No. 81-746
Argued: November 30, 1982Decided: June 15, 1983
Held:
- 1. Section 1870.03 is unconstitutional. Pp. 431-439.
-
- (a) While a State’s interest in health regulation becomes compelling at approximately the end of the first trimester, the State’s regulation may be upheld only if it is reasonably designed to further that interest. If during a substantial portion of the second trimester the State’s regulation
- departs from accepted medical practice, it may not be upheld simply because it may be reasonable for the remaining portion of the trimester. Rather, the State is obligated to make a reasonable effort to limit the effect of its regulations to the period in the trimester during which its health interest may be furthered. Pp. 433-434.
- (b) It cannot be said that the lines drawn in 1870.03 are reasonable. By preventing the performance of dilatation-and-evacuation abortions in an appropriate nonhospital setting, Akron has imposed a heavy and unnecessary burden on women’s access to a relatively inexpensive, otherwise accessible, and safe abortion procedure. Section 1870.03 has the effect of inhibiting the vast majority of abortions after the first trimester and therefore unreasonably infringes upon a woman’s constitutional right to obtain an abortion. Pp. 434-439.
- 2. Section 1870.05(B) is unconstitutional as making a blanket determination that all minors under the age of 15 are too immature to make an abortion decision or that an abortion never may be in the minor’s best interests without parental approval. Under circumstances where the Ohio statute governing juvenile proceedings does not mention minors’ abortions nor suggest that the Ohio Juvenile Court has authority to inquire into a minor’s maturity or emancipation, 1870.05(B), as applied in juvenile proceedings, is not reasonably susceptible of being construed to create an opportunity for case-by-case evaluations of the maturity of pregnant minors. Pp. 439-442.
- 3. Sections 1870.06(B) and 1870.06(C) are unconstitutional. Pp. 442-449.
- (a) The validity of an informed consent requirement rests on the State’s interest in protecting the pregnant woman’s health. But this does not mean that a State has unreviewable authority to decide what information a woman must be given before she chooses to have an abortion. A State may not adopt regulations designed to influence the woman’s informed choice between abortion or childbirth. Pp. 442-444.
- (b) Section 1870.06(B) attempts to extend the State’s interest in ensuring “informed consent” beyond permissible limits, and intrudes upon the discretion of the pregnant woman’s physician. While a State may require a physician to make certain that his patient understands the physical and emotional implications of having an abortion, 1870.06(B) goes far beyond merely describing the general subject matter relevant to informed consent. By insisting upon recitation of a lengthy and inflexible list of information, the section unreasonably has placed obstacles in the path of the physician. Pp. 444-445.
-
- (c) With respect to 1870.06(C)’s requirement that the “attending physician” must inform the woman of the specified information, it is unreasonable for a State to insist that only a physician is competent to
- provide the information and counseling relevant to informed consent. Pp. 446-449.
- 4. Section 1870.07 is unconstitutional. Akron has failed to demonstrate that any legitimate state interest is furthered by an arbitrary and inflexible waiting period. There is no evidence that the abortion procedure will be performed more safely. Nor does it appear that the State’s legitimate concern that the woman’s decision be informed is reasonably served by requiring a 24-hour delay as a matter of course. Pp. 449-451.
- 5. Section 1870.16 violates the Due Process Clause by failing to give a physician fair notice that his contemplated conduct is forbidden. Pp. 451-452.
651 F.2d 1198, affirmed in part and reversed in part.
[ Footnote * ] Together with No. 81-1172, Akron Center for Reproductive Health, Inc., et al. v. City of Akron et al., also on certiorari to the same court.
POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. O’CONNOR, J., filed a dissenting opinion, in which WHITE and REHNQUIST, JJ., joined, post, p. 452.
Alan G. Segedy argued the cause for petitioner in No. 81-746 and respondent in No. 81-1172. With him on the briefs was Robert D. Pritt. Mr. Segedy and Robert A. Destro filed a brief for Seguin et al., respondents under this Court’s Rule 19.6, in support of petitioner in No. 81-746 and respondent in No. 81-1172.
Solicitor General Lee argued the cause for the United States as amicus curiae. With him on the brief were Assistant Attorney General McGrath and Deputy Solicitor General Geller.
Stephan Landsman argued the cause for respondents in No. 81-746 and petitioners in No. 81-1172. With him on the briefs were Janet Benshoof, Suzanne M. Lynn, Nan D. Hunter, Lois J. Lipton, and Gordon Beggs.Fn
Fn [462 U.S. 416, 418] Briefs of amici curiae urging reversal were filed by Delores V. Horan for Feminists for Life; and by Lynn D. Wardle for the United Families Foundation et al.
Briefs of amici curiae urging affirmance were filed by Bruce J. Ennis, Jr., and Donald N. Bersoff for the American Psychological Association; [462 U.S. 416, 419] and by Sylvia A. Law, Nadine Taub, and Ellen J. Winner for the Committee for Abortion Rights and Against Sterilization Abuse et al.
Briefs of amici curiae were filed by M. Carolyn Cox and Lynn Bregman for the American College of Obstetricians and Gynecologists et al.; by David B. Hopkins for the American Public Health Association; by Dennis J. Horan, Victor G. Rosenblum, Patrick A. Trueman, and Thomas J. Marzen for Americans United for Life; for California Women Lawyers et al.; by Charles E. Rice for the Catholic League for Religious and Civil Rights; by Rhonda Copelon for Certain Religious Organizations; by Jack R. Bierig for the College of American Pathologists; by Ronald J. Suster for Lawyers for Life; by Alan Ernest for the Legal Defense Fund for Unborn Children; by Judith Levin for the National Abortion Federation; by Jack Greenberg, James M. Nabrit III, and Judith Reed for the NAACP Legal Defense and Educational Fund, Inc.; by Phyllis N. Segal, Judith I. Avner, and Jemera Rone for the National Organization for Women et al.; by Eve W. Paul and Dara Klassel for the Planned Parenthood Federation of America, Inc., et al.; by James Arthur Gleason for Womankind, Inc.; by Nancy Reardan for Women Lawyers of Sacramento et al; and by Susan Frelich Appleton and Paul Brest for Certain Law Professors. [462 U.S. 416, 419]
JUSTICE POWELL delivered the opinion of the Court.
In this litigation we must decide the constitutionality of several provisions of an ordinance enacted by the city of Akron, Ohio, to regulate the performance of abortions. Today we also review abortion regulations enacted by the State of Missouri, see Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, post, p. 476, and by the State of Virginia, see Simopoulos v. Virginia, post, p. 506.
