Thornburgh v. American College of Obstetricians and Gynecologists
476 US 747, 1986 U.S. LEXIS 54, 90 L. Ed. 2d 779 (1986)
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Rule of Law:
A state may not enact abortion regulations, under the guise of protecting maternal health or potential life, that are designed to intimidate a woman into continuing her pregnancy. Regulations that require physicians to provide specific, state-mandated information intended to discourage abortion, impose burdensome reporting requirements that risk patient and physician identification, or mandate medical procedures that increase risks to the woman's health are an unconstitutional infringement on the fundamental right to an abortion.
Facts:
- In 1982, the Commonwealth of Pennsylvania enacted the Abortion Control Act.
- The Act required that a woman seeking an abortion give 'informed consent' at least 24 hours before the procedure.
- To obtain this consent, physicians were required to inform the woman of the probable gestational age of the fetus, potential physical and psychological effects, and the medical risks of both the abortion and of carrying the child to term.
- The Act also mandated that the woman be told of the availability of state-printed materials describing fetal characteristics at two-week intervals, listing agencies offering alternatives to abortion, and stating that the father is liable for child support.
- The Act required physicians to file detailed reports for each abortion, including the woman's age, race, marital status, and political subdivision of residence.
- These reports, while not public records, were to be made available for public inspection and copying in a form that would not lead to the disclosure of the patient's identity.
- For post-viability abortions, the Act required physicians to use the abortion technique providing the best opportunity for the fetus to be born alive, unless it would present a 'significantly greater medical risk' to the woman.
- The Act also required the presence of a second physician during post-viability abortions to care for the child if born alive, without containing an explicit exception for medical emergencies.
Procedural Posture:
- The American College of Obstetricians and Gynecologists, along with other physicians and counselors, filed a lawsuit in the U.S. District Court for the Eastern District of Pennsylvania against Pennsylvania state officials.
- The plaintiffs sought a declaratory judgment that the 1982 Abortion Control Act was unconstitutional and requested a preliminary injunction to prevent its enforcement.
- The District Court denied the motion for a preliminary injunction for most of the Act's provisions, enjoining only the 24-hour waiting period.
- The plaintiffs (as appellees) appealed the denial of the injunction to the U.S. Court of Appeals for the Third Circuit, and the state officials (as appellants) cross-appealed.
- The Third Circuit enjoined enforcement of the entire Act pending appeal and, after this Court's decisions in Akron and Ashcroft, held several provisions of the Pennsylvania Act unconstitutional, reversing the District Court in large part.
- The state officials appealed to the U.S. Supreme Court, which treated the jurisdictional statement as a petition for a writ of certiorari and granted it.
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Issue:
Do several provisions of Pennsylvania's 1982 Abortion Control Act—including those mandating specific 'informed consent' disclosures, printed informational materials, detailed public reporting, a required standard of care for post-viability abortions, and a second-physician requirement—unconstitutionally infringe upon a woman's fundamental right to an abortion?
Opinions:
Majority - Justice Blackmun
Yes, the challenged provisions of Pennsylvania's Abortion Control Act unconstitutionally infringe upon a woman's fundamental right to an abortion. The informed consent and printed information requirements (§§ 3205, 3208) are not designed to inform the woman's consent but to persuade her to withhold it, constituting an attempt to wedge the state's message discouraging abortion into the private physician-patient dialogue. The reporting requirements (§ 3214) go beyond legitimate health interests and pose an unacceptable danger of public identification and harassment, chilling the exercise of the abortion right. The post-viability standard of care (§ 3210(b)) unconstitutionally requires a 'trade-off' between maternal health and fetal survival by allowing a safer procedure for the woman only if the alternative presents a 'significantly greater' risk. Finally, the second-physician requirement (§ 3210(c)) is facially unconstitutional because it lacks an express medical emergency exception, chilling the performance of necessary late-term abortions.
Concurring - Justice Stevens
Yes, the provisions are unconstitutional. The liberty interest at stake is the fundamental right of an individual to make decisions about childbearing without unwarranted government intrusion. This interest is not diminished after conception. The state's interest in potential life is not static but increases progressively as the fetus develops. The holding in Roe v. Wade correctly places the primary responsibility for reproductive decisions in the private sector, and the doctrine of stare decisis requires adherence to its fundamental premises.
Dissenting - Chief Justice Burger
No, the provisions do not unconstitutionally infringe upon the right to an abortion. The Court's opinion undermines the principle from Roe v. Wade that the right is not absolute. The state has a legitimate interest in ensuring a woman is provided with accurate medical information about risks and alternatives before making a decision as serious as abortion. To say the Constitution forbids the communication of such critical information is astonishing. The second-physician requirement is also a valid exercise of the state's compelling interest, recognized in Roe, in protecting potential life after viability.
Dissenting - Justice White
No, the provisions are constitutional. Roe v. Wade was wrongly decided and should be overruled, as the right to abortion is not 'fundamental' and the issue should be left to legislatures. Even accepting Roe, the Pennsylvania statute is permissible. The informed-consent provisions legitimately further the state's policy of preferring childbirth by ensuring a woman's choice is fully informed. The reporting requirements serve valid public health purposes and the majority's fear of identification is unsubstantiated. The post-viability standard of care and second-physician requirement (which includes a medical necessity defense) are constitutional means of protecting the state's compelling interest in viable fetal life.
Dissenting - Justice O'Connor
No, the provisions should be upheld at this stage. The Court improperly reached a final decision on the merits when the case was only at the preliminary injunction stage with an incomplete factual record. Substantively, under the 'undue burden' standard, a law is unconstitutional only if it imposes an 'absolute obstacle or severe limitation' on the abortion decision. None of the challenged provisions meets this high threshold; they are rationally related to legitimate state interests in maternal health and potential life. The Court appears to have adopted a new per se rule that invalidates any regulation that might deter an abortion, which is an illegitimate and extravagant departure from precedent.
Analysis:
This decision represents a high-water mark for the protection of abortion rights post-Roe, strongly reaffirming both Roe v. Wade and the stringent review of regulations established in Akron. The Court's analysis demonstrated a deep skepticism of state motives, striking down several types of regulations it viewed as pretextual attempts to deter abortion rather than to protect health. By invalidating biased counseling scripts, burdensome reporting, and medically questionable standards of care, the case provided clear guidance to lower courts and temporarily halted state efforts to incrementally restrict abortion access. However, the decision's strong pro-choice stance and the sharp dissents, particularly Justice O'Connor's 'undue burden' framework, set the stage for the Court's later retrenchment in Planned Parenthood v. Casey.
