 (1932) (Brandeis, J., dissenting)). This requirement of justification applies with unique force where, as here, the Court's abrogation of precedent would destroy people's firm belief, based on past decisions of this Court, that they possess an unabridgeable right to undertake certain conduct. [Footnote 2/12] As discussed at perhaps too great length above, the plurality makes no serious attempt to carry "the heavy burden of persuading . . . that changes in society or in the law dictate" the abandonment of Roe and its numerous progeny, Vasquez, 474 U.S. at 474 U. S. 266, much less the greater burden of explaining the abrogation of a fundamental personal freedom. Instead, the plurality pretends that it leaves Roe standing, and refuses even to discuss the real issue underlying this case: whether the Constitution includes an unenumerated right to privacy that encompasses a woman's right to decide whether to terminate a pregnancy. To the extent that the plurality does criticize the Roe framework, these criticisms are pure ipse dixit.”

“Even if the State may decline to subsidize or to participate in the exercise of a woman's right to terminate a pregnancy, and even if a State may pursue its own abortion policies in distributing public benefits, it may not affirmatively constrict the availability of abortions by defining as "public" that which in all meaningful respects is private. 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 492 U. S. 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. This aggressive and shameful infringement on the right of women to obtain abortions in consultation with their chosen physicians, unsupported by any state interest, much less a compelling one, violates the command of Roe.”

“The plurality, ignoring all of the aforementioned cases except Griswold, responds that this case does not require consideration of the "great issues" underlying this case because Griswold, "unlike Roe, did not purport to adopt a whole framework . . . to govern the cases in which the asserted liberty interest would apply." Ante at 492 U. S. 520. This distinction is highly ironic. 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. Accordingly, the Court had no occasion to fashion a framework to accommodate a State's interests in regulating contraception. Surely the plurality is not suggesting that it would find Roe unobjectionable if the Court had forgone the framework and, as in the contraception decisions, had left the State with little or no regulatory authority. The plurality's focus on the framework is merely an excuse for avoiding the real issues embedded in this case, and a mask for its hostility to the constitutional rights that Roe recognized.”

“Notably, neither the plurality nor JUSTICE O'CONNOR advances the now-familiar catch-phrase criticism of the Roe framework that, because the point of viability will recede with advances in medical technology, Roe "is clearly on a collision course with itself." See Akron, 462 U.S. at 462 U. S. 458 (dissenting opinion). This critique has no medical foundation. As the medical literature and the amicus briefs filed in this case conclusively demonstrate, "there is an anatomic threshold' for fetal viability of about 23-24 weeks of gestation." Brief for American Medical Association et al. as Amici Curiae 7. See also Brief for 167 Distinguished Scientists and Physicians, including 11 Nobel Laureates, as Amici Curiae 8-14. Prior to that time, the crucial organs are not sufficiently mature to provide the mutually sustaining functions that are prerequisite to extrauterine survival, or viability. Moreover, "no technology exists to bridge the development gap between the three-day embryo culture and the 24th week of gestation." Fetal Extrauterine Survivability, Report to the New York State Task Force on Life and the Law 3 (1988). Nor does the medical community believe that the development of any such technology is possible in the foreseeable future. Id. at 12. In other words, the threshold of fetal viability is, and will remain, no different from what it was at the time Roe was decided. Predictions to the contrary are pure science fiction. See Brief for A Group of American Law Professors as Amicus Curiae 23-25.”

“The plurality claims that its treatment of Roe, and a woman's right to decide whether to terminate a pregnancy, "hold[s] true the balance between that which the Constitution puts beyond the reach of the democratic process and that which it does not." Ante at 492 U. S. 521. This is unadulterated nonsense. The plurality's balance matches a lead weight (the State's allegedly compelling interest in fetal life as of the moment of conception) against a feather (a "liberty interest" of the pregnant woman that the plurality barely mentions, much less describes). The plurality's balance -- no balance at all -- places nothing, or virtually nothing, beyond the reach of the democratic process.”