These cases come to us a decade after we held in Roe v. Wade, 410 U.S. 113 (1973), that the right of privacy, grounded in the concept of personal liberty guaranteed by the Constitution, encompasses a woman’s right to decide whether to terminate her pregnancy. Legislative responses to the Court’s decision have required us on several occasions, and again today, to define the limits of a State’s authority to regulate the performance of abortions. And arguments continue to be made, in these cases as well, that we erred in interpreting the Constitution. Nonetheless, the doctrine of [462 U.S. 416, 420] stare decisis, while perhaps never entirely persuasive on a constitutional question, is a doctrine that demands respect in a society governed by the rule of law. 1 We respect it today, and reaffirm Roe v. Wade. [462 U.S. 416, 421]
I
In February 1978 the City Council of Akron enacted Ordinance No. 160-1978, entitled “Regulation of Abortions.” 2 [462 U.S. 416, 422] The ordinance sets forth 17 provisions that regulate the performance of abortions, see Akron Codified Ordinances, ch. 1870, 5 of which are at issue in this case:
(i) Section 1870.03 requires that all abortions performed after the first trimester of pregnancy be performed in a hospital. 3
(ii) Section 1870.05 sets forth requirements for notification of and consent by parents before abortions may be performed on unmarried minors. 4 [462 U.S. 416, 423]
(iii) Section 1870.06 requires that the attending physician make certain specified statements to the patient “to insure that the consent for an abortion is truly informed consent.” 5 [462 U.S. 416, 424]
(iv) Section 1870.07 requires a 24-hour waiting period between the time the woman signs a consent form and the time the abortion is performed. 6
(v) Section 1870.16 requires that fetal remains be “disposed of in a humane and sanitary manner.” 7 [462 U.S. 416, 425]
A violation of any section of the ordinance is punishable as a criminal misdemeanor. 1870.18. If any provision is invalidated, it is to be severed from the remainder of the ordinance. 8 The ordinance became effective on May 1, 1978.
On April 19, 1978, a lawsuit challenging virtually all of the ordinance’s provisions was filed in the District Court for the Northern District of Ohio. The plaintiffs, respondents and cross-petitioners in this Court, were three corporations that operate abortion clinics in Akron and a physician who has performed abortions at one of the clinics. The defendants, petitioners and cross-respondents here, were the city of Akron and three city officials (Akron). Two individuals (intervenors) were permitted to intervene as codefendants “in their individual capacity as parents of unmarried minor daughters of childbearing age.” 479 F. Supp. 1172, 1181 (1979). On April 27, 1978, the District Court preliminarily enjoined enforcement of the ordinance.
In August 1979, after hearing evidence, the District Court ruled on the merits. It found that plaintiffs lacked standing to challenge seven provisions of the ordinance, none of which is before this Court. The District Court invalidated four provisions, including 1870.05 (parental notice and consent), 1870.06(B) (requiring disclosure of facts concerning the woman’s pregnancy, fetal development, the complications of abortion, and agencies available to assist the woman), and 1870.16 (disposal of fetal remains). The court upheld the constitutionality of the remainder of the ordinance, including 1870.03 (hospitalization for abortions after the first trimester), 1870.06(C) (requiring disclosure of the particular risks of the woman’s pregnancy and the abortion technique to be employed), and 1870.07 (24-hour waiting period). [462 U.S. 416, 426]
All parties appealed some portion of the District Court’s judgment. The Court of Appeals for the Sixth Circuit affirmed in part and reversed in part. 651 F.2d 1198 (1981). It affirmed the District Court’s decision that 1870.03’s hospitalization requirement is constitutional. It also affirmed the ruling that 1870.05, 1870.06(B), and 1870.16 are unconstitutional. The Court of Appeals reversed the District Court’s decision on 1870.06(C) and 1870.07, finding these provisions to be unconstitutional.
Three separate petitions for certiorari were filed. In light of the importance of the issues presented, and in particular the conflicting decisions as to whether a State may require that all second-trimester abortions be performed in a hospital, 9 we granted both Akron’s and the plaintiffs’ petitions. 456 U.S. 988 (1982). We denied the intervenors’ petition, Seguin v. Akron Center for Reproductive Health, Inc., 456 U.S. 989 (1982), but they have participated in this Court as respondents under our Rule 19.6. We now reverse the judgment of the Court of Appeals upholding Akron’s hospitalization requirement, but affirm the remainder of the decision invalidating the provisions on parental consent, informed consent, waiting period, and disposal of fetal remains.
II
In Roe v. Wade, the Court held that the “right of privacy, . . . founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” 410 U.S., at 153 . Although the Constitution does not specifically identify this right, the [462 U.S. 416, 427] history of this Court’s constitutional adjudication leaves no doubt that “the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.” Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting from dismissal of appeal). Central among these protected liberties is an individual’s “freedom of personal choice in matters of marriage and family life.” Roe, 410 U.S., at 169 (Stewart, J., concurring). See, e. g., Eisenstadt v. Baird, 405 U.S. 438 (1972); Loving v. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 479 (1965); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923). The decision in Roe was based firmly on this long-recognized and essential element of personal liberty.
The Court also has recognized, because abortion is a medical procedure, that the full vindication of the woman’s fundamental right necessarily requires that her physician be given “the room he needs to make his best medical judgment.” Doe v. Bolton, 410 U.S. 179, 192 (1973). See Whalen v. Roe, 429 U.S. 589, 604 -605, n. 33 (1977). The physician’s exercise of this medical judgment encompasses both assisting the woman in the decisionmaking process and implementing her decision should she choose abortion. See Colautti v. Franklin, 439 U.S. 379, 387 (1979).
At the same time, the Court in Roe acknowledged that the woman’s fundamental right “is not unqualified and must be considered against important state interests in abortion.” Roe, 410 U.S., at 154 . But restrictive state regulation of the right to choose abortion, as with other fundamental rights subject to searching judicial examination, must be supported by a compelling state interest. Id., at 155. We have recognized two such interests that may justify state regulation of abortions. 10 [462 U.S. 416, 428]
First, a State has an “important and legitimate interest in protecting the potentiality of human life.” Id., at 162. Although this interest exists “throughout the course of the woman’s pregnancy,” Beal v. Doe, 432 U.S. 438, 446 (1977), it becomes compelling only at viability, the point at which the fetus “has the capability of meaningful life outside the mother’s womb,” Roe, supra, at 163. See Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 63 -65 (1976). At viability this interest in protecting the potential life of the unborn child is so important that the State may proscribe abortions altogether, “except when it is necessary to preserve the life or health of the mother.” Roe, 410 U.S., at 164 .
Second, because a State has a legitimate concern with the health of women who undergo abortions, “a State may properly assert important interests in safeguarding health [and] [462 U.S. 416, 429] in maintaining medical standards.” Id., at 154. We held in Roe, however, that this health interest does not become compelling until “approximately the end of the first trimester” of pregnancy. 11 Id., at 163. Until that time, a pregnant woman must be permitted, in consultation with her physician, [462 U.S. 416, 430] to decide to have an abortion and to effectuate that decision “free of interference by the State.” 12 Ibid.
This does not mean that a State never may enact a regulation touching on the woman’s abortion right during the first weeks of pregnancy. Certain regulations that have no significant impact on the woman’s exercise of her right may be permissible where justified by important state health objectives. In Danforth, supra, we unanimously upheld two Missouri statutory provisions, applicable to the first trimester, requiring the woman to provide her informed written consent to the abortion and the physician to keep certain records, even though comparable requirements were not imposed on most other medical procedures. See 428 U.S., at 65 -67, 79-81. The decisive factor was that the State met its burden of demonstrating that these regulations furthered important health-related state concerns. 13 But even these minor regulations on the abortion procedure during the first trimester may not interfere with physician-patient consultation or with the woman’s choice between abortion and childbirth. See id., at 81.
From approximately the end of the first trimester of pregnancy, the State “may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation [462 U.S. 416, 431] and protection of maternal health.” 14 Roe, 410 U.S., at 163 . The State’s discretion to regulate on this basis does not, however, permit it to adopt abortion regulations that depart from accepted medical practice. We have rejected a State’s attempt to ban a particular second-trimester abortion procedure, where the ban would have increased the costs and limited the availability of abortions without promoting important health benefits. See Danforth, 428 U.S., at 77 -78. If a State requires licensing or undertakes to regulate the performance of abortions during this period, the health standards adopted must be “legitimately related to the objective the State seeks to accomplish.” Doe, 410 U.S., at 195 .
III
Section 1870.03 of the Akron ordinance requires that any abortion performed “upon a pregnant woman subsequent to the end of the first trimester of her pregnancy” 15 must be [462 U.S. 416, 432] “performed in a hospital.” A “hospital” is “a general hospital or special hospital devoted to gynecology or obstetrics which is accredited by the Joint Commission on Accreditation of Hospitals or by the American Osteopathic Association.” 1870.01(B). Accreditation by these organizations requires compliance with comprehensive standards governing a wide variety of health and surgical services. 16 The ordinance thus prevents the performance of abortions in outpatient facilities that are not part of an acute-care, full-service hospital. 17
In the District Court plaintiffs sought to demonstrate that this hospitalization requirement has a serious detrimental impact on a woman’s ability to obtain a second-trimester abortion in Akron and that it is not reasonably related to the State’s interest in the health of the pregnant woman. The District Court did not reject this argument, but rather found the evidence “not . . . so convincing that it is willing to discard the Supreme Court’s formulation in Roe” of a line between impermissible first-trimester regulation and permissible second-trimester regulation. 479 F. Supp., at 1215. The Court of Appeals affirmed on a similar basis. It accepted plaintiffs’ argument that Akron’s hospitalization requirement did not have a reasonable health justification during at least part of the second trimester, but declined to “retreat from the `bright line’ in Roe v. Wade.” 651 F.2d, at [462 U.S. 416, 433] 1210. 18 We believe that the courts below misinterpreted this Court’s prior decisions, and we now hold that 1870.03 is unconstitutional.
A
In Roe v. Wade the Court held that after the end of the first trimester of pregnancy the State’s interest becomes compelling, and it may “regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.” 410 U.S., at 163 . We noted, for example, that States could establish requirements relating “to the facility in which the procedure is to be performed, that is, whether it must be in a hospital or may be a clinic or some other place of less-than-hospital status.” Ibid. In the companion case of Doe v. Bolton the Court invalidated a Georgia requirement that all abortions be performed in a hospital licensed by the State Board of Health and accredited by the Joint Commission on Accreditation of Hospitals. See 410 U.S., at 201 . We recognized the State’s legitimate health interests in establishing, for second-trimester abortions, “standards for licensing all facilities where abortions may be performed.” Id., at 195. We found, however, that “the State must show more than [was shown in Doe] in order to prove that only the full resources of [462 U.S. 416, 434] a licensed hospital, rather than those of some other appropriately licensed institution, satisfy these health interests.” Ibid. 19
We reaffirm today, see supra, at 429, n. 11, that a State’s interest in health regulation becomes compelling at approximately the end of the first trimester. The existence of a compelling state interest in health, however, is only the beginning of the inquiry. The State’s regulation may be upheld only if it is reasonably designed to further that state interest. See Doe, 410 U.S., at 195 . And the Court in Roe did not hold that it always is reasonable for a State to adopt an abortion regulation that applies to the entire second trimester. A State necessarily must have latitude in adopting regulations of general applicability in this sensitive area. But if it appears that during a substantial portion of the second trimester the State’s regulation “depart[s] from accepted medical practice,” supra, at 431, the regulation may not be upheld simply because it may be reasonable for the remaining portion of the trimester. Rather, the State is obligated to make a reasonable effort to limit the effect of its regulations to the period in the trimester during which its health interest will be furthered.
B
There can be no doubt that 1870.03’s second-trimester hospitalization requirement places a significant obstacle in the path of women seeking an abortion. A primary burden created by the requirement is additional cost to the woman. The Court of Appeals noted that there was testimony that a second-trimester abortion costs more than twice as much in a [462 U.S. 416, 435] hospital as in a clinic. See 651 F.2d, at 1209 (in-hospital abortion costs $850-$900, whereas a dilatation-and-evacuation (D&E) abortion performed in a clinic costs $350-$400). 20 Moreover, the court indicated that second-trimester abortions were rarely performed in Akron hospitals. Ibid. (only nine second-trimester abortions performed in Akron hospitals in the year before trial). 21 Thus, a second-trimester hospitalization requirement may force women to travel to find available facilities, resulting in both financial expense and additional health risk. It therefore is apparent that a second-trimester hospitalization requirement may significantly limit a woman’s ability to obtain an abortion.
Akron does not contend that 1870.03 imposes only an insignificant burden on women’s access to abortion, but rather defends it as a reasonable health regulation. This position had strong support at the time of Roe v. Wade, as hospitalization for second-trimester abortions was recommended by the American Public Health Association (APHA), see Roe, 410 U.S., at 143 -146, and the American College of Obstetricians and Gynecologist (ACOG), see Standards for Obstetric-Gynecologic Services 65 (4th ed. 1974). Since then, however, the safety of second-trimester abortions has increased [462 U.S. 416, 436] dramatically. 22 The principal reason is that the D&E procedure is now widely and successfully used for second-trimester abortions. 23 The Court of Appeals found that there was “an abundance of evidence that D&E is the safest method of performing post-first trimester abortions today.” 651 F.2d, at 1209. The availability of the D&E procedure during the interval between approximately 12 and 16 weeks of pregnancy, a period during which other second-trimester abortion techniques generally cannot be used, 24 has meant that women desiring an early second-trimester abortion no longer are forced to incur the health risks of waiting until at least the 16th week of pregnancy.
For our purposes, an even more significant factor is that experience indicates that D&E may be performed safely on an outpatient basis in appropriate nonhospital facilities. The evidence is strong enough to have convinced the APHA to abandon its prior recommendation of hospitalization for all second-trimester abortions:
-
- “Current data show that abortions occurring in the second trimester can be safely performed by the Dilatation and Evacuation (D and E) procedure. . . . Requirements that all abortions after 12 weeks of gestation be performed in hospitals increase the expense and inconvenience to the woman without contributing to the safety of the procedure.” APHA Recommended Program
- Guide for Abortion Services (Revised 1979), 70 Am. J. Public Health 652, 654 (1980) (hereinafter APHA Recommended Guide).
Similarly, the ACOG no longer suggests that all second-trimester abortions be performed in a hospital. It recommends that abortions performed in a physician’s office or outpatient clinic be limited to 14 weeks of pregnancy, but it indicates that abortions may be performed safely in “a hospital-based or in a free-standing ambulatory surgical facility, or in an outpatient clinic meeting the criteria required for a free-standing surgical facility,” until 18 weeks of pregnancy. ACOG, Standards for Obstetric-Gynecologic Services 54 (5th ed. 1982).
These developments, and the professional commentary supporting them, constitute impressive evidence that – at least during the early weeks of the second trimester – D&E abortions may be performed as safely in an outpatient clinic as in a full-service hospital. 25 We conclude, therefore, that “present medical knowledge,” Roe, supra, at 163, convincingly undercuts Akron’s justification for requiring that all second-trimester abortions be performed in a hospital. 26 [462 U.S. 416, 438]
Akron nonetheless urges that “[t]he fact that some midtrimester abortions may be done in a minimally equipped clinic does not invalidate the regulation.” 27 Brief for Respondents in No. 81-1172, p. 19. It is true that a state abortion regulation is not unconstitutional simply because it does not correspond perfectly in all cases to the asserted state interest. But the lines drawn in a state regulation must be reasonable, and this cannot be said of 1870.03. By preventing the performance of D&E abortions in an appropriate nonhospital setting, Akron has imposed a heavy, and unnecessary, burden on women’s access to a relatively inexpensive, otherwise accessible, and safe abortion procedure. 28 Section 1870.03 has “the effect of inhibiting . . . the vast majority of abortions after the first 12 weeks,” Danforth, 428 U.S., at 79 , and [462 U.S. 416, 439] therefore unreasonably infringes upon a woman’s constitutional right to obtain an abortion.
IV
We turn next to 1870.05(B), the provision prohibiting a physician from performing an abortion on a minor pregnant woman under the age of 15 unless he obtains “the informed written consent of one of her parents or her legal guardian” or unless the minor obtains “an order from a court having jurisdiction over her that the abortion be performed or induced.” The District Court invalidated this provision because “[i]t does not establish a procedure by which a minor can avoid a parental veto of her abortion decision by demonstrating that her decision is, in fact, informed. Rather, it requires, in all cases, both the minor’s informed consent and either parental consent or a court order.” 479 F. Supp., at 1201. The Court of Appeals affirmed on the same basis. 29
The relevant legal standards are not in dispute. The Court has held that “the State may not impose a blanket provision . . . requiring the consent of a parent or person in loco parentis as a condition for abortion of an unmarried minor.” Danforth, supra, at 74. In Bellotti v. Baird, 443 U.S. 622 (1979) (Bellotti II), a majority of the Court indicated that a State’s interest in protecting immature minors will sustain a requirement of a consent substitute, either parental or judicial. See id., at 640-642 (plurality opinion for four Justices); id., at 656-657 (WHITE, J., dissenting) (expressing approval of absolute parental or judicial consent requirement). See also Danforth, supra, at 102-105 (STEVENS, J., concurring in part and dissenting in part). The Bellotti II plurality cautioned, however, that the State must provide an alternative procedure whereby a pregnant minor may demonstrate that she is sufficiently mature to make the abortion decision herself [462 U.S. 416, 440] or that, despite her immaturity, an abortion would be in her best interests. 443 U.S., at 643 -644. Under these decisions, it is clear that Akron may not make a blanket determination that all minors under the age of 15 are too immature to make this decision or that an abortion never may be in the minor’s best interest without parental approval.
Akron’s ordinance does not create expressly the alternative procedure required by Bellotti II. But Akron contends that the Ohio Juvenile Court will qualify as a “court having jurisdiction” within the meaning of 1870.05(B), and that “it is not to be assumed that during the course of the juvenile proceedings the Court will not construe the ordinance in a manner consistent with the constitutional requirement of a determination of the minor’s ability to make an informed consent.” Brief for Petitioner in No. 81-746, p. 28. Akron concludes that the courts below should not have invalidated 1870.05(B) on its face. The city relies on Bellotti v. Baird, 428 U.S. 132 (1976) (Bellotti I), in which the Court did not decide whether a State’s parental consent provisions were unconstitutional as applied to mature minors, holding instead that “abstention is appropriate where an unconstrued state statute is susceptible of a construction by the state judiciary `which might avoid in whole or in part the necessity for federal constitutional adjudication, or at least materially change the nature of the problem.'” Id., at 146-147 (quoting Harrison v. NAACP, 360 U.S. 167, 177 (1959)). See also H. L. v. Matheson, 450 U.S. 398 (1981) (refusing to decide whether parental notice statute would be constitutional as applied to mature minors). 30 [462 U.S. 416, 441]
JUSTICE O’CONNOR, with whom JUSTICE WHITE and JUSTICE REHNQUIST join, dissenting.
In Roe v. Wade, 410 U.S. 113 (1973), the Court held that the “right of privacy . . . founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Id., at 153. The parties in these cases have not asked the Court to re-examine the validity of that holding and the court below did not address it. Accordingly, the Court does not re-examine its previous holding. Nonetheless, it is apparent from the Court’s opinion that neither sound constitutional theory nor our need to decide cases based on the application of neutral principles can accommodate an analytical framework that varies according to the “stages” of pregnancy, where those stages, and their concomitant standards of review, differ according to the level of medical technology available when a particular challenge to state regulation occurs. The Court’s analysis of the Akron regulations is inconsistent both with [462 U.S. 416, 453] the methods of analysis employed in previous cases dealing with abortion, and with the Court’s approach to fundamental rights in other areas.
Our recent cases indicate that a regulation imposed on “a lawful abortion `is not unconstitutional unless it unduly burdens the right to seek an abortion.'” Maher v. Roe, 432 U.S. 464, 473 (1977) (quoting Bellotti v. Baird, 428 U.S. 132, 147 (1977) (Bellotti I)). See also Harris v. McRae, 448 U.S. 297, 314 (1980). In my view, this “unduly burdensome” standard should be applied to the challenged regulations throughout the entire pregnancy without reference to the particular “stage” of pregnancy involved. If the particular regulation does not “unduly burde[n]” the fundamental right, Maher, supra, at 473, then our evaluation of that regulation is limited to our determination that the regulation rationally relates to a legitimate state purpose. Irrespective of what we may believe is wise or prudent policy in this difficult area, “the Constitution does not constitute us as `Platonic Guardians’ nor does it vest in this Court the authority to strike down laws because they do not meet our standards of desirable social policy, `wisdom,’ or `common sense.'” Plyler v. Doe, 457 U.S. 202, 242 (1982) (BURGER, C. J., dissenting).
I
The trimester or “three-stage” approach adopted by the Court in Roe, 1 and, in a modified form, employed by the [462 U.S. 416, 454] Court to analyze the regulations in these cases, cannot be supported as a legitimate or useful framework for accommodating the woman’s right and the State’s interests. The decision of the Court today graphically illustrates why the trimester approach is a completely unworkable method of accommodating the conflicting personal rights and compelling state interests that are involved in the abortion context.
As the Court indicates today, the State’s compelling interest in maternal health changes as medical technology changes, and any health regulation must not “depart from accepted medical practice.” Ante, at 431. 2 In applying this standard, the Court holds that “the safety of second-trimester abortions has increased dramatically” since 1973, when [462 U.S. 416, 455] Roe was decided. Ante, at 435-436 (footnote omitted). Although a regulation such as one requiring that all second-trimester abortions be performed in hospitals “had strong support” in 1973 “as a reasonable health regulation,” ante, at 435, this regulation can no longer stand because, according to the Court’s diligent research into medical and scientific literature, the dilation and evacuation (D&E) procedure, used in 1973 only for first-trimester abortions, “is now widely and successfully used for second-trimester abortions.” Ante, at 436 (footnote omitted). Further, the medical literature relied on by the Court indicates that the D&E procedure may be performed in an appropriate nonhospital setting for “at least . . . the early weeks of the second trimester . . . .” Ante, at 437. The Court then chooses the period of 16 weeks of gestation as that point at which D&E procedures may be performed safely in a nonhospital setting, and thereby invalidates the Akron hospitalization regulation.
It is not difficult to see that despite the Court’s purported adherence to the trimester approach adopted in Roe, the lines drawn in that decision have now been “blurred” because of what the Court accepts as technological advancement in the safety of abortion procedure. The State may no longer rely on a “bright line” that separates permissible from impermissible regulation, and it is no longer free to consider the second trimester as a unit and weigh the risks posed by all abortion procedures throughout that trimester. 3 Rather, [462 U.S. 416, 456] the State must continuously and conscientiously study contemporary medical and scientific literature in order to determine whether the effect of a particular regulation is to “depart from accepted medical practice” insofar as particular procedures and particular periods within the trimester are concerned. Assuming that legislative bodies are able to engage in this exacting task, 4 it is difficult to believe that our Constitution requires that they do it as a prelude to protecting the health of their citizens. It is even more difficult to believe that this Court, without the resources available to those bodies entrusted with making legislative choices, believes itself competent to make these inquiries and to revise these standards every time the American College of Obstetricians and Gynecologists (ACOG) or similar group revises its views about what is and what is not appropriate medical procedure in this area. Indeed, the ACOG Standards on which the Court relies were changed in 1982 after trial in the present cases. Before ACOG changed its Standards in 1982, it recommended that all mid-trimester abortions be performed in a hospital. See 651 F.2d 1198, 1209 (CA6 1981). As today’s decision indicates, medical technology is changing, and this change will necessitate our continued functioning as the Nation’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 Missouri v. Danforth, 428 U.S. 52, 99 (1976) (WHITE, J., concurring in part and dissenting in part).
Just as improvements in medical technology inevitably will move forward the point at which the State may regulate for reasons of maternal health, different technological improvements will move backward the point of viability at which the [462 U.S. 416, 457] State may proscribe abortions except when necessary to preserve the life and health of the mother.
In 1973, viability before 28 weeks was considered unusual. The 14th edition of L. Hellman & J. Pritchard, Williams Obstetrics (1971), on which the Court relied in Roe for its understanding of viability, stated, at 493, that “[a]ttainment of a [fetal] weight of 1,000g [or a fetal age of approximately 28 weeks’ gestation] is . . . widely used as the criterion of viability.” However, recent studies have demonstrated increasingly earlier fetal viability. 5 It is certainly reasonable to believe that fetal viability in the first trimester of pregnancy may be possible in the not too distant future. Indeed, the Court has explicitly acknowledged that Roe left the point of viability “flexible for anticipated advancements in medical skill.” Colautti v. Franklin, 439 U.S. 379, 387 (1979). “[W]e recognized in Roe that viability was a matter of medical [462 U.S. 416, 458] judgment, skill, and technical ability, and we preserved the flexibility of the term.” Danforth, supra, at 64.
The Roe framework, then, is clearly on a collision course with itself. As the medical risks of various abortion procedures decrease, the point at which the State may regulate for reasons of maternal health is moved further forward to actual childbirth. As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception. Moreover, it is clear that the trimester approach violates the fundamental aspiration of judicial decisionmaking through the application of neutral principles “sufficiently absolute to give them roots throughout the community and continuity over significant periods of time . . . .” A. Cox, The Role of the Supreme Court in American Government 114 (1976). The Roe framework is inherently tied to the state of medical technology that exists whenever particular litigation ensues. Although legislatures are better suited to make the necessary factual judgments in this area, the Court’s framework forces legislatures, as a matter of constitutional law, to speculate about what constitutes “accepted medical practice” at any given time. Without the necessary expertise or ability, courts must then pretend to act as science review boards and examine those legislative judgments.
The Court adheres to the Roe framework because the doctrine of stare decisis “demands respect in a society governed by the rule of law.” Ante, at 420. Although respect for stare decisis cannot be challenged, “this Court’s considered practice [is] not to apply stare decisis as rigidly in constitutional as in nonconstitutional cases.” Glidden Co. v. Zdanok, 370 U.S. 530, 543 (1962). Although we must be mindful of the “desirability of continuity of decision in constitutional questions . . . when convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment and not upon legislative action this Court throughout its history [462 U.S. 416, 459] has freely exercised its power to reexamine the basis of its constitutional decisions.” Smith v. Allwright, 321 U.S. 649, 665 (1944) (footnote omitted).
Even assuming that there is a fundamental right to terminate pregnancy in some situations, there is no justification in law or logic for the trimester framework adopted in Roe and employed by the Court today on the basis of stare decisis. For the reasons stated above, that framework is clearly an unworkable means of balancing the fundamental right and the compelling state interests that are indisputably implicated.
II
The Court in Roe correctly realized that the State has important interests “in the areas of health and medical standards” and that “[t]he State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient.” 410 U.S., at 149 -150. The Court also recognized that the State has “another important and legitimate interest in protecting the potentiality of human life.” Id., at 162 (emphasis in original). I agree completely that the State has these interests, but in my view, the point at which these interests become compelling does not depend on the trimester of pregnancy. Rather, these interests are present throughout pregnancy.
This Court has never failed to recognize that “a State may properly assert important interests in safeguarding health [and] in maintaining medical standards.” Id., at 154. It cannot be doubted that as long as a state statute is within “the bounds of reason and [does not] assum[e] the character of a merely arbitrary fiat . . . [then] [t]he State . . . must decide upon measures that are needful for the protection of its people . . . .” Purity Extract and Tonic Co. v. Lynch, 226 U.S. 192, 204 -205 (1912). “There is nothing in the United States Constitution which limits the State’s power to require that medical procedures be done safely . . . .” Sendak v. [462 U.S. 416, 460] Arnold, 429 U.S. 968, 969 (1976) (WHITE, J., dissenting). “The mode and procedure of medical diagnostic procedures is not the business of judges.” Parham v. J. R., 442 U.S. 584, 607 -608 (1979). Under the Roe framework, however, the state interest in maternal health cannot become compelling until the onset of the second trimester of pregnancy because “until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth.” 410 U.S., at 163 . Before the second trimester, the decision to perform an abortion “must be left to the medical judgment of the pregnant woman’s attending physician.” Id., at 164. 6
The fallacy inherent in the Roe framework is apparent: just because the State has a compelling interest in ensuring maternal safety once an abortion may be more dangerous than childbirth, it simply does not follow that the State has no interest before that point that justifies state regulation to ensure that first-trimester abortions are performed as safely as possible. 7
The state interest in potential human life is likewise extant throughout pregnancy. In Roe, the Court held that [462 U.S. 416, 461] although the State had an important and legitimate interest in protecting potential life, that interest could not become compelling until the point at which the fetus was viable. The difficulty with this analysis is clear: potential life is no less potential in the first weeks of pregnancy than it is at viability or afterward. At any stage in pregnancy, there is the potential for human life. Although the Court refused to “resolve the difficult question of when life begins,” id., at 159, the Court chose the point of viability – when the fetus is capable of life independent of its mother – to permit the complete proscription of abortion. The choice of viability as the point at which the state interest in potential life becomes compelling is no less arbitrary than choosing any point before viability or any point afterward. Accordingly, I believe that the State’s interest in protecting potential human life exists throughout the pregnancy.
III
Although the State possesses compelling interests in the protection of potential human life and in maternal health throughout pregnancy, not every regulation that the State imposes must be measured against the State’s compelling interests and examined with strict scrutiny. This Court has acknowledged that “the right in Roe v. Wade can be understood only by considering both the woman’s interest and the nature of the State’s interference with it. Roe did not declare an unqualified `constitutional right to an abortion’ . . . . Rather, the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy.” Maher, 432 U.S., at 473 -474. The Court and its individual Justices have repeatedly utilized the “unduly burdensome” standard in abortion cases. 8 [462 U.S. 416, 462]
The requirement that state interference “infringe substantially” or “heavily burden” a right before heightened scrutiny is applied is not novel in our fundamental-rights jurisprudence, or restricted to the abortion context. In San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 37 -38 (1973), we observed that we apply “strict judicial scrutiny” only when legislation may be said to have “`deprived,’ `infringed,’ or `interfered’ with the free exercise of some such fundamental personal right or liberty.” If the impact of the regulation does not rise to the level appropriate for our strict scrutiny, then our inquiry is limited to whether the state law bears “some rational relationship to legitimate state purposes.” Id., at 40. Even in the First Amendment context, we have required in some circumstances that state laws “infringe substantially” on protected conduct, Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 545 [462 U.S. 416, 463] (1963), or that there be “a significant encroachment upon personal liberty,” Bates v. City of Little Rock, 361 U.S. 516, 524 (1960).
In Carey v. Population Services International, 431 U.S. 678 (1977), we eschewed the notion that state law had to meet the exacting “compelling state interest” test “`whenever it implicates sexual freedom.'” Id., at 688, n. 5. Rather, we required that before the “strict scrutiny” standard was employed, it was necessary that the state law “impos[e] a significant burden” on a protected right, id., at 689, or that it “burden an individual’s right to decide to prevent conception or terminate pregnancy by substantially limiting access to the means of effectuating that decision . . . .” Id., at 688 (emphasis added). The Court stressed that “even a burdensome regulation may be validated by a sufficiently compelling state interest.” Id., at 686. Finally, Griswold v. Connecticut, 381 U.S. 479, 485 (1965), recognized that a law banning the use of contraceptives by married persons had “a maximum destructive impact” on the marital relationship.
Indeed, the Court today follows this approach. Although the Court does not use the expression “undue burden,” the Court recognizes that even a “significant obstacle” can be justified by a “reasonable” regulation. See ante, at 434, 435, 438.
The “undue burden” required in the abortion cases represents the required threshold inquiry that must be conducted before this Court can require a State to justify its legislative actions under the exacting “compelling state interest” standard. “[A] test so severe that legislation rarely can meet it should be imposed by courts with deliberate restraint in view of the respect that properly should be accorded legislative judgments.” Carey, supra, at 705 (POWELL, J., concurring in part and concurring in judgment).
The “unduly burdensome” standard is particularly appropriate in the abortion context because of the nature and scope of the right that is involved. The privacy right involved in the abortion context “cannot be said to be absolute.” Roe, [462 U.S. 416, 464] 410 U.S., at 154 . “Roe did not declare an unqualified `constitutional right to an abortion.'” Maher, 432 U.S., at 473 . Rather, the Roe right is intended to protect against state action “drastically limiting the availability and safety of the desired service,” id., at 472, against the imposition of an “absolute obstacle” on the abortion decision, Danforth, 428 U.S., at 70 -71, n. 11, or against “official interference” and “coercive restraint” imposed on the abortion decision, Harris, 448 U.S., at 328 (WHITE, J., concurring). That a state regulation may “inhibit” abortions to some degree does not require that we find that the regulation is invalid. See H. L. v. Matheson, 450 U.S. 398, 413 (1981).
The abortion cases demonstrate that an “undue burden” has been found for the most part in situations involving absolute obstacles or severe limitations on the abortion decision. In Roe, the Court invalidated a Texas statute that criminalized all abortions except those necessary to save the life of the mother. In Danforth, the Court invalidated a state prohibition of abortion by saline amniocentesis because the ban had “the effect of inhibiting . . . the vast majority of abortions after the first 12 weeks.” 428 U.S., at 79 . The Court today acknowledges that the regulation in Danforth effectively represented “a complete prohibition on abortions in certain circumstances.” Ante, at 429, n. 11 (emphasis added). In Danforth, the Court also invalidated state regulations requiring parental or spousal consent as a prerequisite to a first-trimester abortion because the consent requirements effectively and impermissibly delegated a “veto power” to parents and spouses during the first trimester of pregnancy. In both Bellotti I, 428 U.S. 132 (1977), and Bellotti v. Baird, 443 U.S. 622 (1979) (Bellotti II), the Court was concerned with effective parental veto over the abortion decision. 9 [462 U.S. 416, 465]
In determining whether the State imposes an “undue burden,” we must keep in mind that when we are concerned with extremely sensitive issues, such as the one involved here, “the appropriate forum for their resolution in a democracy is the legislature. We should not forget that `legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.’ Missouri, K. & T. R. Co. v. May, 194 U.S. 267, 270 (1904) (Holmes, J.).” Maher, 432 U.S., at 479 -480 (footnote omitted). This does not mean that in determining whether a regulation imposes an “undue burden” on the Roe right we defer to the judgments made by state legislatures. “The point is, rather, that when we face a complex problem with many hard questions and few easy answers we do well to pay careful attention to how the other branches of Government have addressed the same problem.” Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 103 (1973). 10 [462 U.S. 416, 466]
We must always be mindful that “[t]he Constitution does not compel a state to fine-tune its statutes so as to encourage or facilitate abortions. To the contrary, state action `encouraging childbirth except in the most urgent circumstances’ is `rationally related to the legitimate governmental objective of protecting potential life.’ Harris v. McRae, 448 U.S., at 325 . Accord, Maher v. Roe, supra, at 473-474.” H. L. v. Matheson, supra, at 413 (footnote omitted).
IV
A
Section 1870.03 of the Akron ordinance requires that second-trimester abortions be performed in hospitals. The Court holds that this requirement imposes a “significant obstacle” in the form of increased costs and decreased availability of abortions, ante, at 434-435, 435, and the Court rejects the argument offered by the State that the requirement is a reasonable health regulation under Roe, 410 U.S., at 163 . See ante, at 435-436.
For the reasons stated above, I find no justification for the trimester approach used by the Court to analyze this restriction. I would apply the “unduly burdensome” test and find that the hospitalization requirement does not impose an undue burden on that decision.
The Court’s reliance on increased abortion costs and decreased availability is misplaced. As the city of Akron points out, there is no evidence in this case to show that the two Akron hospitals that performed second-trimester abortions denied an abortion to any woman, or that they would not permit abortion by the D&E procedure. See Reply Brief for Petitioner in No. 81-746, p. 3. In addition, there was no evidence presented that other hospitals in nearby areas did not provide second-trimester abortions. Further, almost any state regulation, including the licensing requirements [462 U.S. 416, 467] that the Court would allow, see ante, at 437-438, n. 26, inevitably and necessarily entails increased costs for any abortion. In Simopoulos v. Virginia, post, p. 506, the Court upholds the State’s stringent licensing requirements that will clearly involve greater cost because the State’s licensing scheme “is not an unreasonable means of furthering the State’s compelling interest in” preserving maternal health. Post, at 519. Although the Court acknowledges this indisputably correct notion in Simopoulos, it inexplicably refuses to apply it in this case. A health regulation, such as the hospitalization requirement, simply does not rise to the level of “official interference” with the abortion decision. See Harris, supra, at 328 (WHITE, J., concurring).
Health-related factors that may legitimately be considered by the State go well beyond what various medical organizations have to say about the physical safety of a particular procedure. Indeed, “all factors – physical, emotional, psychological, familial, and the woman’s age – [are] relevant to the well-being of the patient.” Doe v. Bolton, 410 U.S. 179, 192 (1973). The ACOG Standards, upon which the Court relies, state that “[r]egardless of advances in abortion technology, midtrimester terminations will likely remain more hazardous, expensive, and emotionally disturbing for a woman than early abortions.” American College of Obstetricians and Gynecologists, Technical Bulletin No. 56: Methods of Midtrimester Abortion 4 (Dec. 1979).
The hospitalization requirement does not impose an undue burden, and it is not necessary to apply an exacting standard of review. Further, the regulation has a “rational relation” to a valid state objective of ensuring the health and welfare of its citizens. See Williamson v. Lee Optical Co., 348 U.S. 483, 491 (1955). 11 [462 U.S. 416, 468]
B
Section 1870.05(B)(2) of the Akron ordinance provides that no physician shall perform an abortion on a minor under 15 years of age unless the minor gives written consent, and the physician first obtains the informed written consent of a parent or guardian, or unless the minor first obtains “an order from a court having jurisdiction over her that the abortion be performed or induced.” Despite the fact that this regulation has yet to be construed in the state courts, the Court holds that the regulation is unconstitutional because it is not “reasonably susceptible of being construed to create an `opportunity for case-by-case evaluations of the maturity of pregnant minors.'” Ante, at 441 (quoting Bellotti II, 443 U.S., at 643 -644, n. 23 (plurality opinion)). I believe that the Court should have abstained from declaring the ordinance unconstitutional.
In Bellotti I, the Court abstained from deciding whether a state parental consent provision was unconstitutional as [462 U.S. 416, 469] applied to mature minors. The Court recognized and respected the well-settled rule that abstention is proper “where an unconstrued state statute is susceptible of a construction by the state judiciary `which might avoid in whole or in part the necessity for federal constitutional adjudication, or at least materially change the nature of the problem.'” 428 U.S., at 147 (quoting Harrison v. NAACP, 360 U.S. 167, 177 (1959)). While acknowledging the force of the abstention doctrine, see ante, at 440-441, the Court nevertheless declines to apply it. Instead, it speculates that a state juvenile court might inquire into a minor’s maturity and ability to decide to have an abortion in deciding whether the minor is being provided “`surgical care . . . necessary for his health, morals, or well being,'” ante at 441, n. 31 (quoting Ohio Rev. Code Ann. 2151.03 (1976)). The Court ultimately rejects this possible interpretation of state law, however, because filing a petition in juvenile court requires parental notification, an unconstitutional condition insofar as mature minors are concerned.
Assuming, arguendo, that the Court is correct in holding that a parental notification requirement would be unconstitutional as applied to mature minors, 12 I see no reason to assume that the Akron ordinance and the State Juvenile Court statute compel state judges to notify the parents of a mature minor if such notification was contrary to the minor’s best interests. Further, there is no reason to believe that the state [462 U.S. 416, 470] courts would construe the consent requirement to impose any type of parental or judicial veto on the abortion decisions of mature minors. In light of the Court’s complete lack of knowledge about how the Akron ordinance will operate, and how the Akron ordinance and the State Juvenile Court statute interact, our “`scrupulous regard for the rightful independence of state governments'” counsels against “unnecessary interference by the federal courts with proper and validly administered state concerns, a course so essential to the balanced working of our federal system.” Harrison v. NAACP, supra, at 176 (quoting Matthews v. Rodgers, 284 U.S. 521, 525 (1932)).
C
The Court invalidates the informed-consent provisions of 1870.06(B) and 1870.06(C) of the Akron ordinance. 13 Although it finds that subsections (1), (2), (6), and (7) of 1870.06(B) are “certainly . . . not objectionable,” ante, at 445-446, n. 37, it refuses to sever those provisions from subsections (3), (4), and (5) because the city requires that the “acceptable” information be provided by the attending physician when “much, if not all of it, could be given by a qualified person assisting the physician,” ibid. Despite the fact that the Court finds that 1870.06(C) “properly leaves the precise nature and amount of . . . disclosure to the physician’s discretion [462 U.S. 416, 471] and `medical judgment,'” ante, at 447, the Court also finds 1870.06(C) unconstitutional because it requires that the disclosure be made by the attending physician, rather than by other “qualified persons” who work at abortion clinics.
We have approved informed-consent provisions in the past even though the physician was required to deliver certain information to the patient. In Danforth, the Court upheld a state informed-consent requirement because “[t]he decision to abort, indeed, is an important, and often a stressful one, and it is desirable and imperative that it be made with full knowledge of its nature and consequences.” 428 U.S., at 67 . 14 In H. L. v. Matheson, the Court noted that the state statute in the case required that the patient “be advised at a minimum about available adoption services, about fetal development, and about foreseeable complications and risks of an abortion. See Utah Code Ann. 76-7-305 (1978). In Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 65 -67 (1976), we rejected a constitutional attack on written consent provisions.” 450 U.S., at 400 -401, n. 1. Indeed, we have held that an informed-consent provision does not “unduly burde[n] the right to seek an abortion.” Bellotti I, 428 U.S., at 147 . 15
The validity of subsections (3), (4), and (5) is not before the Court because it appears that the city of Akron conceded their unconstitutionality before the court below. See Brief [462 U.S. 416, 472] for City of Akron in No. 79-3757 (CA6), p. 35; Reply Brief for City of Akron in No. 79-3757 (CA6), pp. 5-9. In my view, the remaining subsections of 1870.06(B) are separable from the subsections conceded to be unconstitutional. Section 1870.19 contains a separability clause which creates a “`presumption of divisibility'” and places “the burden . . . on the litigant who would escape its operation.” Carter v. Carter Coal Co., 298 U.S. 238, 335 (1936) (opinion of Cardozo, J.). Akron Center has failed to show that severance of subsections (3), (4), and (5) would “create a program quite different from the one the legislature actually adopted.” Sloan v. Lemon, 413 U.S. 825, 834 (1973).
The remainder of 1870.06(B), and 1870.06(C), impose no undue burden or drastic limitation on the abortion decision. The city of Akron is merely attempting to ensure that the decision to abort is made in light of that knowledge that the city deems relevant to informed choice. As such, these regulations do not impermissibly affect any privacy right under the Fourteenth Amendment. 16
D
Section 1870.07 of the Akron ordinance requires a 24-hour waiting period between the signing of a consent form and the actual performance of the abortion, except in cases of emergency. See 1870.12. The court below invalidated this requirement because it affected abortion decisions during the first trimester of pregnancy. The Court affirms the decision below, not on the ground that it affects early abortions, but because “Akron has failed to demonstrate that any legitimate state interest is furthered by an arbitrary and inflexible waiting [462 U.S. 416, 473] period.” Ante, at 450. The Court accepts the arguments made by Akron Center that the waiting period increases the costs of obtaining an abortion by requiring the pregnant woman to make two trips to the clinic, and increases the risks of abortion through delay and scheduling difficulties. The decision whether to proceed should be left to the physician’s “`discretion in the exercise of his medical judgment.'” Ibid. (quoting Colautti, 439 U.S., at 387 ).
It is certainly difficult to understand how the Court believes that the physician-patient relationship is able to accommodate any interest that the State has in maternal physical and mental well-being in light of the fact that the record in this case shows that the relationship is nonexistent. See 651 F.2d, at 1217 (Kennedy, J., concurring in part and dissenting in part). It is also interesting to note that the American College of Obstetricians and Gynecologists recommends that “[p]rior to abortion, the woman should have access to special counseling that explores options for the management of an unwanted pregnancy, examines the risks, and allows sufficient time for reflection prior to making an informed decision.” 1982 ACOG Standards for Obstetric-Gynecologic Services, at 54.
The waiting period does not apply in cases of medical emergency. Therefore, should the physician determine that the waiting period would increase risks significantly, he or she need not require the woman to wait. The Court’s concern in this respect is simply misplaced. Although the waiting period may impose an additional cost on the abortion decision, this increased cost does not unduly burden the availability of abortions or impose an absolute obstacle to access to abortions. Further, the State is not required to “fine-tune” its abortion statutes so as to minimize the costs of abortions. H. L. v. Matheson, 450 U.S., at 413 .
